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

[2022] AATA 225

Tial and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 225 (16 February 2022)

Division:GENERAL DIVISION

File Number(s):      2021/1708, 2021/1709, 2021/1710, 2021/1711

Re:Mang Hlei Tial  

FIRST APPLICANT

Zai Doi

SECOND APPLICANT

E Rick

THIRD APPLICANT

Bawi Vel Sang

FOURTH APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:16 February 2022

Place:Melbourne

The Tribunal, acting pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 ––

1.Sets aside the decision dated 2 March 2021 to refuse Ms Mang Hlei Tial’s application for citizenship. The Tribunal remits the matter to the Respondent with a direction that Ms Tial’s identity is satisfied in terms of section 24(3) of the Australian Citizenship Act 2007.

2.Sets aside the decision dated 2 March 2021 to refuse Mrs Zai Doi’s application for citizenship. The Tribunal remits the matter to the Respondent with a direction that Mrs Doi’s identity is satisfied in terms of section 24(3) of the Australian Citizenship Act 2007.

3.Sets aside the decision dated 2 March 2021 to refuse Mr E Rick’s application for citizenship. The Tribunal remits the matter to the Respondent with a direction that Mr E Rick’s identity is satisfied in terms of section 24(3) of the Australian Citizenship Act 2007.

4.Sets aside the decision dated 2 March 2021 to refuse Mr Bawi Vel Sang’s application for citizenship. The Tribunal remits the matter to the Respondent with a direction that Mr Sang’s identity is satisfied in terms of section 24(3) of the Australian Citizenship Act 2007.

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Senior Member D. J. Morris

Catchwords

CITIZENSHIP – applicants for citizenship by conferral – applicants are citizens of Myanmar – applicants satisfy certain requirements – delegate of minister not satisfied of applicants’ identity – delegate therefore prohibited from approval – applicants seek review by Tribunal – applications are heard together – consideration of Citizenship Procedural Instructions relating to assessment of identity – biometric evidence – oral evidence of life story of applicants – documents provided – Tribunal satisfied prohibition does not apply – decisions under review set aside and each remitted with direction

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 37

Australian Citizenship Act 2007 (Cth), ss 21, 24, 52

Cases

Beyan and Minister for Immigration and Border Protection; Re  [2015] AATA 256
Briginshaw v Briginshaw (1938) 60 CLR 336
Drake and Minister for Immigration and Ethnic Affairs (No.2), Re (1979) 2 ALD 634
Minister for Home Affairs v G and Another (2019) 266 FCR 569
Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 86

Secondary Materials

Department of Home Affairs – Citizenship Procedural Instructions – CPI 16 – Assessing Identity under the Citizenship Act (reissued 1 January 2022)

REASONS FOR DECISION

Senior Member D. J. Morris

16 February 2022

BACKGROUND

1. On 18 November 2017, Ms Mang Hlei Tial and her mother, Mrs Zai Doi, applied for Australian citizenship by conferral. On 22 November 2017, her two brothers, Mr E Rick (sometimes rendered in documents as Erick) and Mr Bawi Vel Sang also applied. All four applications were refused on 2 March 2021, by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’), who is the Respondent in this matter.  The basis of the refusals was that the delegate was not satisfied of the Applicants’ identities, pursuant to section 24(3) of the Australian Citizenship Act 2007 (‘the Act’) and was therefore prohibited from approving their applications.

2. On 23 March 2021, the four Applicants sought review of the decisions by this Tribunal. Their entitlement to do so is found in section 52 of the Act. 

3. The applications for review were heard concurrently on 8 December 2021. The hearing was conducted by video because of the public health emergency, as allowed by section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). The Applicants were represented by Mr Jack Li of Star Immigration Consultancy. Ms Tial and Mrs Doi gave oral evidence and were cross-examined by Mr Alex Booth, of Clayton Utz, representing the Minister, who is the Respondent. The Tribunal was assisted by an interpreter in the Hakha Chin language. The Tribunal notes that the other two Applicants, Mr E Rick and Mr Sang were present at the hearing but were not called to give oral evidence.

   DOCUMENTS ADMITTED

4. The Tribunal admitted into evidence the following documents:

   (a)Documents lodged under section 37 of the AAT Act (‘T-documents’) (Mrs Doi) (Exhibit R1);

   (b)Documents lodged under section 37 of the AAT Act (Mr E Rick) (Exhibit R2);

   (c)Documents lodged under section 37 of the AAT Act (Mr Sang) (Exhibit R3);

   (d)Documents lodged under section 37 of the AAT Act (Ms Tial) (Exhibit R4);

   (e)DFAT Country Information Report Myanmar, dated 18 April 2019 (Exhibit R5);

   (f)Submissions of Mrs Doi, part 1, dated 18 May 2021 (Exhibit A1);

   (g)Submissions of Mrs Doi, part 2, dated 5 July 2021 (Exhibit A2);

   (h)Mrs Doi’s pensioner card, lodged 23 March 2021 (Exhibit A3);

   (i)Submissions of Mr Rick, part 1, dated 18 May 2021 (Exhibit A4);

   (j)Submissions of Mr Rick, part 2, dated 5 July 2021 (Exhibit A5);

   (k)Submissions of Mr Sang, part 1, dated 18 May 2021 (Exhibit A6);

   (l)Submissions of Mr Sang, part 2, dated 5 July 2021 (Exhibit A7);

   (m)Submissions of Ms Tial, part 1, dated 18 May 2021 (Exhibit A8);

   (n)Submissions of Ms Tial, part 2, dated 5 July 2021 (Exhibit A9);

   (o)Health Card of Ms Tial, lodged 23 March 2021 (Exhibit A10);

   (p)Statement of the Reverend J. Vai Mawng, dated 14 July 2021 with translation (Exhibit A11);

   (q)Statement of Mang Hlei Tial, dated 5 September 2021 (Exhibit A12);

   (r)Declaration by Phu Ngu, dated 1 September 2021 (Exhibit A13);

   (s)Declaration by Run Par, dated 1 September 2021 (Exhibit A14);

   (t)Declaration by Daw Thla Can, dated 1 September 2021 (Exhibit A15);

   (u)Conversation records with Phu Ngu (Exhibit A16);

   (v)Conversation records with Run Par (Exhibit A17);

   (w)Conversation records with Thla Can (Exhibit A18);

   (x)Phone records by Mang Hlei Tial (Exhibit A19); and

   (y)Applicants’ additional evidence bundle, lodged 5 December 2021 (Exhibit A20).

5. The Tribunal also had regard to Statements of Facts, Issues and Contentions submitted by each of the four Applicants, and an equivalent document submitted by the Respondent encompassing all four applications (‘RSFIC’).

   UNDISPUTED FACTS

6. The Respondent helpfully produced a table of facts which he contended were not in dispute.  Mrs Doi was born in a town in Chin State, Burma, in 1965 (Exhibit R1, p 102). In 2007 her husband, Mr Thomas Lal Bik Kheng Lawt, lodged an application for a Refugee and Humanitarian (Subclass 200) visa (Exhibit R1, p 361).

7. In October 2007, Mr Lawt attended an interview with officers of the Department (now the Department of Home Affairs) in relation to his refugee visa application (Exhibit R1, p 340).  In January 2008, Mr Lawt was granted the visa (Exhibit R1, p 328).

8. In September 2012, Mrs Doi lodged an application for a refugee visa which included her children, three of whom are mentioned above, as dependant applicants (Exhibit R1, p 262). 

   
   

   Mrs Doi attended an interview with the Department and was subsequently notified that her application for a visa, which included her children as dependants, was approved.

9. In September 2013, Mrs Doi and her four children arrived in Australia (Exhibit R1, p 213) as holders of a refugee visa. They have resided here ever since.

10. On 18 November 2017, Mrs Doi and her daughter, Ms Tial, lodged applications for Australian citizenship by conferral (Exhibit R1, p 102).  Four days later two of her sons also lodged applications for citizenship.

11. In September 2020, the Department wrote to Mrs Doi and the other Applicants requesting further information, in particular Myanmar-issued identity documents and a completed Form 80.

12. In November 2020, the Department wrote again to Mrs Doi with an ‘Invitation to Comment on Adverse Information’ stating that the Department had concerns about the failure to provide sufficient identity documents prior to arrival in Australia and inconsistencies in identity documents raising credibility concerns and noted the failure to provide a completed Form 80.

13. In December 2020, Mrs Doi and the other applicants responded. They provided a completed Form 80 and a notarial translation of their Myanmar Government Citizenship Scrutiny Cards, a notarial translation of their birth certificates and a notarial translation of a Household Members List (Exhibit R1, p 153).

14. On 2 March 2021, a delegate of the Minister refused Mrs Doi’s application on the basis that the delegate was not satisfied of her identity pursuant to section 24(3) of the Act. The delegate also refused the applications of her daughter and three sons, three of whom have applied for review of those decisions.

    THE LEGISLATIVE AND POLICY FRAMEWORK

15. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24 of the Act provides that the Minister must approve or refuse to approve the person becoming an Australian citizen.

16. The Minister’s delegate found that each Applicant satisfied certain requirements. It was found that each was  aged 18 years or over at the time of their application (section 21(2)(a)); each was a permanent resident at the time of the application and the decision (section 21(2)(b)); each satisfied the general residence requirements in section 22 (section 21(2)(c)); each was not precluded in relation to security assessments (section 24(4); prohibition in relation to a national security offence or other qualifying offences did not apply (section 24(4A)(a) and (24(4A)(b)). The other prohibitions in sections 24(6) and 24(7) did not apply.  The delegate however was not satisfied of the Applicants’ identities.

17. Section 24(3) of the Act relates to identity:

    Identity

    (3)         The Minister must not approve the person becoming an Australian citizen                unless the Minister is satisfied of the identity of the person.

18. Division 5 of the Act sets out in detail the identity provisions.

19. In considering Mrs Doi’s application for Australian citizenship, the Minister’s delegate consulted Citizenship Procedural Instruction CPI 16 – Assessing Identity under the Citizenship Act (‘CPI 16’) issued by the Department and periodically updated. CPI 16 relates to identity. It relevantly states, under the heading ‘Purpose’:

    Establishing a person’s identity before the approval of a citizenship application requires the delegate to be satisfied of the person’s identity.  The identity provisions under the Act prohibit the approval of a citizenship application in cases where the delegate is not satisfied of the person’s identity. 

    Delegates are required to understand and apply the relevant law as set out in the Act.  Many of the requirements in the Act are expressed in objective terms and do not allow any discretion for delegates.  To the extent that the Act allows discretion, delegates must give due consideration to the Department’s approved policy and procedures where relevant and appropriate in decision-making.  Consideration of policy ensures that decision-making is consistent to the extent that it is appropriate and arbitrary outcomes are avoided. 

    However, policy and procedures do not have the force of law.  When exercising powers or making decisions under legislation, officers are to give policy documents due weight, but must not apply policy inflexibly and may consider the merits of each individual’s case.  In order to make a fair, reasonable and lawful decision, it may be appropriate to depart from the approved policy and procedures, depending on the facts of the particular case.

20. The Tribunal, unlike Department officers, is not bound to follow policy. But it has long been the practice of Tribunal Members, where a policy is promulgated which has been applied in making a decision that is under review, to have due regard for the policy unless there are cogent reasons to depart from it. Cogent reasons may include where the policy is inconstant with the law, or where rigid application would have an unfair or perverse outcome. This well-accepted general approach was enunciated by the Tribunal’s first President, Sir Gerard Brennan. What he said in Re: Drakeand Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634, relevantly set out below, has been successively endorsed by judicial opinion:

    In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:

    When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular  case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.

    The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on Ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.

21. The Full Court of the Federal Court of Australia made the status of the CPIs clear in Minister for Home Affairs v G and Another (2019) 266 FCR 569 (Murphy, Moshinsky and O’Callaghan JJ) in observing, at [54]:

    54. There is no power conferred by the Australian Citizenship Act to make the Instructions.  Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.

22. And at [58]-[62]:

    58. It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-make to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created...
    
    59. An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker ‘free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision maker] will make in the circumstances of a given case’; Drake (No 2) at 641.

    60. However, as Brennan J sated in Drake (No 2) at 641, ‘[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies’....

    62. An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations...

23. If the Tribunal makes a decision in favour of the Applicants, or any of them, then the matter would be remitted to the Department with a direction. The Tribunal is not empowered to grant citizenship, it can only decide whether a required provision in the Act is met.

24. CPI 16 refers to the ‘three pillars’ of identity. They are set out in (the current) CPI 16 at paragraph 5:

    Biometrics – a measurable characteristic that is unique to a person such as fingerprints or face.

    Documents – reliable and secure documents as defined by the Security Standards for Proof-of-Identity Documents.  A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.

    Life story – an account of the events that happened to a person during their lifetime.

25. The Tribunal notes that CPI 16 was reissued by the Department on 1 January 2022. That is, after the reviewable decision was made and after the hearing of the applications. However, this updated document is the one that should be applied because the Tribunal must make a contemporary assessment as to whether, standing in the shoes of the Minister, it is satisfied of the identity of Ms Tial, Mrs Doi, Mr E Rick and Mr Sang.

    The Respondent’s contentions

26. The Respondent contended that the Tribunal cannot be satisfied of the Applicants’ identities for the following reasons, set out here as put in the RSFIC:

    (i)The Applicants have failed to provide sufficient identity documents evidencing their claimed identity that pre-date their arrival in Australia;

    (ii)The Applicants have not explained the inconsistencies in the identity documentation that they have provided, which raises significant authenticity concerns;

    (iii)The Applicants have not provided any detailed evidence in relation to the attempts made by them to obtain further identity documents; and

    (iv)There are numerous inconsistencies and gaps in the Applicants’ life stories and the Applicants have not provided a reasonable explanation for these discrepancies.

    The Applicants’ submissions

27. Mr Li, the Applicants’ representative, submitted that the Applicants rely on the National Identity Proofing Guidelines issued by the Attorney-General’s Department in 2014, and other cases heard by the Tribunal, to establish their identity.

28. The Applicants submitted that in addition to the documents contained in the T-documents, the supporting evidence also includes the Applicants’ life stories, their statutory declarations, statements from their relatives, a statement from the local church pastor, and telephone and text messages and other related material.

    Oral evidence of Ms Tial

29. Ms Tial adopted her statutory declaration of 16 May 2021. She said she was born in Thantlang in Myanmar in 1990, at home, in common with her siblings. She did not believe her birth was recorded at the time; and she did not know whether her parents told the government they had had a child.

30. Ms Tial was asked whether it was common practice for births to be registered. She responded: “Not straight away. Maybe when a National Security Card is needed. It is very informal compared with Australia.”

31. Ms Tial said she lived her whole life in the town, attending primary school there. She lived with an aunt when she attended high school. She told the Tribunal: “We went to Mizoram in India because of the political situation. My Mum was imprisoned. The Burmese Army and the local army were clashing.”

1. Ms Tial confirmed that she went to Mizoram with her mother and brothers, and they were there in 2004 and 2005. She said they went on foot and the journey took between two and three days, crossing a river at the border. She said that she did not remember any signage that she was moving from Myanmar to India, “We just went through. No one came and checked.”

2. Ms Tial said they carried clothing, but not much more, and did not take any documents. 

   
   

   Ms Tial said that in Myanmar she had a Household Registration Card and a Citizenship Scrutiny Card, which had to be periodically changed when they expired, but she did not bring them to Australia.

3. Ms Tial said she did not go to school in India. She was not sure why the family returned to Myanmar, “maybe the situation  had settled down”. In answer to a direct question from the Tribunal, Ms Tial said she was aged around 13 or 14 at the time they returned.

4. When she returned to Myanmar, Ms Tial lived with her aunt and attended high school. It was a government high school and she said that she imagined they would have been registered at that time, because it was a requirement, but she did not know the details.

5. Ms Tial said that people have Citizenship Scrutiny Cards but do not use them from day to day, except when travelling around the country.

6. Ms Tial said she commenced high school aged 15 and graduated at the age of 18. She said she received a leaving certificate, but she said she did not retain it when they left, “I think it went in the rubbish.”

7. Ms Tial agreed that she stayed with her aunt, Run Par, when she was attending high school; and that she was still in Myanmar but had moved out of the village to another place in Chin State after the aunt’s house was burnt down.

8. Ms Tial said that the high school she attended had been closed for  approximately two years because of the political situation. Her aunt had told her that her cousins had therefore been unable to go to school.

9. Mr Li asked Ms Tial about a letter from a local pastor (Exhibit A11). She said that he was the pastor at the local Baptist church in the village. She said the family attended the church every Sunday, including Sunday school. 

10. Ms Tial said they had asked the pastor to write a letter through Facebook messenger. When asked whether the church would have some record of her and her family’s attendance, Ms Tial said: “Maybe they would have at the time. They don’t retain it. It has been a long time.  I asked if they could do something, but they have been affected by Covid and they don’t have a printer, which is why the pastor wrote by hand and then photographed his letter, and sent the photograph.”

11. Ms Tial said she had asked the pastor’s wife if they had any other proof of their attendance at the church, and she responded that this was all they could do in the current circumstances.

12. Mr Li noted that when she applied for a refugee visa, Ms Tial provided an original Myanmar passport, a translation of a police certificate, a translation of a birth certificate, a translation of a Citizenship Scrutiny Card and a translation of a Household Registration List. Ms Tial said that every time the Citizenship Scrutiny Card expires it needs to be updated by the holder going to a government office. She said there is no reason to retain the expired card.

13. When asked how she obtained the translations, Ms Tial said: “We had an agent and they arranged everything. We had to hire the agent and let them know what we needed.”

14. When asked whether she went to the government offices in Yangon, Ms Tial said that the agent arranged that. She said they supplied the agent with names and dates of birth, and she did not know what they did after that. 

15. When asked whether the agent might have original identity documents, Ms Tial responded:

    Maybe or maybe not. The original documents were given to the agent. They gave the copy back. We didn’t think we needed them back when we were going to Australia. We never were told by the Australian Embassy that we would need original documents, otherwise we would have retained them.

16. With regard to the birth certificate (Exhibit R4, p 171) which was certified in October 1990, Ms Tial said she did not know if this was the first one she ever had, only that the agent had handled things. She said the main identity document people used, day to day, was the Citizenship Scrutiny Card.

17. Ms Tial said that the agent they used was Burmese. She did not know how the agent acquired the documents. She said they asked for the name and the date of her birth, and then the agent presumably went to the relevant government offices. In answer to a direct question from the Tribunal, Ms Tial said they also asked for place of birth.

18. Ms Tial said she had asked her aunt, Run Par, if they had any information they could send. “They only have their Household Registration Card. Even when I lived with her, I was not on the card because I was not immediate family.”

19. When asked about the village where she grew up, Ms Tial said it  contained about 50 to 70 households. There was no government office and instead a local resident is assigned to do things from his house.

    Oral evidence of Mrs Doi

20. Mrs Doi adopted her statutory declaration of 16 May 2021. She told the Tribunal she was born in Thantlang in Chin State, Burma, in 1965. She was born at home. 

21. When asked whether the government recorded her birth when she was born, she responded that she had no idea; there was no such thing in the country at that time.

22. Mrs Doi said she grew up in Thantlang and went to high school there. She said she was aged around 16 or 17 when she finished high school. She said she was raised by an uncle because her parents died when she was young. Mrs Doi said she has three siblings who are alive, one sister and two brothers, all of whom still live in Myanmar. She also had two other siblings who have since died.

23. Mrs Doi says she speaks to her siblings regularly, though her brothers do not have a good internet connexion. She estimated she speaks to her sister about once a month.

24. Mrs Doi said she finished high school in 1982 and volunteered as a primary school teacher between 1983 and 1986. She said at that time there was no government primary school in the village so a private primary school operated. She applied for, and obtained, a position.  She said she was paid but not a salary, more what the Tribunal understood to be an honorarium.

25. Mrs Doi said that in 1986 she started doing a voluntary job and met her husband and married. She said her husband suggested she leave the job, and in 1993 she applied for a government primary school position, which she got.

26. Mrs Doi said they lived in public housing, which was provided by the villagers for teachers at the school.  She said they did not pay rent, nor have a formal lease. Her tax was deducted from her salary.

27. Mrs Doi said in 2003, there was a Burmese monk next to her house who was shot because the local authorities thought he was a spy. She said she was then questioned a lot and put in prison for two weeks. She said that, after being released, she did not feel safe and decided to travel across the border into India.

28. Mrs Doi said they walked for about three days to Mizoram. There was a river at the border, and they had no legal documents, and simply crossed into India. She told the Tribunal that they went to farms and did work harvesting rice and cleaning, which she said was how she raised her children.

29. Mrs Doi said they eventually decided to return to their home village because it was difficult not having their own home and there was no school for the children as they reached school age. She said they returned to the same house in the village, and she resumed teaching.

30. Mrs Doi said she enrolled the children at the school, having asked the principal for special consideration because of their absence. She said they lived in the same village until they came to Australia.

31. Mr Booth, the Respondent’s representative, asked Mrs Doi whether she had ever travelled to Yangon (formerly Rangoon).  She responded: “Only once. Just before we left the country, we had to go there”.  She said they stayed in Yangon for eight months, renting an apartment.

32. Mr Booth referred Mrs Doi to a translated Household Members List (Exhibit R1, p 248) dated 26 October 2012 recording five people in the house. Mrs Doi said they had an earlier List, but she gave it to their migration agent when they went to Yangon. She said the agent needed it to get identity documents.

33. Mr Booth referred Mrs Doi to a notarial translation of a birth certificate (Exhibit R1, p 174), which states it is a copy of the Register of Births. The translation is dated 28 December 2012. Mrs Doi said she did not think she had received a birth certificate after her birth in 1965, “At the time, people didn’t have those documents”. She said this was the first birth certificate she ever had. She told the Tribunal it was given to her by the migration agent.

34. Mr Booth asked how she met the agent. She responded:

    My daughter was dealing with the agent. The agent spoke Burmese, which I don’t speak. I went to his office, but I didn’t speak to him. We grew up in a village. We didn’t know what to do. We went to the agent to ask for help, as others before me had done.

35. When asked what documents she gave the agent, Mrs Doi responded: “I have no idea because of the language barrier; my daughter was dealing with him. We went to the agent’s office and handed to him ID documents”. Mrs Doi said she did not know if the ID documents were ever returned. When asked if she had a Citizenship Scrutiny Card in Myanmar,

    
    

    Mrs Doi confirmed she did.

36. Mrs Doi was asked  about an interview she had in January 2013. She said the interview was at the Australian Embassy in Yangon and a Haka Chin interpreter was provided. She said five members of the family went because the officer wanted to see them in person.  She could not remember whether they took ID cards to produce at the time. Mrs Doi said it was not a long interview. She said the officer asked her some questions and asked her youngest child whether she was his birth mother, to which her son replied ‘Yes’.

37. Mrs Doi was asked about her time in prison. She said it was on one occasion, and she was held for two weeks. When asked whether she was given any document explaining why she had been in custody, Mrs Doi responded: “There was no written document at all. They just asked me questions verbally, and then they released me. I was brought to Court and the Magistrate released me. They gave me a piece of paper and I went home”. When asked what happened to this piece of paper, Mrs Doi said: “I didn’t think it was necessary in the future so misplaced it or lost it; I didn’t keep it.”

38. In reference to her sons, Mrs Doi said that Mr E Rick was aged around 19 when he came to Australia; and her other son, Mr Sang, was about 17.

39. The Tribunal noted that Mrs Doi’s husband was not an applicant in the proceedings before the Tribunal and asked if he is an Australian citizen. Mrs Doi responded: “He is not an Australian citizen.  He is unable to speak because of a medical condition”. Mrs Doi also said that another son was supposed to  have applied for citizenship but did not because he did not have the money to apply.

40. Mrs Doi’s daughter, Ms Tial, then advised the Tribunal that her father was also refused citizenship, but he did not apply for that decision to be reviewed.

    Closing submission - Applicant

41. Mr Li said that CPI 16 requires an informed assessment. He said that the Applicants’ have tried their best with their life story and to show documents. He said that while the Respondent has placed weight on the inability to provide original documents, the Respondent has ignored their life story, the raising of the family, their schooling, and church membership. He said that Mrs Doi and her daughter and sons have tried their utmost to establish their identity.

    Closing submission – Respondent

42. Mr Booth said section 24(3) of the Act prohibits approval of an application for citizenship unless the decision-maker is satisfied of the person’s identity. And submitted that this means a need to be positively satisfied, citing Re: Beyan and Minister for Immigration and Border Protection [2015] AATA 256. Mr Booth submitted that the conferral of Australian citizenship is significant, and it should only be made if the decision-maker is satisfied. The Respondent submitted that there are ‘significant uncertainties and information gaps’ which should prevent the Tribunal from being satisfied.

43. In terms of the documents ‘pillar’ of identity, the Respondent submitted that there is a lack of reliable or sufficient documents. Those that have been provided seem to have come into existence shortly before the applicants came to Australia, noting they are all dated in 2012, which was around the time of the applications for visas.

44. Mr Booth said that much of the Applicants’ submissions hinge on an agent, and there is uncertainty about who this person is and what they were tasked to do.

45. The Respondent conceded that Mrs Doi and Ms Tial have made some efforts to obtain further documents. He said that there has been no search for school documents or a copy of the lease for the apartment in Yangon.

46. Mr Booth advised the Tribunal that he had conferred with Mr Li and he advised the Tribunal that the Respondent did not require either Mr E Rick or Mr Sang to give oral evidence at the hearing.

    CONSIDERATION

    Australia-source documents

47. The Applicants have provided several documents obtained since they arrived in Australia, including driver licences, utility bills and health cards. These documents are of some use, because they do show some proof of identity in Australia and support consistency. However, when they are Australia-source documents, their weight is lessened because there is no chain linking them to original documents in the applicants’ home country. By way of an example, if a person presents a driver’s licence issued by an Australian State or Territory authority, and a driver’s licence issued in their home country which they produced as part of the process to obtain an Australian licence, that shows links in a chain of provenance. However, where a driver licence is provided, as Ms Tial has, which she said was granted to her based on the information in her Australian visa, that does not illustrate a chain of provenance.

48. I also note that several screenshots of telephone conversations between the applicants (principally Ms Tial) and her relatives in Myanmar, in particular her aunt, Run Par, were in evidence. These are in the Hakha Chin language and are of limited assistance to the Tribunal but I am satisfied that they are indicative of unremarkable conversations that the applicants in Australia would have with close relatives back in their home country, in particular noting that Ms Tial lived during her higher school years with her aunt.

    Letter from Baptist pastor in Myanmar

49. The Applicants provided a document written by the Reverend J. Vai Mawng. He states that he is the pastor of the Baptist Church in Tlangrua. He further states:

    Zai Doi was a member of our Baptist Church, and she was honest and righteous person. Zai Doi’s husband is Thomas. He was not able to contact with wife regularly but very occasionally.  Because of the political crisis, he left the country in 1996.  His wife Zai Doi was a civil servant as a teacher in the Primary School in the village for years. She was well committed to her career job. Because of the corruption of political system, Zai Doi was imprisoned. As it was not safe for her to continue living in Myanmar after her release from prison, she stayed in India with her children between 2004 and 2005. They came back home in 2005. Her children worked in the crop fields.

50. Mr Vai Mawng then lists Mrs Doi’s date of birth, and the names and dates of birth of her four children: Ms Tial, Mr Van Ram Mawi, Mr Erick and Mr Sang.

51. Mr Vai Mawng then continues:

    Children of Zai Doi used to attend Sunday school classes regularly. They were honest, righteous and good persons. We relied and trusted on them. I apologise for writing this declaration by hand with a pen as I cannot go to town because of the current political unrest and of COVID-19 restrictions. I humbly ask for your understanding.

52. The translator noted that this statement was translated from the Chin Hakha language and he (the translator) had omitted the honorific title ‘Pi’ for a married woman.

53. The Tribunal asked the interpreter engaged for this hearing to read the document from the original photograph of the handwritten statement, and I am satisfied this is an accurate translation of what the Reverend J. Vai Mawng wrote on 14 July 2021.

54. The Tribunal has also considered the documents furnished by the Applicants which they say were obtained by a migration agent for them in Yangon, in connexion with their applications for refugee visas in 2012.

    Identity documents – Ms Tial

55. Ms Tial provided a passport issued by the Republic of the Union of Myanmar in November 2012 (Exhibit R4, p 119), stating her place of birth at Htantalan and her date of birth on a named date in October 1990. In answer to a direct query from the Tribunal, Mr Booth said that the Respondent was not suggesting that the passport was a bogus document.

56. Ms Tial also provided a Victoria probationary driver’s licence (Exhibit R4, p 121) and a bank statement from an Australian bank (Exhibit R4, pp 123-124).

57. In her written submission to the Department Ms Tial wrote (Exhibit R4, p 167 – as written):

    I have submitted all documents I have got from Myanmar and failed to provide the same full suite of original identicards or documents issued in my home country. The fact is that neither the agents who were responsible for processing the applications nor Australia Embassy office in Myanmar had returned any original cards or document which had been submitted to them except some of the photocopies.  Moreover, we, including my mother and siblings, were not being advised to retain all documents except travelling documents or passports in Australia or the country rather than Myanmar, and also we personally did not aware that would be a requirement or validated in Australia, otherwise it should have been retained to the present time.

    Due to the fact is that managing such process or dealing issues relating to any offices in the country is beyond our competency and knowledge at the time thus to proceeding any related documents or applications for Australia visa except original documents being surrendered and giving personal information verbally to the agents and offices.  Accordingly, any existing discrepancies and engender doubts regarding authenticity of documents are beyond our control and knowledge as the ordinary persons. Therefore, should we being required to provide documents need to be issued in Myanmar, I would like to declare that we do not have any competent or close friends and family who could take the risk and responsibility for issuing such documents in Myanmar since we have had been disconnected to the country.

58. Ms Tial provided a notarial translation of her Citizenship Scrutiny Card (Exhibit R4, p 170) dated 26 October 2012, which included her name, place, and date of birth. It was stamped by a Notary Public in Yangon on 28 December 2012.

59. Ms Tial provided a notarial translation of her birth certificate (Exhibit R4, p 171) certifying it as an original copy of an entry in the register made on a date in October 1990, which is the birthdate of Ms Tial. It records the names of her parents as Mr Lawt  and Mrs Doi, and her place of birth and that the birth was registered on 30 October 1990, which is around two weeks after she was born. The document is stamped by a Notary Public on 28 December 2012.

60. Ms Tial provided a notarial translation of a Household Members List (Exhibit R4, p 172) for her household in Tlangrua Village in the township of Htantalan. It records members of the household as Mrs Doi, Ms Tial, and her three younger brothers: Van Ram Mawi, Erick and Bawi Vel Sang. The Notary Public has stamped it and dated it 28 December 2012. The Tribunal notes that the registration number ascribed to Ms Tial of xxx908 matches the registration number recorded on the Citizenship Scrutiny Card.

    Identity documents – Mrs Doi

1. The Tribunal had before it a birth certificate of Zai Doi declaring she was born on a named date in May 1965, and that the birth was registered 20 days after her date of birth (Exhibit R1, p 174). The certificate included the names of her parents and her place of birth. It was certified to be an original copy of an entry in the register made in May 1965. The document is stamped by a Notary Public on 28 December 2012.

2. Mrs Doi provided a notarial translation of her Citizenship Scrutiny Card (Exhibit R1, p 173) dated 12 October 2012, with a note that this was a ‘true and correct English Translation’. It was signed and stamped by a Notary Public in Yangon and date-stamped 28 December 2012.

3. Mrs Doi provided a notarial translation of a Household Members List (Exhibit R1, p 175), which records her as head of her household on 26 October 2012, and lists her daughter, Ms Tial, and three sons, in descending order of age: Mr Mawi, Mr Erick and

   
   

   Mr Sang. Mrs Doi’s father’s name is recorded and is consistent with her father’s name in the birth certificate. The father of all the other members of the household is recorded as Thomas Lal Bik. The registration number ascribed to Mrs Doi of xxx031 matches the registration number recorded on the Citizenship Scrutiny Card.

4. A Union of Myanmar passport issued to Mrs Doi on 16 November 2012 was also before the Tribunal (Exhibit R1, p 235). The Tribunal notes that Mrs Doi was declared by Mr Lal Bik Kheng Lawt as his spouse, when he was interviewed by officers of the Department in October 2007, before his original visa was granted to enter Australia (Exhibit, p 252).

   Identity documents – Mr E Rick

5. The Tribunal had before it a birth certificate for Mr E Rick declaring he was born on a named date in February 1994 and that the birth was registered 17 days later in the same month (Exhibit R2, p 238).

6. A notarial translation of his Citizenship Scrutiny Card dated 26 October 2012 was provided, which records a registration number of xxx974. This number matches the registration number against Mr E Rick’s name in the Household Members List (Exhibit R2, p 242).

7. A Union of Myanmar passport issued to Mr E Rick on 16 November 2012 was also before the Tribunal (Exhibit R2, p 231).

   Identity documents – Mr Sang

8. The Tribunal had before it a birth certificate for Mr Sang declaring he was born on a named date in April 1996 and that the birth was registered 19 days later in the same month (Exhibit R3, p 159). The birth certificate was a certified extract from records, stamped by a Notary Public on 28 December 2012.

9. A copy of Mr Sang’s probationary driver’s licence from Victoria with an expiry date of 5 May 2020, certified by a Senior Constable of Victoria Police, was also before the Tribunal (Exhibit R3, p 142). Mr Sang also provided a utility bill dated September 2017 showing his name and an address in a Melbourne suburb. As these are Australia-source documents the weight that attaches to them is qualified, as mentioned earlier in these reasons.

10. A Citizenship Scrutiny Card issued on 26 October 2012 in the name of Mr Sang (Exhibit R3, p 144), which was also before the Tribunal, had a registration number recorded as xxx981.  This number matches the number recorded against his name on a Household Members List (Exhibit R3, p 197).

11. A Union of Myanmar passport issued to Mr Sang on 16 November 2012 was also before the Tribunal (Exhibit R3, p 155). An Australian Government ‘Document for travel to Australia’ in the name of Mr Sang, recording his date and place of birth, valid for single travel to Australia, and stamped by the Australian Embassy in Bangkok was before the Tribunal (Exhibit R3, p 145).

    Identity documents – All four Applicants

12. In the papers before the Tribunal were original certificates from the Thantalan Police Station of the Myanmar Police Force for Mrs Doi, Ms Tial, Mr E Rick and Mr Sang (and Mr Mawi), declaring they were free of criminal offences and authorising them to travel to Yangon.  Notarised translations of each police certificate were also provided (Exhibit R1, pp 218-231). These translations were certified by a Notary Public on 6 February 2013. Mrs Doi’s certificate names her father and the number of her Citizenship Scrutiny Card, which matches other documents. The police certificates for her children name Mr Thomas Lal Bik Kheng Lawt as their father, and their respective Citizenship Scrutiny Card numbers match the other documents submitted.

    Decision-maker must be satisfied of identity

13. As mentioned above, section 24(3) of the Act says that the Minister must not approve an application for citizenship unless the Minister is satisfied of the person’s identity. It is, in effect, a prohibition on the Minister exercising his powers under the Act to confer citizenship, unless he can be satisfied regarding this requirement.

14. The Courts and this Tribunal have frequently considered what is meant by the statutory phrase that a person is “satisfied” of a requirement.  Briginshaw v Briginshaw (‘Briginshaw’) (1938) 60 CLR 336 is the leading authority; and that it is still good law has been frequently re-stated by that Court (notably in Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 86, by Toohey J for the Court, at [2]). In Briginshaw, Dixon J said:

    The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

15. The Tribunal therefore must be persuaded to a degree of reasonable satisfaction that something put to it is, in fact, the case. The degree of satisfaction may vary according to the consequences that flow from accepting the proposition that is proffered.

    Assessing the evidence against the ‘four pillars’ of identity

16. In terms of the ‘biometrics’ pillar, the Tribunal is satisfied that the several photographs provided by the Applicants, taking account of the age when the photographs were taken, show no inconsistencies.

17. In terms of the ‘documents’ pillar, the Tribunal is satisfied that all the documents that the applicants have provided relay a consistent record of identity. The Tribunal takes account of the Respondent’s submission that there is a paucity of original documents, in the sense of documents created at a point in time. Original documents in this sense are the original police certificates and the passports. However, the evidence of Mrs Doi and Ms Tial about the family all going to Yangon and staying in a rented apartment for eight months while the agent they engaged set about obtaining identity documents and notarised copies has raised no ‘red flags’ in my mind. The fact that each of the births were registered at slightly different times in relation to the stated date of birth of the person inclines me to the view that this data refers to extracts of authentic entries in the Myanmar Register of Births. I do not conclude that these birth certificates are some forms of elaborate fabrication, and I note the Respondent is not suggesting that.

18. In respect of the ‘life story’ pillar, the most compelling document in the Tribunal’s consideration is the handwritten statement from their former Baptist pastor (Exhibit A11). I found Ms Tial’s evidence about how she went about obtaining it entirely believable, and I was reassured that the translation provided matched the text as read out at my direction by the Hakha Chin language interpreter engaged by the Tribunal for the hearing. The Reverend J. Vai Mawng is a person who knew all the family when they regularly worshipped at his church and when the children attended Sunday school. There is no reason for him to say anything that does not accord with his own memory of the Applicants growing up in his local area, and his interactions with them. I find that this statement carries significant weight supportive of the identities of each of the Applicants.

19. The authenticity of the life story of the Applicants is also bolstered by the evidence

    
    

    Mr Thomas Lal Bik Kheng Lawt first gave in his interview with the Department in 2007 about his wife, his daughter and their three sons. I also notice extensive medical evidence from Modbury Hospital in South Australia about a stroke Mr Lawt suffered some years ago, which regrettably led to loss of speech and the need for speech pathology. This accords with Mrs Doi’s oral evidence to the Tribunal. The several documents provided under section 37 of the AAT Act relating to Mr Lawt, and which refer to his family members, show no inconsistency with the evidence that each has put forward to the Department and in submissions to the Tribunal made on their behalf.

    CONCLUSION

20. The Parliament has decided that being reasonably satisfied of the identity of a prospective candidate for Australian citizenship is essential. This is because, once citizenship is conferred, the citizen becomes entitled to many rights, privileges, and responsibilities, such as enrolling to vote, serving on a jury, being employed as a permanent officer of the public service, and being issued an Australian passport. If travelling on such a passport, the citizen may call in aid consular assistance if necessary, and also has the protections in international law available to a sovereign state’s citizens.

21. Both legal representatives submitted previous Tribunal decisions in relation to identity. I respectfully make the observation that these are useful to the extent that they show how another Member of the Tribunal might approach a matter, but there is no doctrine of stare decisis in the Tribunal. When considering a question of whether the Tribunal can be reasonably satisfied of a person’s identity, the material before the Member and the evidence of the person are crucial. How the Tribunal, in another case with different evidence before it, may or may not have been reasonably satisfied of another person’s identity is of little value. As Tribunal Members often remark, in an administrative review, each case turns on its own facts.

22. CPI 16 refers decision-makers to various considerations to take into account when assessing a person’s identity. They include, at part 6, changes to identity information (such as changes to name, date of birth or gender). The chain of documents relating to the four applicants show no changes of name, date of birth, or gender. They are all consistent, one with the other. Part 7.5 of CPI 16 draws the attention to cases where a name used now may differ from the name on the birth certificate. This is not relevant to the Applicants; the names they use in Australia are consistent with the Myanmar-source documents.

23. Part 11.3 of CPI 16 draws attention to the plausibility of a person’s life story. I have considered the oral evidence of Mrs Doi and Ms Tial and find their evidence plausible. In addition, where they were separately answering questions about the same life events, such as the family decamping to India, and then returning, consistent. The importance of family composition is also highlighted in this part of CPI 16. All the evidence points to a family unit of a mother, father, daughter and three sons (one of whom is not an applicant in these proceedings but some of whose documents intermesh).

24. I note that before he was granted a protection visa, in 2007 when being interviewed by officers of the Department, Mr Lawt, described the family composition – his  wife and his four children, consistently with the other more recent evidence given by each of the applicants. That carries strong weight because it reflects a consistency over some 15 years.

25. CPI 16 refers to the need for a decision-maker to feel an ‘actual sense of persuasion’, and in this the Department document is directly quoting from Briginshaw. On a holistic view of the evidence, I am satisfied of the identities of each of the four applicants, and that level of satisfaction is such that I find that the prohibition in section 24(3) of the Act does not apply.  In particular, I note that there is no suggestion from the Respondent that any of the documents produced by the Applicants is bogus. I place particularly significant weight on the properly issued Union of Myanmar passports each used for his or her travel to Australia.  These passports were obviously based on the Myanmar Government being satisfied of the identities of each of the four Applicants.  In a case where the Respondent is not suggesting that there was any irregularity in the issue of the passports for each of the Applicants, and where it was not contended they are other than genuine travel documents, they carry the same weight as equivalent documents in Australia do, in terms of supporting the identity of the holder.

26. The consequence of the Tribunal’s decision is that the four applications for citizenship will be returned to the Department for completion of any (if there are any) outstanding requirements of the Act, with a direction that the identities of Ms Tial, Mrs Doi, Mr E Rick and Mr Sang meet the requirements in section 24(3) of the Act.

    DECISION

27. Pursuant to section 43(1)(c) of the AAT Act, each of the refusal decisions of 2 March 2021 is set aside, with directions that the identities of the four Applicants are each satisfied in terms of section 24(3) of the Act.

I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

.........................[sgd]...............................................

Associate

Dated: 16 February 2022

Date of hearing:	8 December 2021
Advocate for the Applicant:	Mr Jack Li
Solicitors for the Applicant:	Star Immigration Consultancy
Advocate for the Respondent:	Mr Alex Booth
Solicitors for the Respondent:	Clayton Utz