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

[2020] AATA 553

VTGV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 553 (13 March 2020)

Division: General Division

File Number(s):       2019/0014

Re:VTGV (a peusdonym)     

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Member O’Loughlin

Date:13 March 2020

Place:Adelaide

The Tribunal affirms the decision of the delegate of the Minister.

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M O’LOUGHLIN
(Member)

Catchwords

IMMIGRATION AND CITIZENSHIP – citizenship – whether Tribunal satisfied as to the identity of the applicant – insufficient evidence regarding identity of the applicant – decision under review affirmed.

Legislation

Australian Citizenship Act 2007

Cases

Beyan v Minister for Immigration and Border Protection [2015] AATA 256 (24 April 2015)

Dhayakpa v Immigration and Border Protection [2015] AATA 310 (8 May 2015)

REASONS FOR DECISION

13 March 2020

1. On 2 February 2016 VTGV (the applicant) lodged an application for Australian citizenship.

2. That application was refused by a delegate of the Minister for Home Affairs by decision dated 10 December 2018. The delegate was not satisfied that the applicant was of good character as contemplated by s 21(2)(h) of the Australian Citizenship Act 2007 (the Act). The applicant was therefore not eligible to become an Australian citizen and the Minister was prohibited from approving the application by reason of the provisions of s 24(1A).  Further, the delegate was not satisfied of the applicant’s identity and therefore found that she was prohibited from approving the application by reason of the provisions of s 24 (3). For those reasons the delegate decided to refuse the applicant’s application to become an Australian citizen.

3. That decision is reviewable by this Tribunal pursuant to s 52(1)(b) of the Act. The applicant sought review and appeared before the Tribunal on 31 October 2019, assisted by counsel, to give evidence and make submissions.

   APPLICANT’S EVIDENCE

4. The applicant provided a statutory declaration dated 5 September 2019[1] and expanded on it in her oral evidence.

   [1]    Ex A1.

5. She said that she was born in the north of Vietnam in Town A and lived there until she was 14 years old.  She was a member of a church and in the course of church activities took part in a candlelight march in City B, where she attracted the attention of authorities. She was about 13 years old at the time.

6. After her involvement in the march the authorities wrote to her directing her to attend for a meeting of some sort.  She said that she was too scared and did not go.

7. She gave evidence that in due course a second letter came and she was again directed to attend.  A fine for her previous failure to attend was attached.  Again, she was scared and did not go.

8. She said that this happened many times and she did not respond.  Eventually representatives of the authorities attended her home.  They harassed her family and interfered with her mother’s food stall by stealing food from it.

9. Her father, who was a fisherman, had died at some time between the candlelight march and the harassment by the authorities.  She and her four younger sisters lived with her mother who supported them by working as a hawker.

10. The applicant’s mother became concerned about the family’s vulnerability and she and the applicant agreed that the applicant would leave.  The applicant said that she would have preferred to stay and help but that her mother wanted her to go in the hope of avoiding harassment.

11. She said that she did not know where to go but that a person came to collect her and take her away.  She did not know where she was going.  She took one of her sisters with her to ease the pressure on her mother.

12. Ultimately the two girls boarded a boat which, after 22 days at sea, was detected by Border Force.  The applicant and other passengers were taken to Christmas Island.

13. After an arrival interview the applicant was granted a protection visa.  The record of the entry interview was admitted into evidence.

14. The Tribunal notes that the interview was apparently conducted on Date 1 and that the applicant’s claimed birthdate is Date 2, meaning that the interview was about 6 weeks before her 15th birthday.

15. The applicant said that she was nervous and overwhelmed at the time of the interview and that she had finished 22 days at sea about 3 days before the interview took place.  She said that she was confused and that she did not know whether she could be open with Australian authorities.  She was reluctant to tell them about the activities that had attracted the attention of the local authorities because she was worried that the Australians would report back to Vietnam and her family’s safety might be compromised.

16. She also said that she did not have any identity documents from Vietnam with her.  She said that she does not believe that any identity documents had been issued by the Vietnamese government before she left and that if her mother had had any she would have known.

17. She said that as a Catholic, her family had what she described as “a family book” in which important events such as births were recorded, but she did not have a copy of that.

18. She was asked whether she had an identity card issued by the Vietnamese government and replied that she did not.  She said that she did not really know about these cards although she had since discussed them with other Vietnamese people living in Australia.  She understands that they are provided to inhabitants of regional areas by travelling teams of government representatives and she assumes that she missed out because when they visited her area she did not yet qualify for a card.

19. In any event, she said that one had not been issued for her and that therefore there was no way she could get a copy.

20. The applicant applied for citizenship and it is not controversial that the application was lodged on 2 February 2016.

21. She was asked for further information and on 15 July 2017 she provided a Form 80 together with some supporting documentation.

22. She gave evidence that she did not have a birth certificate and was advised that she was required to provide one within 28 days. She provided her Baptism certificate but this was not accepted.

23. She said that her mother told her that she would get a friend to help obtain a birth certificate because her mother had moved to the south of Vietnam and it was not convenient for her mother to obtain it herself.

24. A document was duly provided by her mother in Vietnam and she provided it to the Department.

25. The applicant gave evidence that she understands that the Department investigated this certificate and determined that it had not been issued by the People’s Committee of Province C as suggested on the face of the document.

26. The applicant gave evidence that it did not occur to her that the document was “bogus” at the time that she submitted it to the Department.

27. She said that she believed that it was genuine and further that she had not seen a birth certificate before and had no reason to doubt it.

28. She said that her mother had told her that she had help from a friend, a lady who works for the ward and was able to get the birth certificate for her.

29. The applicant said that after the Department raised its concerns about the genuineness of the birth certificate, she spoke to her mother who also believed that the document was genuine.

30. At this point the applicant explained that she is not in regular contact with her mother or siblings in Vietnam because her mother believes that her telephone is being monitored by the authorities and she had asked her not to call too often, particularly since July 2019.

31. The applicant said that she had been struggling to deal with so many issues and that what she wanted was to be safe and to settle down.  She also explained that she had been injured in a car accident and that her memory had been affected by her injuries.

32. She also explained that she had not wanted her mother to give evidence to the Tribunal because she had caused her mother enough problems already and did not want her worrying further.

33. Under cross examination the applicant said that her family had attracted some attention from the authorities in Vietnam before the candlelight march. On being pressed as to whether that was before or after the march she said she was not sure.

34. She was questioned about healthcare and education during her childhood in Vietnam.  She said that medical and hospital care was provided by the Church and that she was educated in a government school.

35. She said that she had not tried to get records from the Church about her early healthcare.  Further she had not tried to get records from the government about her education as she did not believe that they would be relevant.

36. She was asked about registration records that the respondent asserts are held by every household in Vietnam but the applicant said she had never heard of a family registration book until her lawyer asked her about it. She said she had not asked her family if there is one.

37. There was some discussion about a letter of 26 June 2019 prepared by a priest. The letter was quoted as relevantly saying:[2]

    “… [name matching the applicant’s name] is a parishioner of Parish D where I am in charge of, the information certified by me is true.”

    [2]    Ex A3.

38. It was pointed out that the letter states that the applicant is a parishioner although she says she is not been there since 2010. The applicant said that the priest presumably based his letter on the records and that there may be a translating error. She conceded she had never met that priest.

39. She was again asked if she is aware that the Vietnamese government issues national identity cards to citizens when they turn 14. She said that she believes from discussing this with her friends that the age is now 16 not 14.  It is not clear what she says the age for a card was when she left Vietnam. She repeated that she did not know about these cards when she was in Vietnam and she did not believe one had been issued to her so she had not sought a copy.

40. The applicant was cross-examined about some apparent inconsistencies in relation to information provided in the form 80, in particular in respect of the date of death of one of her sisters. She said that when she completed the form she did not think the answers were significant. In re-examination she clarified that she provided her answers without any help and did not completely understand what she was being asked. The Tribunal makes no finding in relation to her credibility arising from these apparent inconsistencies.

41. The applicant was asked about the apparently false birth certificate. She clarified her understanding of the steps her mother had taken to obtain it. She said that she understands that her mother had to return to the applicant’s birthplace and when she was there she contacted her friend who worked for the local authority.

42. The applicant said that her mother, who has moved to the south of Vietnam, had to endure a bus trip of about two days each way and incur the expense of accommodation while she organised the birth certificate.

43. She said that she felt she had put her mother to too much trouble already and did not wish to obtain a statement from her about the difficulty of obtaining the birth certificate.

44. In relation to the question of her mother giving evidence to the tribunal, the applicant said that the time zones are different and her mother might be working so it would not be possible for her to give evidence.

45. It was put to her that she did not want to call her mother because her evidence would not be of assistance. In reply to that she said she did not know whether her mother’s evidence would help but that she has already been a big nuisance to her mother.

46. The applicant was questioned about postal communication between her mother and herself. She said that her mother cannot send documents because they are intercepted by the police. She said that in 2016 or 17, documents that her mother had tried to post were seized and her mother was imprisoned for a number of days.

47. The applicant said that she told her mother not to post anymore documents and so her mother started using a local shop’s email.

    SUBMISSIONS

48. There was some discussion before the Tribunal about the allegedly forged birth certificate.

49. The respondent asserted that the document was false and referred to correspondence from the People’s Committee of Ward E of the Socialist Republic of Vietnam dated 22 December 2017.[3] That document appears to refer to the original of the document at page 98 of exhibit R1 and states that was not issued by the People’s Committee of Ward E.

    [3]    Ex R4.

50. The applicant does not formally concede that the letter from the People’s Committee of the Ward E proves that the birth certificate she provided is a forgery. Her submission is that even on the respondent’s strongest case the application should be allowed.

51. The applicant submitted that a letter from the People’s Committee of Ward E dated Date 3[4], which confirmed that [name matching the applicant’s], daughter of Person 1 was born on Date 2.[5] The document also records that the committee had previously certified that information on 26 January 2018 and the applicant submitted that the document at page 111 of exhibit R1 is the record of that earlier certification.

    [4]   Ex A2.

    [5]   Date 2 being the same date as the applicant’s purported birthday.

52. In other words, the applicant submitted that although the birth certificate provided by her may be a forgery, the information that it contains is accurate. 

53. The respondent asked the Tribunal to observe that the translation of that document at page 111 of exhibit R1 suggests that [name matching the applicant’s] is residing locally. That document is dated 26 January 2018. The applicant suggested that this could be a difficulty with the translation and that it does not intend to suggest that [name matching the applicant’s] resides in Vietnam at the time of that letter. No evidence was brought in support of that submission and the Tribunal has no basis to find that the translation is not accurate.

54. The respondent drew the Tribunal’s attention to the comments of Deputy President Nicholson in Dhayakpa v Immigration and Border Protection:[6]   

    Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.

    (emphasis added)

    [6] [2015] AATA 310 (8 May 2015).

55. The respondent also drew the Tribunal’s attention to the requests from the respondent to the applicant to provide school and medical records in support of her application for citizenship,[7] and the applicant’s failure to subsequently attempt to obtain those documents. In respect of the school records, the applicant said in cross examination, to the effect, that she did not know, and had not asked, whether a personal attendance by her mother on the school would be required to obtain those records.

    [7]  Ex R1, T11, and T13.

56. The respondent submitted that there was an apparent inconsistency about why the applicant had not requested this further documentation from her mother. That on one hand, the applicant had said that she had not done so because there was some risk of those documents being intercepted by Vietnamese authorities; while on the other hand, the mother had provided other documents to the applicant by email on the applicant’s requests.

57. The respondent submitted further that the applicant had not provided any documents in respect of any of her other family members. Those documents, in the respondent’s submission, would be expected to be able to link the applicant to that family.

    FINDINGS

58. The Tribunal finds that the birth certificate provided by the applicant to the Department and appearing at page 97 of the T documents is not genuine.

59. The Tribunal finds that the important details set out in the false birth certificate are accurate.

60. The Tribunal finds that the letter from the priest states that [name matching the applicant’s] is a parishioner in Vietnam, which suggests that she may still be residing there. The Tribunal finds that the document at page 111 of the T documents states that the woman named [name matching the applicant’s] is certified as residing locally in Vietnam by the People’s Committee of Ward E.

61. The Minister contends that the Tribunal cannot be satisfied of the applicant’s identity for the purposes of s 24(3) of the Act.

62. It appears that the question for the Tribunal is not whether [name matching the applicant’s], daughter of Person 1, was born in Ward E on Date 2.[8]  There is sufficient documentation to show that and the Tribunal so finds. The question for the Tribunal is whether or not the applicant is [name matching the applicant’s].

    [8]  Date 2 being the same date as the applicant’s purported birthday.

63. There is insufficient documentation to link the applicant to her purported identity. The Tribunal finds that the applicant failed to enquire or obtain documentation in respect of her schooling, medical records, and other family members. The applicant’s failure to enquiry about or obtain these documents was in circumstances where it is reasonable to expect for those attempts to have been made.

64. The Tribunal adopts the comments extracted above from the Dhayakp decision. The Tribunal notes also the often quoted decision of Beyan v Minister for Immigration and Border Protection in which Senior Member Walsh emphasised the importance of certainty as to the identity of the applicant for the purposes of a grant of Citizenship:[9]

    … a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.

    [9] [2015] AATA 256 (24 April 2015).

65. Approaching this matter with caution, the Tribunal cannot be satisfied that the applicant is the woman named [name matching the applicant’s] referred to by the People’s Committee of Ward E and by the priest. Accordingly, the Tribunal is not satisfied as to the applicant’s identity for the purposes of s 24(3) of the Act.

66. For that reason Tribunal affirms the decision of the delegate of the Minister.

I certify that the preceding   sixty-six (66) paragraphs are a true copy of the reasons for the decision herein of Member O’Loughlin

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Administrative Assistant Legal

Dated 13 March 2020

Date of hearing:   31 October 2019

Applicant’s representative:                Mr M Simmons of MSM Legal

Respondent’s representative:            Mr A Burgess of Sparke Helmore Lawyers