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

[2022] AATA 1929

VCDK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1929 (24 June 2022)

Division:GENERAL DIVISION

File Number(s):      2020/6502

Re:VCDK  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:24 June 2022

Place:Sydney

I find that the correct or preferable decision is to affirm the reviewable decision dated 13 October 2020.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

MIGRATION – citizenship by conferral – application refused under s 24(3) of the Australian Citizenship Act – not satisfied of the Applicant’s identity – whether the Tribunal can be satisfied of the applicant’s identity – inconsistent life story – inconsistent documentation – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 24

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

Revised Citizenship Procedural Instruction (CPI) 16 - Assessing Identity

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

24 June 2022

1. The applicant has applied for review of a decision refusing his application for conferral of Australian citizenship under the Australian Citizenship Act 2007 (Cth) (‘the Act’).

   BACKGROUND

2. The applicant is from Myanmar and arrived in Australia in January 2010 by boat as an unauthorised maritime arrival.

3. On 26 May 2011, the applicant was granted a Protection (Class XA) visa (the visa).

4. On 29 May 2015, the applicant lodged an application for Australian citizenship by way of conferral.

5. On 13 October 2020, a delegate of the Minister refused to confer the applicant citizenship in circumstances where he was not satisfied of the applicant's identity pursuant to subsection 24(3) of the Act.

6. On 20 October 2020, the applicant lodged an application with this Tribunal for review of that decision.

   THE LAW

7. Section 24 provides for certain circumstances in which the conferral of Australian citizenship is prohibited. Section 24(3) relevantly provides that:

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

   THE RELEVANT POLICY

8. The relevant policy to be considered in this matter is relevantly provided below. The Tribunal also takes into account the Australian Citizenship [Policy Statement], which provides general guidance on citizenship applications to decision-makers.

   Revised Citizenship Procedural Instruction -  16 – Assessing Identity

9. Guidance on the identity requirements of s 24(3) is found in the Revised Citizenship Procedural Instruction (CPI) 16 - Assessing Identity. The Tribunal accepts that it should apply the policy unless there are cogent reasons not to do so.[1]

   [1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

10. CPI-16 states:

    Three pillars of identity

    When assessing a person's identity, the Department relies on a combination of three elements, referred to as the three pillars of identity. Each pillar is made up of individual characteristics.

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

    Documents – reliable and secure identity 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.

    Combining and fact checking the Three Pillars of Identity against each other provides a strong evidence‑base to establish an identity.

    The level of risk associated with the service being applied for determines the type of evidence required to assess a person's life story. For example, a citizenship application is likely to require more evidence than a visitor visa. In some cases, officers may determine that not all of the pillars of identity are necessary to establish a person's identity.

    EVIDENCE

11. I note that, along with the oral evidence that is discussed below, the applicant filed several statements and statutory declarations in support of his application, including from one of his brothers, his father, two of his sisters, and his wife. I have had reference to all of the materials put before the Tribunal in this matter, and have given them appropriate weight.

12. It is also appropriate to note that members of the applicant’s family who may have been available to give oral evidence and to be cross-examined were unable to do so due to the political situation in Myanmar, where they live, and the potential danger to them. Both parties agreed that these circumstances it was up to the Tribunal to decide on the weight to be given to their statements before the Tribunal.  

    Evidence of the Applicant

13. The applicant affirmed his statement of 5 October 2020, and his further statutory declaration of 12 May 2022. He said that he had always been known by the name  ‘MN’ and that the additional words ‘BAT’ had been added to his name by the UNHCR whilst he was in Malaysia.

14. The applicant said that his first wife had left him whilst he was in detention as they were unable to communicate. He said he had asked immigration officers to change the details in relation to his time in Bangladesh, as it was incorrect, and that his statement of 5 October 2020 and his statement “yesterday” had “cleared up” the information.

15. When cross-examined, the applicant said that he was currently married to SB who lived in Bangladesh. He had last spoken to her on the day before the hearing. It was noted that his wife had provided a statement in support of his application, dated 10 May 2022, in which she states that her and the applicant’s daughter was having trouble obtaining a passport in Bangladesh due to the applicant’s statelessness.

16. When questioned about the delegate’s decision of 13 October 2020, the applicant said that he understood the concerns noted by the delegate including the information that his wife had provided. He was asked why the information in his wife’s declaration of 10 May 2022 had not been provided earlier and said that it was due to difficulties in communication with Bangladesh and the need for assistance. He said he believed she “could provide that I’m not from Bangladesh and how she knew me” and that he did not understand how or when to provide things and he relied on his lawyer for this. The applicant said that he was not providing the new information which was contrary to what had been provided by him and his wife previously because of his citizenship application, but rather because the applicant wanted to ensure that the information the department had was correct.

17. The applicant said that his second marriage had been arranged by his wife’s brother RU, and said that he could provide a statement from RU if it was required although he had not done so prior to the hearing. The applicant stated that he understood the need to be truthful on his citizenship forms and that a failure to provide truthful information could be used against him.

18. The applicant said that he did not recall the information he provided at his original interview and that he only remembered signing the documents. The applicant did not recall whether a person by the name of SC from the organisation RACS had assisted him to complete the forms  - namely, the form 80 he completed dated 20 February 2010.

19. The applicant said that he recognised his statement of January 2013 in support of his wife’s visa application and acknowledged his signature. He said some of the information in that document was correct and some of it was not correct. He said the information was provided by a friend who filled in the form and that only some parts of it had been read to him before he signed the statement. He said that the friend had told him that he needed to fill the form out in a certain way and that he did not know what the friend had written. He also said that the friend had assisted a number of other people with such forms. In response to questioning he said that his friend wrote “his own ideas”.

20. Although the applicant recognised his signature on the form, he said that his friend had not explained the declaration nor the purpose of the declaration to him.

21. When questioned further about inconsistencies with form 1023, the applicant again said that he had relied on his friend.

22. When questioned about the lack of documents in relation to his life in his village in Myanmar, the applicant said that in 1996 or 1997 the whole village was moved so there were no documents in relation to his life before that time, including the time that he was at school.

23. The applicant said that because of the difficulties in Myanmar he had only been able to re-establish regular contact with his village and family about one year ago, and that prior to that time communication had been sporadic. The applicant said his parents did not have bank accounts in Myanmar and that when he sent money to assist them it had to be sent through third parties. Those third parties took a percentage of the money sent before sending it on to his parents.

24. The applicant said that the errors in relation to his family and in particular the wrong information in relation to dates of birth for family members was because his friend had filled out the information incorrectly. The applicant confirmed that the information had been provided prior to the appointment of his current representative, Mr Taylor.

25. When cross-examined about his name, the applicant said that he had a single name –  ‘MN’.  He said that  ‘BAT’ had been given to him by the UNHCR. He said that his father’s name was AT and his given name was MN. He said that the friend had written the name incorrectly on the form 424C.

26. The applicant said that his friend had asked him questions and that he had given him the answers in relation to his mother’s name, father’s name, and his own name.

27. The applicant agreed that when asked in his citizenship form if he had ever been known by any other name, he said ‘No’ and that he had not disclosed that he had been known as ’MNBAT’, nor that the UNHCR card had been based on information given by him in Malaysia. He said he did not provide any documents to the UNHCR at that time, that he first filled in the form and that he got his card a “couple of years later”.

28. The applicant accepted that he had not disclosed on his citizenship application form that he had been known by the name MNBAT and said that that was in fact the name of his father. When asked about his answer to question 14 of the Form 424C, he said that he had not written that his family name was AT and that his friend had written it.

29. In relation to his schooling the applicant said that he had attended school when he was very little and that he had studied Arabic. He said he could only approximate when he was at the school and he thought he was three or four at the time. The school was in a Rakhine village close to where his family lived at the time. He said that he walked to school and that it took about 15 minutes. When asked whether he required documents in order to enrol, the applicant said that there were no documents. Classes were said to have been taught in the Burmese language.

30. When asked about his siblings attending school, the applicant said that his elder sister had attended but that she was very ill now. He thought that his sister had been in year one at school when he was in year three. It was noted that in 2010, when questioned about schooling at his interview, the applicant wrote on his form that he had never been to school.

31. When the applicant was referred to his interview in 2010, the applicant said that he had actually told the interviewer that he had studied at a year one level and that he had studied Arabic and the Koran, and that the interviewer had not recorded his response correctly.

32. The Respondent’s counsel referred the Applicant to a statement he had made in support of a partner visa, where he said he finished year six in 1990 and then was unable to finish school due to violence and the actions of the Burmese Military Regime. The applicant further explained that his friend had simply written this information because his friend did not think that it looked good if there was no information as to his education.

33. In relation to his family, the applicant said that his father was not stateless and was a citizen of Myanmar. He said that his father had inherited land from his grandfather. He said that his grandparents had owned the land, but the military had taken it over. Subsequently, his father bought land while the applicant was in Malaysia with money that the applicant had sent to him from Malaysia.

34. When referred to the information as to his siblings that was included in his form 80, the applicant was referred to the paragraph in the form where he stated that his eldest sister “went crazy........ then she died”. The applicant went on to say in the statement of claims attached to the form that he did not include his eldest sister in his entry documents as  she had died. The applicant gave evidence to the Tribunal that he had meant that her husband had died, and that she had ‘gone crazy’ as a result.

35. The applicant said he did not mention his sister UH  in the two interviews in 2010  because she had married and moved into her husband’s home a long time ago. The applicant said he thought he only had to give the names of those who were living in his house and that his younger sister had also not been included even though she still lived at home with his parents. He had mentioned some siblings in his interviews in 2010 but not his elder or younger sister. He did not know when his sister A was born or when she moved out of the family home, nor when his sister UJ was born. The applicant also noted he did not know his own date of birth, and that it had been given to him by the UNHCR.

36. The applicant said that his mother had died in 2013. He said that his mother was a citizen of Myanmar but he would not be able to locate records because of the fact that their village had been moved and any records destroyed.

37. He did not know the date of birth of his two brothers, but said that his brother AI  had been given up for adoption and then brought back to the family. He said AI was now in Malaysia, although there was no statement from him before the Tribunal.

38. The applicant referred to his nieces having married and said that he regularly sent money to his family both for their general support and also when the marriages were taking place. He said his family had no bank accounts and that he would send the money to a Burmese friend in a village close to where his family lived who would then pass it on to the family. The applicant said that he had last sent money at the beginning of Ramadan in April 2022, and that it was about $700 in cash.

39. In response to questioning, the applicant said that he had been arrested in Malaysia two or three times and deported to Thailand. He said that he had not been arrested in Myanmar or in Australia, although he had been taken by the military and used as free labour whilst in Myanmar.

40. The applicant said that when he had travelled by boat from Malaysia to Australia, he knew most of the people on the boat because they had all known each other before and become close. This was inconsistent with his interview in January 2010, where the applicant said he did not know anyone before he got onto the boat but lived close to them once he arrived in Australia. The applicant said none of the witnesses who gave evidence on his behalf had worked with him in Malaysia, but that one, NA, had worked close by.

41. The applicant said that he had worked in Malaysia at a factory, but was unable to get any evidence as to his work history or the name of the factory where he worked. He said that he had worked using his UNHCR card.

42. The applicant produced a number of photographs to the Tribunal which he said were photos of his family and had been sent to him on WhatsApp or IMO. No messages from WhatsApp or IMO were produced to the Tribunal.

43. The applicant recalled the authorities checking the family household in Myanmar and said that his father had kept the household register up to date. However, he said that this list had maybe been lost or damaged, he was unsure, and under the new regime his father had been issued new documents. The applicant said “that’s why my name is not there.”

44. The applicant said that his father had a national identity card (a green card). He only found out that his father had the card after he had asked about the household register. His mother had apparently lost her card. On re-examination, the applicant said that his father’s green card was not currently valid and that he needed to have a red card to travel, but that “those cards are not actually issued to the Muslims”. In order to travel now, his father would need to go to the immigration department in order to be issued with a travel permit and gain permission to be able to travel. His father would not be able to attain a passport in Myanmar.

45. When questioned about his statement of 12 May 2022, the applicant said that the statement was written in English and translated for him by AM, an employee of the Applicant’s representative. He said the statement had been written by his legal representative and translated paragraph by paragraph for him and that he agreed with all that had been written.

46. When re-examined, the applicant said that in his culture there was not a concept of ‘family name’ and ‘given name’ – they have just one name.

47. The applicant said that the information on the sponsorship form which had been sent in support of his wife’s partner visa application had been incorrect, and that his friend had made it all up because he thought it would be good for the applicant. The applicant said he never had any idea what was actually said.

    SA

48. The witness affirmed his statutory declaration of 26 March 2021 and 12 May 2022, and said that he had known both of the applicant’s parents in Myanmar. However, he had left 30 years ago.

49. He had recognised the applicant from the names of his parents when the applicant arrived in Australia, and said that the Rohingya community in Australia was a small community, and that they all knew each other.

50. SA also stated that he aided the applicant in sending money back to his family, as SA has two brothers who remain in Myanmar. He would send the applicant’s money to his relatives in Myanmar, who would then give it to the applicant’s family.

51. SA said that he had spoken to AM and also his daughter about his statement but that he had not spoken to any other witnesses, although it was noted in cross-examination that paragraphs six and seven of his statement were identical to those of three other witnesses. He explained the similarity by saying that it was a small community and that they knew each other well and had similar experiences. He had read the statement and understood it before he had signed it.

    MZ

52. The witness MZ affirmed his statutory declaration of 21 March 2021. He said that his parents’ house and the applicant’s parents’ house were back-to-back in the village in Myanmar and that he lived in the same village for 10 to 15 years.

53. He said he and the applicant went to school together, and that it was a government school located in a nearby village. He was not aware of his age when he went to school and he was not in the same class as the applicant as he was younger.

54. The witness knew the names of the applicant’s parents but could not remember the age of either parent. He said that the father was still alive but that the applicant’s mother had died. He said that the applicant had four sisters and two brothers.

55. The witness said that he had met the applicant in Malaysia in 1998 and that the applicant had arrived in Malaysia one or two years before him.

1. MZ said that the statutory declaration he had signed had been prepared by AM from the applicant’s lawyer’s office, and that he had not discussed his statement with any other witness. He said that any similarities were because the applicant and the witnesses were all from a small community and from the same group.

   NA

2. The witness affirmed his statement of 20 January 2022. He said that AM had assisted with his statement and that it had been prepared in Rohingya and that AM wrote it in English. He said that he had not discussed his statement with others.

3. The witness is now an Australian citizen and he supports the Rohingya community group in Australia.

4. The witness said that he was a friend and the classmate of the applicant’s younger brother ‘Z’. He said that the school he attended was a small school and that he was very young when he attended school. He did not know details of the applicant’s schooling.

5. The witness said that the applicant’s father’s name was AT. He did not know any of the applicant’s brothers and sisters other than Z, his former classmate.

6. The witness had met the applicant in Malaysia and said that they worked at the same factory together whilst in Malaysia from 2007 to 2009. They had come on the same boat from Malaysia to Australia.

7. The witness said that he had not discussed his statement with any other witnesses and said that he did not know why there were virtually identical paragraphs in the statements of three other witnesses. He said his statement was all in his own words.

   DISCUSSION

8. This case clearly illustrates the dilemma facing the Tribunal when an applicant, who is applying for citizenship, cannot rely on biometrics or reliable documentation and must rely on life story in circumstances where they may have fled violence or persecution in a country or a situation where many of the people who knew them from birth to the present are either unwilling or unable to assist in corroborating aspects of their life story.

9. The conferral of citizenship must always be taken very seriously. It is perhaps one of the most important privileges Australia can offer a non-citizen and confers a range of benefits, including the ability to obtain an Australian passport.

10. The Tribunal must be satisfied as to the identity of the applicant, and the onus is on the applicant to establish his or her identity so that the Tribunal can be positively satisfied. This has been recognised in many cases before this Tribunal and is also emphasised in the Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) In order to establish identity, the applicant’s life story must be consistent virtually from the time of birth until the present.

11. The applicant in this case is unable to rely on biometrics to establish his identity. The applicant is also unable to rely on documentary evidence as to his identity. In fact, there were no documents before the Tribunal which provided reliable evidence as to the applicant’s identity. The applicant’s  UNHCR card, for example, was issued in a name which the applicant said is not correct.

12. There are omissions and inconsistencies in the household register including the number of family members and relevant dates of birth. The applicant, in his evidence, told the Tribunal that the household register for his family had been lost or damaged, and as a result the family did not have a register for many years. This was confirmed by the evidence of other family members. The applicant, supported by the evidence of other family members, said that his name did not appear on the new household register as he had left Myanmar prior to the time the new register was issued. The old register was not produced to the Tribunal and was said to have been lost.

13. Although the applicant told the Tribunal that the household register was updated annually, there was no evidence as to how and from whom the applicant’s father obtained the updated register. Given the many inconsistencies in the information contained in the document, it is very difficult to place any weight on the household register.

14. There were many inconsistencies in the applicant’s life story. Some of these inconsistencies can in my view be properly explained, for example; the confusion as to his name. It is not inconceivable that whilst in Malaysia, the applicant’s father‘s name may have been added as part of his identification. It is also possible that his name became confused in the translation from Rohingya to English. Other inconsistencies in relation to his schooling, his siblings, his time in Malaysia and when and where he had met other people are not so easily explained. The lack of consistency in the documents the applicant filed with the Department is also serious and it is not a sufficient explanation that the applicant relied on a friend or friends and either did not know or did not seek to correct information which was untrue.

15. There was a lack of clarity as to the circumstances of the applicant’s marriage in Bangladesh. I accept that the marriage was arranged by the applicant’s wife’s brother who had an acquaintance with the applicant. I note that the applicant and his wife lied to the Department in relation to the wife’s partner visa application. Although this may be primarily an issue relating to character, which is not an issue currently before the Tribunal, it is not helpful to the applicant in circumstances where the Tribunal must rely to a large extent on the applicant’s evidence as to his life story.  I note that there was a later apology and an attempt to provide information which was correct.

16. I note the applicant’s wife’s evidence regarding the issues with their daughter obtaining a Bangladeshi passport because of the applicant’s statelessness, but this is not a relevant issue when considering the applicant’s life story.

17. The applicant gave a number of different versions of events in relation to his arrival in Malaysia. I accept that some of the irregularities were resolved by the filing of the transcript of the applicant’s arrival interview on 21 January 2010, however doubts and a lack of any compelling evidence as to the applicant’s time in Malaysia remain. For example, where did the applicant work, for how long, and why is there no record of his work history. The applicant had also failed to disclose in a consistent fashion the fact that he had been arrested on multiple occasions in Malaysia due to his immigration status and that he had been deported to Thailand on a number of occasions.

18. There were also inconsistencies within his evidence as to the persons with whom he had travelled by boat from Malaysia to Australia.  There was inconsistent evidence as to the applicant’s schooling. It was not clear whether he had attended a religious school or whether he had attended a government school in a village not far from his own. There was no documentation to support his school attendance or the period during which he had attended school.

19. It was a particular concern that there were so many discrepancies in relation to the applicant’s family, including the actual family members, their dates of birth, and what had happened to them. It was impossible to be satisfied as to why the applicant said his older sister had  “gone crazy” and died. Nothing in this regard was included in the statements of the applicant’s sisters UH and UJ, although their statements did provide evidence as to discrepancies in the household register, such as their mother’s correct name. There was also a lack of reliable evidence as to the applicant’s younger sister and a complete lack of detail about his brothers except that one was in Malaysia. Another brother, in Myanmar, provided a statement to the Tribunal to which I have had regard. However, he was, perhaps understandably, not called to give evidence. I note that the photographs which the Applicant provided to the Tribunal, which he said showed his family, did not include him.

20. The Tribunal was unable to place a great deal of weight on the evidence of the witnesses who appeared on behalf of the applicant. None of these witnesses had known the applicant over the course of his lifetime. One of the witnesses had known him in Malaysia and had only recognised him because of his family name. Others had not known him at all but had known other family members.

21. I note that counsel for the Minister raised the question of the similarities in the evidence of the witnesses who gave oral evidence on behalf of the applicant. Each of these witnesses gave evidence to the Tribunal that they had not spoken to each other in preparation of their statements put before the Tribunal. I draw no adverse conclusion as to the veracity of the witnesses or the quality of their evidence because of the similarities, but rather accept that this is due the similarity of the witnesses’ experiences, the small Rohingya community in Australia, and the fact that all the statements were, quite properly, prepared in their behalf by AM, who was proficient in both the Rohingya and English language from the offices of the applicant’s legal representative. Except for MZ, the witnesses did not recall the applicant in Myanmar and were not able to provide details of his life in that country. MZ also seemed uncertain as to the members of the applicant’s family.

22. When considered overall, there are too many inconsistencies in the applicant’s evidence as to his life story, including inconsistencies in official documents completed by the applicant, third party documents such as the household register submitted to the Department and the lack of clarity and consistency in the applicant’s evidence to the Tribunal for the Tribunal to be satisfied as to the applicant’s identity for the purposes of s 24(3) of the Act.

23. It was unfortunate that members of the applicant’s family in Myanmar were unable to give evidence due to fears for their personal safety. However, having regard to their written statements filed with the Tribunal, it is unlikely that their oral evidence would have been sufficient to enable the Tribunal to be satisfied as to the applicant’s identity. The applicant is not precluded from making another application for citizenship, and in doing so he would be assisted if he were able to produce a clear and consistent life story, supported by independent evidence wherever possible and a cogent explanation for the inconsistencies in the information provided, over time, to the Department.

    DECISION

24. I find that the correct or preferable decision is to affirm the reviewable decision dated 13 October 2020.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.

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

Associate

Dated: 24 June 2022

Date(s) of hearing:	12, 13 & 20 May 2022
Date final submissions received:	13 May 2022
Solicitors for the Applicant:	Mr D. Taylor, Sydney West Migration Pty Ltd
Counsel for the Respondent:	Ms K. Hooper
Solicitors for the Respondent:	Minter Ellison