Thla Ceu and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 2149

Thla Ceu and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2149 (6 July 2022)

Division: GENERAL DIVISION 

File Number(s):2020/7069      

Re:Ngun Bik Thla Ceu  

APPLICANT

AndMinister for Immigration Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:6 July 2022

Place:Melbourne

The decision under review is set aside. I substitute a decision that the Applicant does satisfy the identity requirements under s 24(3) of the Australian Citizenship Act 2007 (Cth) and I am satisfied no remaining reason has been argued in support of such a decision to justify his application being refused.

.............................[SGD]..........................................

Dr Damien Cremean, Senior Member

CATCHWORDS

CITIZENSHIP – application for conferral of Australian citizenship – identity – whether Tribunal is satisfied of Applicant’s identity – s 24 Australian Citizenship Act 2007 (Cth) – documents unavailable to refugees and undocumented people from undeveloped countries – Myanmar – truthful witnesses – insufficiency of evidence argument rejected – Tribunal satisfied of Applicant’s identity – decision set aside

LEGISLATION

Australian Citizenship Act 2007 (Cth)

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

6 July 2022

INTRODUCTION

1. The Applicant, Mr Ngun Bik Thla Ceu, applies to review the decision of a delegate of the Respondent made on 25 September 2020 under s 24(1) of the Australian Citizenship Act 2007 (Cth) (‘Act’) to refuse his application for Australian citizenship by conferral.

2. The Applicant had lodged his application for citizenship under that Act on 20 September 2017 — now nearly five years ago.

3. The basis of the decision is that the delegate was not satisfied of the Applicant’s identity under s 24(3) of the Act.

4. The Applicant subsequently made application to review that decision and wrote ‘to express my discontentment with the Home Affairs’ [sic] decision … requiring me [to] identify documents some of which are unavailable for refugees and undocumented people from undeveloped countries’. The country in question is Myanmar.

5. The Applicant argues there is no basis for a finding that he does not satisfy s 24(3) of the Act and that, therefore, the decision under review should be set aside.

6. The Respondent, via Closing Submissions prepared by Mr David Brown, argues to the contrary, and maintains that the decision under review should be affirmed as ‘there is insufficient evidence for the Tribunal to be satisfied of the applicant’s identity.’

7. In light of matters arising in some other case, I take particular note of the fact that Mr Brown supports that the decision under review is based on s 24(3) of the Act and not under any other provision. Identity was confirmed by Ms Hicks as the sole issue.

8. In other words, if the Applicant succeeds on the question of identity, I can see no other basis advanced by the Respondent to deny him citizenship under the Act.

   LEGISLATION

9. Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen. Section 24(1A) requires that ‘[t]he Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under sub-s 21(2), (3), (4), (5), (6), (7) or (8).’

10. Relevantly, s 24(3) of the Act provides that ‘[t]he Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.’

    HEARING

11. The hearing was conducted on 13 July 2021 and resumed on 23 February 2022 so as to enable the Tribunal to receive and consider further evidence.

12. The Applicant was self-represented and gave affirmed evidence by interpreter.

13. Evidence was also given on his behalf by way of affirmation by his wife, Mrs Tial Tin Thla Ceu, Mr Peng Thang Lian Ching and Mrs Tin Tlem Lian Ching.

14. The Respondent was represented by Ms Hicks of the Australian Government Solicitor, who cross-examined each of the witnesses. The Respondent, however, called no witnesses.

    EVIDENCE IN APPLICANT’S CASE

15. In summary, the Applicant gave affirmed evidence at the first day of the hearing that his name is Ngun Bik Thla Ceu of an address in Melbourne; and that he came from Myanmar as a refugee by boat via Malaysia (where he arrived in 2008). He was single and not a married man. He was born on 20 September 1976.

16. When filling out his forms in Malaysia, he gave only his first name — Ngun Bik.

17. He said he is now married in Australia but has no children of his own.

18. He said he is a member of a Church group in Australia.

19. At this point, I considered I should adjourn the proceeding to enable his wife to give evidence on the question of the Applicant’s identity.

20. At the resumed hearing, the Applicant was cross-examined, but cross-examination was uneventful.

21. Also at the resumed hearing, Mrs Thla Ceu gave affirmed evidence that Ngun Bik Thla Ceu — the Applicant — is her husband and that they married in a Church on 30 May 2020. She said she had known her husband ‘for long time back in Myanmar’. She said she was born on 30 June 1973. She said she had been married before, but her husband had died in 2002, possibly of malaria in India. She said she and her husband are both factory workers in the same factory in Bayswater. They do not have children together, but she said she has four children from her first marriage. Mrs Thla Ceu and her husband and children, along with a grandchild, live in the same house in Chirnside Park, a suburb of Melbourne.

22. Mrs Thla Ceu said she came to Australia in February 2012.

23. None of the evidence given by Mrs Thla Ceu was challenged in cross-examination, and Ms Hicks quite correctly did not disagree that the evidence of Mrs Thla Ceu was quite strong.

24. Mr Lian Ching then gave affirmed evidence. He said he was from Myanmar, but he came to Australia in 2012. He said his wife is an Australian citizen, but he is not one yet.

25. He said he knows the Applicant (as Ngun Bik) and has known him since village life in Myanmar. They visit each other socially and his wife and the Applicant’s wife also know each other.

26. Mr Lian Ching said the Applicant is a truthful person and that he could confirm that ‘this is the person that he used to know before as well’. 

27. Cross-examination of Mr Lian Ching was uneventful.

28. Affirmed evidence was then given by Mrs Lian Ching, who said she knows the Applicant’s wife ‘well’ and that she also knows the Applicant ‘well’ too.

29. Cross-examination once again was uneventful.

    CONSIDERATION

30. In light of the evidence before the Tribunal — particularly that of the Applicant and his wife, together with documents on file — it is embarrassing to read Mr Brown for the Respondent still maintaining an insufficiency of evidence relating to identity without having heard the evidence.

31. The Respondent seems to be relying on a documentary analysis of the case without regard to the evidence I saw and heard.

32. That hardly can qualify as Closing Submissions. It is simply a repetition of Departmental views already known. This seems to me to be quite unreasonable and oppressive — without regard to the evidence actually heard. It has little to recommend it and it is surprising. These cases should not be a matter of trying to be the winner.

33. I regard the Applicant as the person he claims to be. I am satisfied he is a truthful person and that his identity is supported by other evidence — particularly that of his wife, who I also regard as a truthful person.

34. Further, I regard Mr and Mrs Lian Ching as truthful witnesses, whose evidence clearly supports the Applicant.

35. I note as well the absence of any real challenge to the evidence of any of the witnesses in cross-examination.

36. In that regard, I note also the frank statement properly made by Ms Hicks and to her credit.

    CONCLUSION

37. I am fully satisfied of the identity of the Applicant as he claims it to be.

38. I am therefore satisfied that the requirements of s 24(3) of the Act also are satisfied.

    DECISION

39. Accordingly, the decision under review is set aside.

40. I find the Applicant does satisfy s 24(3) of the Act and there is no remaining reason put in argument in support of the decision under review to justify his application for citizenship being refused.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

..............................[SGD]..........................................

Associate

Dated: 6 July 2022

Dates of hearing:	13 July 2021 and 23 February 2022
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Ms Olivia Hicks
Solicitor for the Respondent:	Australian Government Solicitor