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

Tlang Lian and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 165 (9 February 2021)
Division:GENERAL DIVISION
File Number: 2019/7724
Re:Bawi Hlei Sung Tlang Lian
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:9 February 2021
Place:Melbourne

The Tribunal affirms the decision under review.
...........................[SGD].............................................
Senior Member D. J. Morris
CATCHWORDS
CITIZENSHIP – refugee from Myanmar – identity of applicant – desirability of consistency in application of policy – unsatisfactory explanation for inconsistencies in life story – inconsistent evidence given to Department and in oral evidence – importance of statutory declarations – lack of documents with origins before applicant settled in Australia – reasonable satisfaction of identity not reached – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 37, 38AA
Australian Citizenship Act 2007 (Cth), ss 21, 24, 45A
Statutory Declarations Act 1959 (Cth), s 11
CASES
Briginshaw v Briginshaw [1938] HCA 34
Drake and Minister for Immigration and Ethnic Affairs (No. 2), Re [1979] AATA 179; (1979) 2 ALD 634
Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 86
SECONDARY MATERIALS
Australian Citizenship Policy Statement, issued 27 November 2020
National Identity Proofing Guidelines, Department of Home Affairs (2016)
REASONS FOR DECISION
Senior Member D. J. Morris
9 February 2021
Background

Mrs Bawi Hlei Sung Tlang Lian is a 36-year-old citizen of the Republic of the Union of Myanmar (Burma). She first arrived in Australia in December 2008 as a dependant on her husband’s Refugee and Humanitarian (Subclass 200) visa. On 31 August 2015 Mrs Tlang Lian applied for Australian citizenship. On 31 October 2019 a delegate of the Respondent found, in respect of relevant provisions of the Australian Citizenship Act 2007 (the Act), that the Applicant satisfied section 21(2)(a) of the Act in that she was aged over 18 when she applied. Additionally the delegate found that Mrs Tlang Lian satisfied section 21(2)(b), of being a permanent resident; section (21)(2)(c), the general residence requirement; section (21)(2A), that she had sat and successfully completed the prescribed citizenship test; and section (21)(2)(g), that she was likely to continue to reside in Australia. Where the delegate found that the application halted was in the delegate being satisfied of the Applicant’s identity. This led to the application failing under section 24(3) of the Act: The Minister is prohibited from approving a person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. Because of this, the delegate did not go on to complete the assessment of other requirements under the Act for applicants for Australian citizenship by conferral.
Because of this, if the Tribunal decides, having a fresh assessment of the information before the decision-maker and any other information that has since come to light, that Mrs Tlang Lian has provided satisfactory evidence of her identity, the correct course would be to remit the matter to the Respondent with a direction that section 24(3) of the Act is satisfied. Then the Respondent could finalise the other matters remaining to be assessed.
A hearing was held on 6 October 2020 by telephone under section 33A of the AdministrativeAppeals Tribunal Act 1975 (the AAT Act), owing to the current public health emergency. The Applicant was self-represented. Mr Christopher Orchard of Sparke Helmore Lawyers appeared on behalf of the Respondent. Mrs Tlang Lian gave evidence and was cross-examined. The Applicant’s mother, HC, also gave evidence. The Tribunal was assisted by an interpreter in the Hakha Chin language.
The Tribunal took into evidence the following documents submitted by the parties:
·Applicant’s Submissions dated 19 November 2019 (Exhibit A1);
·Letter from the Reverend Peng Thawng, Pastor, Chin Christian Church Melbourne, received on 22 November 2019 (Exhibit A2);
·Department of Immigration and Border Protection notification that the person has passed the citizenship test, undated, received 22 November 2019 (Exhibit A3);
·Letter to Department of Home Affairs from the Applicant’s mother, received 22 November 2019 (Exhibit A4);
·Statutory declaration of the Applicant, declared on 28 November 2018 (Exhibit A5);
·Letter from Simon Sang Hre, Secretary, Australian Chin Community (East Melbourne) Inc., dated 20 November 2019 (Exhibit A6);
·Letter from the Applicant to the Department of Home Affairs, undated, received 22 November 2019 (Exhibit A7);
·Letter from HC, the Applicant’s mother, dated 5 March 2020 (Exhibit A8);
·Letter from Simon Sang Hre, dated 5 March 2020 (Exhibit A9);
·Letter from Applicant dated 5 March 2020 (Exhibit 10);
·Volume of ‘T’ documents lodged under section 37 of the AAT Act on 20 December 2019 (Exhibit R1);
·Volume of Supplementary ‘T’ documents lodged under section 38AA of the AAT Act on 19 May 2020 (Exhibit R2).
The Tribunal also had regard to a Statement of Facts, Issues and Contentions dated 17 July 2020 and lodged by the Respondent that day.
Migration and related background
As mentioned above, Mrs Tlang Lian arrived in Australia in December 2008 with her husband. She told the Tribunal she had arrived in Malaysia from Burma in June 2006, aged 23. Mrs Tlang Lian has not departed Australia since December 2008 (T, p 11).
In September 2015 she lodged an application for Australian citizenship. The Department wrote letters to Mrs Tlang Lian on 18 December 2017 and 30 October 2018 asking that she provide identity documentation issued to her in Myanmar prior to her arrival in Australia. The Applicant responded to these letters, respectively, on 28 December 2017 and 3 December 2018, including providing statutory declarations. Mrs Tlang Lian did not provide any identity documents issued to her in Myanmar (T, p 12).
On 11 July 2019 an officer of the Department of Home Affairs (the Department) wrote to the Applicant and asked her to comment on adverse information available to them. On 15 August 2019 Mrs Tlang Lian responded and provided a statement, and a statement from her mother, HC, together with documents issued by Australian government agencies and entities.
The delegate, in setting out reasons for refusing Mrs Tlang Lian’s application for citizenship, stated that in her original visa application of September 2008 the Applicant stated that her mother’s name was HC and her mother’s year of birth was 1963. She also said that her father’s name was Len Kio and he was born at the beginning of 1958. Mrs Tlang Lian wrote that both her parents were living in Myanmar and were citizens of that country.
In April 2014 HC lodged an application for a subclass 202 visa, with Mrs Tlang Lian as her proposer. In that HC sets out a longer form of her name and her date of birth is recorded as 20 July 1957. HC records her husband’s name as ‘Lian Kio’ and states he has been deceased for ‘over 20 years’. This visa application was refused in March 2015.
In April 2015, HC lodged a second application for a subclass 202 visa, with Mrs Tlang Lian as her proposer. In this application HC’s date of birth is recorded as 20 July 1952 and HC provided an identity card issued in Chin State, Myanmar on 7 February 2015, that is a date earlier than the previous application HC had made for a subclass 202 visa. This identity card also recorded HC’s name and her date of birth as 20 July 1952. HC recorded that she was in a relationship with Lian Kio from March 1982 to December 1983 which ended in divorce. In her visa interview, HC said her husband died 20 years ago.
The delegate noted that when HC herself was granted a visa, HC wrote that she was born on 20 July 1952 and HC provided an identity card apparently issued by the Chin Refugee Committee in 2015 which confirmed both HC’s name and this date of birth.
Because of different names used for the Applicant’s mother, the supply of three different dates of birth for HC and inconsistent information about the whereabouts of Mrs Tlang Lian’s father and whether he was still alive, the delegate was not satisfied of the Applicant’s identity. In addition, there was inconsistent information about whether HC had applied for a visa before her 2015 application, when she had also applied for a visa the year before.
Finally, there was inconsistent information about whether Mrs Tlang Lian had identity documents in her possession when she left Myanmar to travel to Malaysia, as she did not provide any of those documents to the Department when she and her husband applied for a visa to come to Australia, or since when information requests have been made by the Department.
Legislative Framework
Section 21(1) of the Act sets out 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.
Section 24(3) of the Act concerns 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.
Division 5 of the Act sets out in detail the identity provisions.
When considering Mrs Tlang Lian’s application for Australian citizenship, the Minister’s delegate also consulted a document produced by the Department titled Citizenship Policy, DIBP (the Policy) and dated 1 June 2016. Chapter 13 of the Policy provides guidance to departmental officers in relation to the provisions of Division 5 of the Act:
The identity provisions prohibit the approval of a citizenship application in cases where the decision maker (the Minister or their delegate) is not satisfied of the person’s identity.
In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.
The Policy goes on to state that the concept of identity is as described in what was then the Attorney-General’s Department’s National Identity Proofing Guidelines of 2004 and provides a website link to those Guidelines. The successor of that document is the National Identity Proofing Guidelines, published by the Department of Home Affairs in 2016 (the Guidelines).
The policy provides guidance to decision-makers (principally officers of the Department who hold the Minister’s delegation) in how they should arrive at a state of satisfaction about the identity of a person applying for Australian citizenship. Whilst the policy is not binding on the Tribunal, standing in the shoes of an original decision-maker, the approach taken by Brennan J (as His Honour then was, writing as President of this Tribunal) in Re: Drakeand Minister for Immigration and Ethnic Affairs (No.2) [1979] AATA 179; (1979) 2 ALD 634, relevantly set out below, has been subsequently approved of by the Courts:
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.
Consequently, the Tribunal is guided by the Policy in considering whether it can be satisfied of the identity of the Applicant in terms of her application for Australian citizenship.
On 23 December 2020 the Respondent wrote to the Tribunal and advised that the Australian Citizenship Policy had been revoked on 27 November 2020 and replaced with a new document, the Australian Citizenship Policy Statement, effective from that date. The Respondent provided a copy of that document. The Tribunal should apply the new document in considering this matter. The Respondent advised that the Australian Citizenship Instructions and the National Identity Proofing Guidelines remain in force.
The Applicant’s submissions and contentions
Mrs Tlang Lian provided a written submission to the Tribunal dated 19 November 2019. She said that it was her belief that the reason her citizenship application was refused was because of discrepancies in her mother’s visa application and ‘the low level of my English skill’.
In regard to her father, Mrs Tlang Lian said that it was true that her father was alive and residing in Myanmar at the time when she resettled in Australia in 2008, and it was also true that her father had died by the time HC was granted her subclass 202 visa in 2017. Mrs Tlang Lian went on:
However, I was not aware of what my mother mentioned about the death of my father during her interview in the Office of the [Australian] High Commissioner in Kuala Lumpur in 2016. It would be of the genuine mistake made by my mother if it is recorded that my father was dead 20 years ago. This mistake could potentially be added by the interpretation as my interpreters in Malaysia for refugees are not properly trained.
In regard to the statement “Since I fled the country [that is, Myanmar] I left everything including my previous identity documents with me to Malaysia”, Mrs Tlang Lian said there had been a genuine grammatical mistake and what she meant was she left her previous identity documents in Myanmar, not Malaysia, which is why she did not have any more identity documents to provide to the Department of Home Affairs. Mrs Tlang Lian said that her mistake was not to use an accredited translator but instead someone who she thought knew English well enough to write down what she said in English.
Mrs Tlang Lian said that she had attempted to reach her father-in-law to assist her to get identity documents and was advised that it is not possible to get an identity card without being present in Chin State in order to get national household registration. She said the reason she had lost her previous national identity card was that she was ‘running on the way to Malaysia in fear of my life’.
Mrs Tlang Lian said she had consulted with her Chin community leader who confirmed that any person from Myanmar who was attempting to get a national identity card must be present physically for biometric reasons, otherwise it is not possible to get national household registration.
Mrs Tlang Lian stated that she is a Chin ethnic national from Myanmar which “can be further reviewed through the office of the United Nations High Commissioner for Refugees” (UNHCR) and is an active member of the Australian Chin Community (Eastern Melbourne) Inc. She goes on to say:
I believe I have sufficient evidence of my identity being ethnic Chin from Myanmar based on where I belong to community in Australia which is Australia Chin Community (Eastern Melbourne) Inc., and my Church which is Chin Christian Church Melbourne as this clearly indicates that I am absolute ethnic Chin national from Myanmar.
The Respondent’s contentions
The Respondent referred to the Guidelines and referred to five identity proofing objectives which are, it was submitted, to confirm:
a)    The uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another;
b)    The claimed identity is legitimate to ensure the identity has not been fraudulently created through evidence of commencement of identity in Australia;
c)    The operation of the identity in the community over time to provide additional confidence that an identity is legitimate in that it is being used in the community;
d)    The linkage between the identity and the person claiming the identity to provide confidence that the identity confirmed (through the preceding three objectives) is not only legitimate, but that the person claiming the identity is its legitimate holder; and
e)    The identity is not known to be used fraudulently, to provide additional confidence that a fraudulent (either fictitious or stolen) identity is not being used.
The Respondent also noted that the Citizenship Procedural Instructions provide that:
It is not sufficient to be satisfied of a person’s identity as one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically.
The Respondent submitted that Mrs Tlang Lian has not provided any document relating to her identity that was issued in Myanmar. It was accepted that the Applicant had provided some Australian identity documents but submitted that they are not ‘feeder’ documents, for example an Australian driver licence issued to a person who has provided their birth certificate as part of the application process for that driver licence. The Respondent submitted that in circumstances where there is no ‘feeder’ document to historically contextualise the Applicant’s identity in Australia, the submitted Australian documents should be given minimal weight.
The Respondent submitted that Mrs Tlang Lian had provided inconsistent evidence regarding her Burmese documentation. She said that she previously held national household registration and a national identity card in Myanmar (T, p 45) but later in her application for citizenship in December 2017 (T, p 59) and November 2018 (T, p 22) denied ever having any national identity documentation. Mrs Tlang Lian, in a statutory declaration declared on 28 November 2018, then said she had held national identity documentation up until her journey to Malaysia. The Respondent also submitted that Mrs Tlang Lian’s claim (T, p 45) was ‘confiscated’ by the UNHCR is implausible, in circumstances where she could ask the UNHCR for her records.
The Respondent submitted that Mrs Tlang Lian stated (T, p 45) that she has no family in Chin State who could assist her to obtain documents, but that HC was not granted an Australian visa until January 2017 and it would be reasonable for the Applicant to ask her mother to assist her, whether HC was residing in Myanmar or Malaysia, in the acquisition of identity documents. The Respondent noted that Mrs Tlang Lian’s husband’s family still live in Myanmar and while she did attempt to contact them for the purpose of obtaining documentation, this happened only after direct requests from the Department.
Evidence of the Applicant
The Applicant said she arrived in Malaysia from Myanmar in June 2006 aged 23 and then arrived in Australia in 2008. She said she has tried to contact friends in Chin State but could not reach them. She said she did make contact with her mother-in-law who lives in Hakha, the capital of Chin State, and her mother-in-law said that identity documents cannot be obtained unless the person is physically present.

Mrs Tlang Lian said that her mother had had told her it is ‘extremely complicated’ to get household registration and that was necessary before a national identity card can be issued.
In answer to direct questions from the Tribunal, Mrs Tlang Lian said she had asked help from people who could write in English but she could not read back what they had written because she could only ‘read a little English I was taught at school’. When asked how she successfully completed the citizenship test, Mrs Tlang Lian said she had learned it by heart.
Under cross-examination, Mrs Tlang Lian accepted that she had provided two names for her mother and three different dates of birth for her mother. The Applicant was asked about the unsuccessful application for HC’s visa in 2015 and agreed that she was the sponsor. She was asked why both she and HC said in the subsequent visa application that there had not been a previous application. Mrs Tlang Lian said ‘we asked someone to fill out the form, and the second time we asked them to fill out a different form’ and they filled it out wrongly.
Mrs Tlang Lian agreed that her father was alive when she made her own visa application to come to Australia. She said she did not know her father’s date of birth ‘because I’ve never seen him or been around him’. Mrs Tlang Lian was asked why her husband, in his visa application, said that her ‘parents’ had paid a people smuggler, but the Applicant said that they were in poverty and had borrowed money from other people in the village to pay the people smuggler and that her father had no involvement, having left when she was born.
Mrs Tlang Lian was asked why her mother had said in her visa application that her husband had been dead for 20 years. She said that was a mistake by the person filling in the form for her mother. The Tribunal then directly questioned the Applicant about how she knew that her father had since died, and she said she had learned that from people in her village who now live in Canada and the USA through social media, Facebook, who said that her father had been ‘killed by other people’.
Mrs Tlang Lian said she learned about her father’s death some years after she had arrived in Australia and estimated it was perhaps around 2011. She said that when her mother was recorded in November 2016 to have said Mrs Tlang Lian’s father had died over 20 years ago, that is around 1996, she speculated that her mother may have said that he ‘left us’ which the interpreter had rendered as ‘died’.
Mrs Tlang Lian confirmed that she attended school in Myanmar until grade 10 but did not graduate from high school, she said the family moved around and she attended whichever school was convenient.
Mrs Tlang Lian was asked about a statement she made on 5 March 2020 in which she stated she “never realized I had household registration” and said that she meant she never had it. She was then asked directly by the Tribunal about whether she had ever had a national identity card and she responded: “Because we moved around, we couldn’t have a household registration card. I had an ID card, but I lost it in Malaysia.”
Mrs Tlang Lian was then asked about her statutory declaration of 28 November 2018 (T, p 45) in which she told the Department:
It was impossible for me to bring the household registration when I fled out of the country. On my way to Malaysia the agent took my national identity card. When I was born there was no birth certificate issued and I never sat it in my life. When arrived in Malaysia I was illegal and had no identity documents. Therefore I immediately took the international protection from UNHCR under family reunion with my husband. My UNHCR card had been confiscated by UNHCR staff on the day we were gathered at the compound for departure to Australia. That is why I have no other documents except for my refugee visa and it is completely true of my identical records provided to you by UNHCR. As I have no other family members in Chin State, Myanmar, it is for me impossible to contact somebody for getting these documents. Attempt to reach some of my friends were made but not able to reach them for this purpose.
Mrs Tlang Lian told the Tribunal that the interpreter made an error – “we did not have an ID card” and said the statutory declaration was wrong.
Mrs Tlang Lian said she was born in Chuncung Village but then ‘we moved to another place and then we moved again’. She confirmed that she always lived with her mother, HC, when they were in Myanmar. Mrs Tlang Lian was referred to a record of interview with HC where she was asked where she lived in Myanmar. The following exchange was recorded (ST, p 119):
Where did you live in Myanmar?
Chun Cung village. Where is that? Hakka [sic] township, nearby Hakka. How far from Hakka? Around 15 miles. Did you ever live anywhere else in Myanmar? No.
Mrs Tlang Lian told the Tribunal that ‘we moved to different villages after I was born.’
Evidence of HC
The Applicant’s mother, HC, gave evidence by telephone. She said her date of birth was 20 July 1952. She said she did not know the exact year her ex-husband passed away, but it was ‘six or seven years ago, could be more than seven years’.
HC said that in Myanmar she lived in Chuncung Village near Hakha with her daughter and then named three other villages where they had lived at one time or another. HC said she had never held national household registration because they did not have their own house. She could not recall whether she ever had a national identity card because she could not read Burmese script. When asked directly by the Tribunal whether she remembered having some card issued by the Burmese Government, HC said ‘Yes, I do.’
CONSIDERATION
Section 24(3) of the Act means 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.
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 [1938] HCA 34 is the leading authority, and it has been frequently and contemporarily 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 (as he then was) 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.
The Tribunal therefore must be actually 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.
The Parliament of Australia has decided that being reasonably satisfied of the identity of a prospective candidate for Australian citizenship is essential because, once citizenship is conferred, the citizen becomes entitled to a range of significant rights and privileges and has certain responsibilities, for example to enrol to vote.
An Australian citizen is also entitled to apply for an Australian passport and travel abroad and may avail him or herself of consular assistance when necessary and the protections under international law of a citizen of this country.
There are certain discrepancies in information that the Applicant has provided to the Department. The inconsistencies in the name of her mother and her father may be explicable. The errors in stating her mother’s date of birth are more serious but may be explainable in the context of someone else assisting in the filling in of forms, however a shadow falls across that contention because the Applicant told an officer of the Department when she initially put down the wrong date of birth for HC, it was because she had not been able to contact her to check it.
The Tribunal accepts that it is possible that a translator may have put down ‘Malaysia’ instead of ‘Myanmar’ in writing out in English what Mrs Tlang Lian was saying about where she lost her identity documents.
What, however, is not able to be reconciled are the differing stories the Applicant has given to the Department, at different times, and then in her oral evidence to the Tribunal, about whether she ever had Burmese Government identity cards. In her statutory declaration of November 2018, Mrs Tlang Lian declared that “on my way to Malaysia, the agent took my national identity card”. While the Tribunal could accept that the reference later to the identity documents being left in ‘Malaysia’ may have been a slip error of the translator who meant to write ‘Myanmar’, I do not find it plausible that a translator, or a person able to write English who was assisting the Applicant, would have written that the agent – presumably referring to the people smuggling agent – took Mrs Tlang Lian’s national identity card, if the Applicant herself had not dictated that.
The Applicant admitted to the Tribunal in the hearing that the November 2018 statutory declaration was wrong. This is a serious thing. When a person makes a statutory declaration they are doing so under an Act of Parliament, in this case the Statutory Declarations Act 1959, and it is clear from the printed text on the statutory declaration that making a false declaration is an offence under section 11 of that Act. It carries a penalty of four years’ imprisonment. It is not good enough for a person to submit such a document and then retreat from the factuality of its contents. While language can be a barrier, the solution is for the person to have someone read back the contents of a statutory declaration in their own language to ensure it is truthful, before they sign the declaration.
HC in her evidence told the Tribunal that she never had household registration, because ‘we didn’t have our own house’. This is inconsistent with her two separate statements to the Department in connexion with her refugee claim that she was the owner of her house in Chuncung Village (ST, p 55 and p 92).
I do not accept that officers of the UNHCR would have ‘confiscated’ Mrs Tlang Lian’s UNHCR card (which would have provided another document of identity not produced in Australia and potentially bolster her claim). For what purpose would it be confiscated? In any event, given that she knows the dates on which she was in the care of the UNHCR, it would not seem to be too difficult for the Applicant to request a document from the UNHCR office in Australia which could, drawing on their own records, record when she was in the refugee camp in Malaysia.
Mrs Tlang Lian made no efforts to attempt to obtain identity documents from Myanmar before she applied for citizenship, and only made some attempts on being requested so to do by the Department. She said that she had no family in Myanmar who could assist, and then subsequently agreed that her mother-in-law resides in Hakha and that she could be in contact with her (and has been). While it may not be possible to get a new national identity card without being physically present, it does not mean that the Burmese Government might not confirm that there had been a national identity card issued in the Applicant’s name and with her date and place of birth in the past. It would also seem that Mrs Tlang Lian has not endeavoured to obtain other documents that could support her life story, for instance a document from a school that she had been enrolled there, or statements from others in Chuncung Village (whether still living in Myanmar or those living in North America with whom she says she is in contact through social media) who could attest to the fact that they knew her when she lived in Chin State.
The Applicant makes a case that she is paying tax and has not committed any offences since she has settled in Australia. The Tribunal accepts those assertions. The Tribunal also places proper weight on the statement of the Reverend Peng Thawng, who is the pastor of the Chin Christian Church that Mrs Tlang Lian attends, that she is a known and well-regarded member of his congregation. Equally, the Tribunal accepts that the Applicant is a member of the Chin Community in Melbourne, as stated by Mr Simon Sang Hre.
The Tribunal is satisfied that Mrs Tlang Lian is Burmese and accepts that she came from Chin State and is a Chin Christian. The Tribunal has no reason to doubt that the circumstances of her, and HC, leaving Myanmar may have been traumatic and deeply affecting. The Tribunal also accepts that Mrs Tlang Lian has built a life in Australia that is productive and contributory to our society. What is missing in the puzzle is sufficient information to be satisfied of Mrs Tlang Lian’s identity. Where a person has come from an unsettled society such as the part of Myanmar where Chin State is located, and where they may have fled to another country and their refugee claims independently assessed and accepted by the relevant United Nations agency and the Australian Government, some allowances may be made to take account of such circumstances. But Mrs Tlang Lian’s stated life story is not so much incomplete as inconsistent. She denied having an identity card, and then changed that to say it had been confiscated by her agent. She then changed the narrative again and said she had left it in Myanmar when she left that country. Mrs Tlang Lian denied having national household registration, but then said in her evidence that was a precursor to having a national identity card, which she admitted she did have at one time.
The Tribunal is not making a finding that Mrs Tlang Lian is an imposter, that is a person who pretends to be someone else for some purpose of gain or other motive. But she has not provided any documentary evidence produced prior to her coming to Australia which corroborates her name and date and place of birth. In several of her submissions, Mrs Tlang Lian has suggested that the Department should make its own inquiries about her identity. She suggests that Department officers should contact the UNHCR. In another submission she provides the telephone number for her mother-in-law in Myanmar, suggesting she be contacted. I must make it very clear that the obligation is on the Applicant to provide all the information she can gather supporting her identity claims when she applies for Australian citizenship. It is not the role of the Department to undertake detective work at the request of an applicant for citizenship when identity is unclear, and country of origin documentation has not been provided by them.
Regrettably, the inconsistencies in the information Mrs Tlang Lian has given to the Department, and then attempted to mitigate in her written submissions and oral evidence to the Tribunal, are too many for the Tribunal to be satisfied, to a degree of reasonable satisfaction, of the Applicant’s identity at this time, in terms of her application for Australian citizenship.
To remedy this, Mrs Tlang Lian needs to gather some documents that corroborate her life story, preferably from Myanmar – if not from the Government then from recognised institutions such as the several schools she said she attended. She could also obtain statements from people who knew her in Myanmar before she departed. In addition, Mrs Tlang Lian could request from the UNHCR details of what information they recorded and accepted about her identity, when she entered the camp in Malaysia. All these pieces of information would help a decision-maker in a future application for Australian citizenship. However, as they are currently absent, the Tribunal finds that it cannot be satisfied of the identity of the Applicant on the material she has provided in her application for Australian citizenship and her other evidence and testimony to the Tribunal. The consequence is, by force of section 24(3) of the Act, the Minister is prohibited from granting citizenship and so the decision of the delegate to refuse citizenship must be affirmed.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

........................[SGD]................................................
Associate
Dated: 9 February 2021

Date of hearing: 6 October 2020

Applicant: By telephone

Advocate for the Respondent:

Solicitors for the Respondent

Mr Christopher Orchard

Sparke Helmore Lawyers

[2021] AATA 165

9 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Standing

Jurisdiction