Wadamkhaung and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 3079
•27 August 2021
Wadamkhaung and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3079 (27 August 2021)
Division:GENERAL DIVISION
File Number(s): 2020/0738
Re:Hpung Wadamkhaung
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Damien O’Donovan
Date: 27 August 2021
Place:Canberra
The decision under review is affirmed.
………………..[sgd]…………………..
Senior Member Damien O’DonovanCatchwords
CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – whether Tribunal is satisfied of Applicant’s identity for the purposes of subsection 24(3) – reliability of the Applicant’s evidence – reviewable decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth) ss10, 24, 40.
Cases
Ahmadi and Minister for Immigration and Border Protection [2018] AATA 4189
LHSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4654
Secondary Materials
Oxford English Dictionary (1989) second edition, < FOR DECISION
Introduction
The applicant is seeking to become an Australian citizen. For him to achieve that goal I must be satisfied of his identity. The respondent contends that on the evidence available to me I could not be satisfied of the applicant’s identity in the sense required by the Australian Citizenship Act 2007 (the Act).
Many things are known about the applicant and can be verified. He came to Australia on a Refugee (Subclass 200) visa in July 2011. He received that visa whilst he was in Malaysia. Upon receiving the visa he and his wife moved to Australia with their son Chrislun. They have subsequently had two more children. They live in Wagga Wagga NSW and are well integrated members of the community there. The applicant’s wife and his son have become Australian citizens.
There is less known about the applicant’s life prior to his arrival in Australia.
The applicant has given evidence that he came to Malaysia from Myanmar in 2006 and that his wife joined him there in 2008. Their time in Malaysia involved interactions with the UN and are documented sufficiently to satisfy me of the accuracy of his accounts.
Moving back in time, prior to the applicant’s arrival in Malaysia, nothing is documented.
The applicant has (subject to one exception which I discuss further below) been unable to provide documentation of his identity in Myanmar. He has explained the lack of documentation and that explanation is consistent with country information which suggests that many people born in Myanmar have no identity documents. I draw no adverse conclusions from his lack of documents.
However, the consequence is that nothing about the first 30 years of the applicant’s life is verifiable from a source independent of the applicant and his immediate family. None of his claims can be readily tested.
The applicant claims to come from a remote village in the most northern region of Myanmar, near the Chinese border. He is an only child. Both of his parents are dead. The uncle who raised him following his parents’ deaths has left the village and cannot be located. Any contact with the village where the applicant lived for almost 30 years is practically impossible and direct communication by telephone is impossible. Subject to one exception there are no identity records which the applicant is aware of held by anyone because his parents are dead and records were sparse in any event.
In the absence of any government records or travel documents, the oral evidence of the applicant and his family carries the burden of persuasion as to the applicant’s identity prior to his emergence in Malaysia in 2006.
There are some aspects of the applicant’s evidence which I have no difficulty in accepting. I am satisfied that the descriptions he gave of border crossings from Myanmar to Malaysia arranged by people smugglers are true. But I am not persuaded that either the applicant or his close relatives who gave evidence are reliable enough witnesses, that I should accept their evidence in relation to the applicant’s life prior to crossing the border into Thailand.
On the contrary, I am satisfied that the applicant did obtain and submit to the respondent a self-evidently bogus marriage certificate, which he knew was fake, for the purpose of bolstering his claims about his early life. This raises significant doubt in my mind as to the truthfulness of his evidence and the evidence of each family member who made claims about the marriage and the circumstances of the wedding.
Further, he has made sworn statements about his use of a different name, the name Sar Aung, which are inconsistent with the known facts. Similarly, he has made statements about his relationship to a relative Sar Awng which are directly contradicted by statements made by other relatives.
On the very few details the applicant has given about his early life he has never been consistent. The length of his education, the order in which his parents died and the period in which he pursued farming have all been the subject of inconsistent statements. On their own they do not amount to much and could be dismissed as translation errors, but in combination, they cast sufficient doubt on the accuracy with which the witnesses have described the applicant’s life prior to his departure from Myanmar for me to be satisfied as to his identity.
While it is quite possible that the applicant’s claims about his early life are true, I am not satisfied that they are. Because I am not satisfied, the applicant does not meet the requirements for a grant of citizenship.
Legal Framework
In order to become an Australian citizen, it is first necessary to establish your identity to the satisfaction of the Minister and, on review, this Tribunal standing in his shoes. The Minister (and the Tribunal) is expressly prohibited from approving a person becoming an Australian citizen unless they are ‘satisfied of the identity of the person’.[1]
[1] Australian Citizenship Act 2007 (Cth) s 24(3).
While the term ‘identity’ is not defined in the Act, it is clear from the meaning of the word, understood in the context in which it appears, that reaching satisfaction as to a person’s identity requires more than establishing the name that the person currently goes by and where they currently live.
The Act is concerned with identity at a fundamental level. The Act gives power to the Minister to request personal identifiers (including fingerprints, handprints and iris scans)[2] which are permanent unchanging biological markers of the unique identity of an applicant for citizenship, from birth to the present. These identifiers can be sought for the purposes of the Minister being satisfied of the identity of a person.[3] It has been noted previously in the AAT that the word ‘identity’, as ordinarily understood, is concerned with two fundamental characteristics – contrast, in the sense that a person is distinguishable from other persons or things with whom a valid comparison may be made - and continuity, in the sense that it is possible to trace an identified person across time and circumstances.[4] This second element of identity is captured in the Oxford English Dictionary definition ‘The sameness of a person or thing at all times or in all circumstances’.[5]
[2] Australian Citizenship Act 2007 (Cth) s 10(1)(a)-(f).
[3] Australian Citizenship Act 2007 (Cth) s 40.
[4] See the discussion of the concept by Senior Member Puplick in LHSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4654, [75]-[86].
[5] Oxford English Dictionary (1989) second edition, < accessed 26 May 2021.
Accordingly, as the Citizenship Policy Instructions note:
…it is not sufficient to be satisfied of a person’s identity at 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…[to get] a complete picture of a person’s identity from birth to present…[and] link the Applicant’s identity at birth to the identity provided in their application for Australian citizenship by considering key chronological events in the person’s life.
This focus on establishing a person’s identity across time means that Australian citizenship is not a means by which a person can escape their past and start again. It is given only to those who can satisfy the relevant decision maker of ‘who they are’ in the deepest sense of that phrase – where they were born, the places they have lived, the names they have been known by and their current place in the Australian community. Establishing identity after a long and complex life is not an easy task for some, but the law requires that it be done as an essential part of the citizenship process.
If the law allowed the conferral of citizenship in circumstances where a person could arrive in Australia, assume an identity and live that way going forward, the risks to Australia are obvious. Without satisfactory knowledge of a person’s past it would be difficult or impossible to know whether they are the kind of person on whom Australia can and should lawfully confer citizenship. Such a system would provide clear incentives to destroy information about the past, giving people the ability to discard their past and create a new future for themselves as Australian citizens. Rigour must be applied and the Tribunal must be affirmatively satisfied of the identity of the person.
A consequence of this requirement is that some people who have genuinely escaped a dangerous situation, without documentation and with limited means of obtaining it, may not be able to satisfy the identity threshold requirements for citizenship if they are not sufficiently credible. This does not prevent them from continuing to live in Australia and establishing themselves as part of the Australian community, but it does create a barrier to them enjoying the benefits that Australian citizenship confers.
It is possible that the Applicant falls into this category. There are many aspects of his life story that I am satisfied about and it is possible that everything which he has told the Tribunal is true. But as a consequence of the provision of a bogus document and serious inconsistencies in key aspects of his life story I am left with lingering doubts about his truthfulness and consequently his identity. In those circumstances I have not reached the requisite state of satisfaction.
This does not foreclose entirely the possibility of citizenship for the applicant. He may make a further application to become a citizen and with more determined efforts to obtain persuasive evidence about the circumstances of his early life he may well be able to satisfy a future decision maker as to his identity. If it is the case that the applicant can contact the village in which he grew up and has people willing to assist him there, there may be further evidence of his life prior to leaving for Malaysia. 30 years spent in a place must have left a mark. With the careful assembly of evidence it may be that the lingering doubts which the bogus document and inconsistent accounts have left can be overcome. But on the material available to me, the applicant has not satisfied me of his identity.
Evidence
The Tribunal received the following material into evidence:
(a)T-Documents which were prepared by the Respondent and filed on 4 May 2020, which included all of the material before the delegate (Exhibit 1)
(b)Supplementary T-Documents which were prepared by the Respondent and filed on 19 May 2020 (Exhibit 2)
(c)Supplementary T-Documents which were prepared by the Respondent and filed on 18 September 2020 (Exhibit 3)
(d)A joint tender bundle which was provided by the parties on 27 October 2020 (Exhibit 4)
(e)A copy of an Australian Citizenship Certificate of Yin Thang Sang Dong filed on 28 October 2020 (Exhibit 5)
(f)A copy of an Australian Citizenship Certificate of Chrislun Wadamkhaung filed on 28 October 2020 (Exhibit 6)
(g)A letter of recommendation from Mr Dallas Tout filed on 11 December 2020 (Exhibit 7)
(h)A letter of recommendation from Rev. Redamwang filed on 11 December (Exhibit 8)
(i)Translated Statement of Yin Thang Sang Dong filed on 10 December 2021 (Exhibit 9).
The Tribunal had the benefit of oral evidence from the applicant and his wife, Ms Yin Thang Song Dong. Both witnesses answered questions from the Tribunal and were cross-examined by the respondent.
Following the hearing, an unsworn statement was received from Htiran Sandaung, the applicant’s sister in law.
The Respondent’s Submissions
The respondent’s case is that the Tribunal cannot be satisfied as to the applicant’s identity. He focusses on six aspects of the applicant’s claims which are cause for scepticism.
First, he submits that the Tribunal should not accept that the applicant did not possess any identity documents when he was living in Myanmar. The respondent contends that the applicant described documents held by his family and possible local government records (including records arising from the tax payments using rice) which could verify his identity. He had these documents which could have verified his identity prior to his departure from Myanmar.
Second, the respondent contends that the applicant’s claim that he departed his village without any identity documents should not be accepted because the applicant gave lengthy but vague evidence in relation to the circumstances surrounding his departure from his village. It is ‘inherently implausible’, the respondent submits, that the applicant would be able to undertake the journey he described without holding any form of identification – not even falsified documentation.
In those circumstances the respondent contends that the Tribunal cannot be satisfied by the applicant’s evidence in relation to his claimed life story in fleeing his village in Myanmar and in particular, his claims that he possessed no identity documents at the time.
The respondent sought to cast the burden on the applicant in the following terms:
(a)the applicant must satisfy the Tribunal that he can demonstrate that all avenues reasonably available to him to obtain documentary evidence in support of his identity have been exhausted; and
(b)if no documents are available after these reasonable efforts have been exhausted, the applicant must provide other forms of evidence on which the Tribunal may be satisfied as to the identity of the applicant.
The respondent highlights the lack of effort the applicant has put into obtaining documents which might be available.
Third, the respondent submits that the applicant failed to obtain evidence from family members who may be able to support:
(a)the applicant’s claims in relation to their familial connection;
(b)the applicant’s claims in relation to his, and his wife’s names (particularly from Zamiram Wadamkong who referred to the applicant’s wife as Mai Mai); and
(c)the applicant’s overall claims in relation to his identity.
Fourth, the applicant’s evidence (or other material submitted) contained numerous inconsistencies. In particular, inconsistencies concerning:
(a)A wedding certificate said to have been prepared to mark his wedding in 2003;
(b)The applicant’s name;
(c)When and in what order his parents died;
(d)Information about relatives living in Australia.[6]
[6] See RSFIC page 18
Fifth, the respondent urged the Tribunal to reject the further statements provided by Htiran Sandaung. Joe Redamwang and Dallas Tout – the latter two on the basis that they were merely character references and Htrian Sandaung on the basis that it provided little clarity in relation to the inconsistencies in the applicant’s life story.
Finally, the respondent contends that the Tribunal should reject the submission that because the applicant’s wife’s identity has been accepted and she has been granted citizenship, the applicant should be treated the same.
Applicant’s submissions
The applicant contends that the applicant’s identity is well established. He was born in 1979 in a small village near Puta-O in the north of Myanmar. These facts determine what country information should be applied when considering the applicant’s identity, his lack of documentation and what are ‘reasonable steps’ to procure documents in order to satisfy the identity requirements. He came from a village with no power or running water and engaged in subsistence farming. His parents were illiterate and spoke no Burmese. His birth was a home birth. When his parents died, death certificates were not issued. His mother tongue is Rawang, he is illiterate in English and may have some proficiency in Burmese. Any inconsistency in his evidence should be attributed to the difficulties in him speaking through an interpreter and the length and circumstances of the questioning. In particular the errors that he made in relation to the years of his parents’ death were the product of a mistranslation perhaps coupled with some confusion.
The applicant’s inability to obtain a family register or some predecessor was well explained in the applicant’s evidence. If such a document ever existed, it has now perished. There is no process by which it could be obtained. Consequently, any request for documents to be produced is unreasonable. Country information establishes that ethnic people (like the applicant) in regional and remote Myanmar do not to this day have identity documents and there is no evidence before the Tribunal to suggest that pre-computer documents can be sourced particularly from a state disrupted by decades of war.
When the applicant was asked to provide evidence of his marriage, he made contact with Myitikyina (a town near his home village) to see if enquiries could be made on his behalf with the church in his village. Direct communication with Tungli Tu (his home village) was not possible. The applicant gave candid evidence that he could not attest to the provenance of the marriage certificate though he thought the content were true and if a reproduction, it was likely to be a faithful copy of a genuine church record. The applicant was unable to say why the document was in English but the inference to be drawn is that it was a translated copy of a genuine church record.
It was never put to the applicant that he was not Hpung Zi Wadamkhaung. It was not put to him that he was not born in Tungli Tu in 1979. It was not put to him that he was not of Rawang ethnicity from Kachin State. It was not put to him that he was not married to Yin Thang Sang Dong. The applicant says that none of these things were put to him because it was not the respondent’s case that the applicant is not who he says he is.
Instead, the respondent’s case is that he must have had documents because without these he could not have access to utilities, access to higher education or crossed borders. The applicant contends that he never had identity documents in Myanmar for reasons which are well explained in available country information.
The applicant contends that the respondent did not put it to the applicant that he was anyone other than who he claims to be. The Minister’s case simply involves attacking the applicant based on his vulnerabilities.
The applicant contends that the only identified errors in a decade of accounting for his past is that the applicant on one occasion mixed up his parents’ years of death and once mixed up his years of schooling.
The applicant submits that his account is corroborated by his wife, that he is of good character and that he has given a credible and truthful account of his life and that his evidence was given under objectively adverse circumstances. In light of all the material before the Tribunal, the Tribunal should be satisfied as to the applicant’s identity.
The applicant contends that a kind of comity principle should be applied given that the applicant’s wife and son have been made citizens. In support of this idea reference is made to the Tribunal decision Ahmadi and Minister for Immigration and Border Protection [2018] AATA 4189.
In terms of how satisfaction should be reached the applicant submits:
(a)There is no requirement that the applicant provide identity documents in order to satisfy the identity requirements;
(b)He has given a comprehensive account of his identity, notwithstanding the paucity of documents from Myanmar;
(c)He has given a cogent explanation for the absence of identity documents.
It is submitted that despite having struggled with the language barrier and cultural differences, the applicant has provided cogent and credible evidence as to his name, place and date of birth, his ethnicity, his faith, his schooling, his occupation, his marriage and cumulatively, his life story. He does not have identity documents. He has explained why not. He has provided a truthful account of his identity and his wife has corroborated the claimed identity. The applicant’s wife has been granted Australian citizenship. The Minister has not provided any evidence that the applicant is not who he claims to be, nor that identity documents could be obtained.
In summary, the applicant contended:
(a)It is unreasonable for the respondent to insist that the applicant ever held identity documents in Myanmar;
(b)That the attacks on the applicant’s credibility targeted his vulnerabilities when in truth he has given a consistent and credible account of his life story from birth in Tungli Tu to his current life in Wagga Wagga;
(c)His life story is corroborated by his wife, his sister-in-law, his employer, his pastor, his settlement case worker and the local Alderman;
(d)It is fantastic to suggest that the applicant might ‘reasonably’ be able to obtain a record of his family’ grain taxes from 30 years ago.
(e)There was undue focus on the applicant’s journey from Myanmar to Malaysia – an issue that the applicant was ambushed by;
(f)The applicant’s account of his journey was plausible in any event;
(g)There was nothing implausible about the applicant fleeing Myanmar to Malaysia without documents;
(h)The criticism of the lack of effort to obtain documents was unfair;
(i)Any inconsistencies in versions given were not material to the applicant’s identity;
(j)The inconsistent use of names was explicable by interpretation errors which arise from interpretations going from Rawang to Burmese to English;
(k)Inconsistent evidence about the order and dates of the applicant’s parents’ deaths was a mistranslation and an error rectified at the first opportunity;
(l)Submissions concerning the marriage certificate are overzealous. Regardless of how the marriage certificate is weighed it is beyond doubt that the applicant and his wife were married in the village in November 2003;
(m)The use by the applicant of the name Sar Aung on Facebook goes nowhere;
(n)He admitted that he may have been mistaken about the circumstances in which he adopted the name;
(o)It was never put to the applicant that he was Sar Aung Wadamkhaung and it was not put to him that he was not Hpung Zi Wadamkhaung – this is because there is really no doubt that the applicant is Hpung Zi Wadamkhaung;
(p)Inconsistencies in the applicant’s wife’s answers were accountable as translation errors;
(q)The applicant is a person of good character;
(r)Information uniquely about the applicant’s wife’s identity should not be used in circumstances where the Minister is obviously satisfied as to the applicant’s wife’s identity;
(s)The applicant asks that the Tribunal assess his identity through the prism of his life story and evidence and set aside the original decision.
Consideration
I will deal first with the respondent’s submissions in order to clear away the matters which I do not accept.
First, given the country information which is available in relation to Myanmar, I do not consider it unusual or surprising that the applicant has not been able to secure documents which verify his identity. The problem of inadequate systems being in place for establishing identity has been identified as a problem in Myanmar and I am sure it is common-place for people from that country to flee without being able to lay their hands on proper means of identification.
Second, I do not consider it ‘inherently implausible’ that a person could travel across the border between Myanmar and Thailand, and Thailand and Malaysia without any documentation. On the applicant’s account, which, at least in these parts, had the ring of truth about it, he was assisted by people smugglers to cross those borders. Without direct evidence about how people smugglers operate, I certainly could not assume that they need documentation (genuine or otherwise) to get people across borders. Accordingly, in the applicant’s circumstances, I do not regard his lack of access to documentation, or his inability to devise a strategy for obtaining some, as providing a basis for querying the balance of the evidence.
It is however important to note that the total absence of official identity papers has the consequence that the credibility of the applicant and the other live witnesses is central to accepting the applicant’s identity and reaching the requisite state of satisfaction. There is no information which is truly independent of the applicant or close family members from which I can determine the applicant’s identity. If I am not satisfied that the applicant and the family members on whom he relies to support his version of events are reliable witnesses, then I cannot be satisfied as to the applicant’s identity.
At this point, I should also make clear that I am not approaching the question of credit looking for small inconsistencies. I accept that the applicant faces difficulties in presenting information because of language and cultural barriers. I accept that in filling out forms he may have omitted information because he did not think it was important or failed to check information he did write down. I accept that sometimes government forms are not completed by applicants with the same diligence a lawyer might bring to the task given their importance and in circumstances where multiple translations may be required in order to complete forms, the risks of error are significant. Accordingly I don’t regard small errors in the forms such as the applicant’s failure to re-disclose a deportation from Malaysia (which was relied upon by the delegate) as providing any persuasive reason for doubting the applicant’s truthfulness. Equally the fact that the applicant sometimes does not add Wadamkhaung as a surname when giving his name does not seem to me to be significant. Nor does it matter that his town’s name is sometimes spelt differently. These are not matters which in the context of these proceedings suggest that the applicant is not telling the truth.
There are however, four matters which persuade me that I should not rely on the applicant’s evidence as a foundation for reaching the required state of satisfaction as to his identity.
First, there is an issue about whether the applicant is an only child or has a sister whose son is a person called Sar Awng. There is an inconsistency between the applicant’s sworn evidence about his relationship with Sar Awng, the information he included in his statutory declaration, and the information which Sar Awng and his partner gave to the UN when they were seeking to come to Australia.
Second, the applicant has deployed a clearly bogus marriage certificate to support his identity claims following the natural justice letter sent by the Department on 2 January 2019.
Third, the applicant has failed to express consistently, the basic details of his life.
Fourth, he has given implausible evidence concerning how he came to be known as Sar Aung, and in what circumstances it is used.
Collectively these cause me to doubt the truthfulness of the applicant’s evidence and the evidence of his near relatives.
I will deal with each in turn.
Sworn evidence about relationship with Sar Awng
On 25 October 2019 the Department wrote to the applicant inviting him to comment on a range of concerns about his identity. The applicant was put squarely on notice that the Department had concerns about his identity because he claimed to be an only child in circumstances where the Department had information which indicated that he had a nephew in Australia named Sar Awng and that the applicant was Sar Awng’s maternal uncle.[7] These facts carry with them the implication that the applicant is not an only child but at the very least has a sister.
[7] Exhibit 1, T10, folio 191.
In response to this the applicant prepared and submitted a statutory declaration made on 29 November 2019. Relevantly the statutory declaration stated:
I have a few distant relatives in Australia. Sar Awng refers to me as uncle (and I call him nephew) but to the best of my knowledge, Sar Awng’s wife’s biological mother is my cousin’s sister.
The applicant apologised for any confusion caused.
The relationship was elaborated on in statement of 19 October 2020 where the applicant stated that ‘My relationship to Sar Awng is an in-law relationship. My connection to Sar Awng’s is through his wife May Ran.’[8]
[8] Exhibit 4, 82.
Both these statements are consistent and clear. The effect of them is that the applicant’s relationship to Sar Awng is slight and the connection comes through the applicant’s wife. Both statements were prepared in circumstances where the gravity of the situation was known and the need for honesty was clear.
Having regard to other documents which record information about the relationship between the applicant and Sar Awng, serious doubt is cast on the truthfulness of these answers.
In documents in evidence before the Tribunal, Sar Awng himself was asked about his relationship with the applicant on two occasions. The first was when he registered with the UNHCR. In Sar Awng’s Resettlement Registration Form filled out for the UNHCR in 2012 when he was also in Malaysia, he listed the applicant as his ‘Uncle’.[9]
[9] Exhibit 3, ST18, folio 377 and at folio 378 described him as his maternal Uncle – this was raised in RSFIC p 18.
Given the complexity of clan relationships in Myanmar, I accept that the word ‘uncle’ could comprehend a variety of relationships well beyond the narrow concept of a parent’s brother which it has in western culture. But in Sar Awng’s Application for an Offshore Humanitarian Visa, he was asked ‘Do any people included in this application have any other relatives residing in Australia?’ The answer given is ‘yes’. Noting that both Sar Awng and his wife are included in the application, what follows next is important. Following the answer ‘yes’ the applicants are required to give details including ‘details of the person in this application they are related to’. The applicant is listed and he is listed as being related to Sar Awng (as opposed to his wife) and the relationship is listed as ‘uncle’.[10]
[10] Exhibit 3 ST 18 folio 395
Further, in Sar Awng’s wife’s Personal Particulars for Assessment filled out in 2012 she specifically describes the applicant as her ‘husband’s uncle’.[11]
[11] Exhibit 3, ST18, folio 413.
Regardless of what the concept of ‘uncle’ might mean in that context, the documents indicate that the relational connection is between the applicant and Sar Awng, not with his wife.
Consequently, there is a clear inconsistency between the documents filled out by Sar Awng and the evidence given by the applicant. This issue was raised in the respondent’s SOFIC,[12] yet the applicant did not call evidence which would explain the inconsistency. Sar Awng was not called, the applicant simply re-iterated that it was his wife who was related to Sar Awng.
[12] RSOFIC p 18
Given this inconsistency, I have real doubts about the truthfulness of the applicant’s statements in his statutory declaration and in the statement given to the Tribunal. On its own it might not be sufficient to cast doubt on his credibility, but in combination with the other matters discussed below it certainly does. It raises a question as to whether the applicant truly was an only child as he claims.
Marriage Certificate
On 2 January 2019 the Department sent the applicant a letter seeking more information in support of his application for Conferral of Citizenship along with a blank ‘Personal Particulars for Assessment’ form.[13] On 20 January 2019 the applicant signed a completed form along with supporting documentation. The supporting documentation included a marriage certificate which on its face purported to be issued by the Church of Christ in the applicant’s home village Dong li tuq,[14] Putao, Kachin. The document purported to certify the marriage of the applicant to his wife on 2 November 2003. On its face it purports to be an original, contemporary record of the marriage. It is signed by the officiating minister in pen and dated 2 November 2003 in pen. It is also signed in pen by two other witnesses, one whom is the applicant’s father in law, Sang Dong Phung.
[13] Exhibit 1, T6.
[14] Although I note that this village’s name is anglicised in a variety of different ways in other documents including Tungli Tu, Dong li tuq, Tungli Tuq and Tung Lidu
I am satisfied on the basis of an examination of the document in the context of the other evidence available that the marriage certificate is not genuine.
On the applicant’s own evidence, his home state of Kachin, where he grew up, had no internet or computers.[15] The applicant’s own submissions confirm that even to this day his hometown remains off the grid.[16]
[15] Exhibit 4, folio 81.
[16] Submissions of the Applicant dated 12 February 2021.
The applicant agrees that when he was married he did not speak English, his wife did not speak English, the Minister who married them did not speak English and the language spoken in the village was not English.[17]
[17] Transcript of proceedings, 11 December 2020, page 125.
Despite this, the marriage certificate presented is written in English and clearly prepared on a computer. The names of the applicant and his wife, the date of the wedding and all of the other names on the document are printed in a script generated by a computer. If there were no computers in the state of Kachin at the time, it cannot be the case that this marriage certificate was prepared in the place and time suggested on its face.[18] Further, given that no-one participating in the ceremony spoke any English, it is improbable in the extreme that the marriage would be marked by preparing an English document which neither member of the couple could read, nor any of the witnesses to the event could understand.
[18] Exhibit 4, folio81.
The applicant described in his statutory declaration how he came to obtain this document.
It was difficult to contact my home village because it is remote. I had to telephone Myitkyina village and be transferred to my home village Puta-O. There I had to try and connect to the church and ask who could help me. I tried to contact my paternal uncle but I found out from the villagers that he and his family moved away. I do not know where he lives now. I do not have any immediate family members left in my home village.
My home village tried to help me find ID documents. The only document they could help me find was my marriage certificate from 2003 which was at the Church in my village.
I doubt that this accurately describes how the applicant came to be in possession of the document. Even if it is, because the document itself is so self-evidently bogus, for the applicant to submit such a document as a genuine document when he must have known that it was not, involves an attempt to deceive the Department which casts serious doubt on his credit.
In his oral evidence the applicant backed away from any knowledge of the provenance of the marriage certificate. When asked if the marriage certificate was a copy of the original, or if the original remained in the church, the applicant advised “I don’t know how they did it. They might still keep the original in church, they might produce a copy.” When asked if this was the exact document created in 2003 on the day of his wedding, the applicant advised “I don’t know but it’s most likely that.”[19]
[19] Transcript of proceedings, 29 October 2020, page 108.
I am satisfied that the applicant must have known that any document printed on a computer and written in English was not a genuine record of his wedding day and that he was seeking to support his claims with a document that he knew was not genuine. This satisfies me that the applicant is willing to engage in deception to support his claims.
Facts about the applicant’s life in Tung Li Tu
The applicant never provided much detail about his life in Tung Li Tu prior to his citizenship application. The key facts he was consistently asked about in his movement through the refugee system were the length of his education, his work history and his parents. The applicant told the UNHCR in 2010 that he had 7 years of education[20]. In his citizenship application he said he was educated from 1982 to 1985. In his statutory declaration he said that his schooling was from 1985 to 1995.
[20] Exhibit 1 T16 folio 281
In relation to his work history he told the UN that he had been a farmer from 1995 onwards. In his Offshore Visa Application he said he farmed ’From 00 to 05/06’.[21] In his citizenship application he returned to the claim that he farmed between 1995 and 2005.
[21] Exhibit 1, T16, folio 315.
These errors are substantial.
In his statutory declaration prepared on 19 November 2019 the applicant stated:
In about 1994, my father died and in about 1996 or 1997, my mother also died.[22]
[22] Exhibit 1 T12 folio 196
Under cross-examination the applicant gave different evidence, stating that his mother died first and that his father died some four or five years after her.[23] In re-examination the applicant was asked again about his parents’ deaths. The following exchange took place:
…You said that your mother passed-away around 1994, and your father passed away around 1998 or ’99. And I want to – my question is, is that correct?
Yes, I think there is gone, actually, opposite, maybe, because of the interpretations and different times. Actually, the things is – the correct one is my father passed away 1994. And my mother actually passed-away about 1998, or 1999.[24]
[23] Transcript of proceedings, 28 October 2020, page 35.
[24] Transcript of proceedings, 11 December 2021, page 131.
The answer given was clearly inconsistent with what was said by the applicant during cross-examination but was consistent with the applicant’s statutory declaration. I understood the applicant’s answer as suggesting that the reason for the inconsistency between the answer he had given earlier and his other evidence on that question, was that there had been an error in translation. Arrangements were then made to have the audio recording of the evidence re-played and re-translated.
When the recording of the evidence was played back to the interpreter, he confirmed the accuracy of the original interpretation.[25]
[25] Transcript of proceedings, 11 December 2021, page 165., note that the transcript is deficient in that it does not transcribe all of the material played to the translator..
While errors about dates of the death of a parent are more than understandable, to mix up the order of the death of your parents is in a very different category. On the applicant’s evidence he was an only child living in a bamboo hut with his parents and working the land. For him to forget which parent he spent an extended period living alone with in that hut is such an extraordinary lapse that I do not accept that it is the kind of mistake that can be made in a complex situation. The applicant’s attempt to mislead the Tribunal by suggesting that he had not been translated correctly casts further doubt on his honesty.
Having said that, I would still be prepared to accept that this was a lapse if it were the only one. But in the broader context of inconsistent recollections concerning his education and work history, it casts further doubt on the veracity of the evidence the applicant gave about his past.
Use of the name Sar Aung
In his statutory declaration of 29 November 2019 the applicant claimed, in relation to his use of the name Sar Aung as follows:
My name Sar Aung is a customary name in the Rawang community. It is custom for our Rawang people to give a new name to ourselves when we achieve something in life or when there is a big happy occasion. When I was given a chance to resettle in Australia 2011, I was so happy and I picked a name for myself. “Sar Aung” means “New Victory” and is a very common name for Rawang people.
I am satisfied that statement is false.
The applicant was interviewed by the UNHCR on 6 July 2010 and included ‘Sar Aung’ along with ‘Wadamkhaung’ as names on the form.[26] I am satisfied that the applicant was identifying ‘Sar Aung’ as one of the names he went by prior to having any knowledge of whether he was going to Australia. I am satisfied that the name Sar Aung has greater significance to the applicant than he has been prepared to admit to the Tribunal.
[26] ST16, folio 279.
Conclusion
As noted at the outset, the applicant has presented a life story which is immune from documentary verification. The village in which he spent time is so remote from civilisation, so primitive in its infrastructure and so devoid of living relatives that nothing can be salvaged from the first thirty years of his life to confirm his presence there.
In these unusual circumstances the Tribunal is entirely dependent upon acceptance of the applicant’s recounting of his life story as corroborated by close relatives to reach the statutorily mandated level of satisfaction about his identity.
There are however significant reasons for doubting that the applicant has been honest with the Department and this Tribunal about his background. I am satisfied that in the course of attempting to establish his identity the applicant:
(a)has been dishonest in his claims about how he came to be known as Sar Aung;
(b)has submitted a marriage certificate to the Department to bolster his claims which he knew was not genuine;
(c)has not been able to consistently recount very basic details about his early life and family structure; and
(d)has provided family details to the Department and the Tribunal which are inconsistent with details provided by other family members to relevant authorities.
While individually each of the matters I have identified might be disregarded as explicable as the product of errors in interpretation or cultural misunderstandings, but collectively they cast sufficient doubt on the evidence given by the applicant that I am not satisfied that what I have been told accurately describes the applicant’s life story.
I reach this conclusion notwithstanding that the applicant’s version of his early life is corroborated by the evidence of his wife, Ms San Dong. In relation to Ms San Dong there are reasons to approach her evidence with caution. As the applicant’s wife and mother of his children she has an incentive to support the claims the applicant has made in the course of his citizenship application.
There were also some specific matters which cast doubt on the frankness of her evidence.
Ms San Dong gave evidence which read as a whole supported the conclusion that she was aware of the marriage certificate relied on by the applicant and was willing to give evidence which was supportive of its genuineness.[27] Given my finding that the document was self-evidently not genuine, this casts doubt on the reliability of Ms San Dong’s evidence.
[27] Transcript p 147-148
Further, her evidence about the applicant’s name ‘Sar Aung’ seems particularly disingenuous. In the statement she provided to the Tribunal and adopted as her evidence, she limited her statements concerning the applicant’s use of the name Sar Aung to the following:
I knew my husband was on Facebook as “Sar Aung Wadamkhaung”. We did not know it would be such a problem to have a Facebook name.
As it is clear from UNHCR documents that the applicant has been known as Sar Aung for a long period and in contexts[28] other than social media, Ms San Dong’s evidence downplaying the significance of the name strongly suggest a lack of candour with the Tribunal and a willingness to engage in misleading behaviour calculated to be supportive of her husband’s claims. For these reasons I do not place much weight on the evidence of Ms San Dong.
[28] ST 16 folio 279
After the hearing, the applicant filed an unsworn statement from the applicant’s sister in law, Htiran Dandaung which sought to corroborate some of the facts relating to the applicant’s wedding. A brief unsworn statement, delivered at the eleventh hour, is far from the corroboration necessary to restore confidence in the veracity of the document the applicant claimed was his marriage certificate or to establish the facts set out therein. I placed little weight on the evidence.
In these circumstances I am not satisfied as to the identify of the applicant. I am not satisfied that I have reliable evidence before me which would enable me to conclude that the applicant spent the first twenty nine years of his life farming in Tung li tuq as the only child of Ah Phong Wadamkhaung and Ah Chang Menung and ultimately as the husband of Ms San Dong.
The applicant says that it has never been squarely put to the applicant that he is not Hpung Wadamkhaung who was born in Tungli tuq and lived there until he fled in 2006.
While such an exercise may be necessary in the context of civil litigation where a court will be invited to disbelieve a witness, such a process is not necessary in this Tribunal in this particular statutory context. The Act makes it clear that I am prohibited from approving a person becoming an Australia citizen unless I am satisfied of the identity of the person. That inevitably casts a burden on the applicant of assembling sufficient evidence to satisfy me of their identity. I have serous doubts about the evidence of the applicant in particular and the weak attempts to corroborate his version of events. I am unsure where the truth lies, but I can positively say that I am not satisfied that what I have been told about the applicant’s life prior to his emergence in Malaysia is the truth. In those circumstances have no alternative but to affirm the decision under review.
1. I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan.
.....................................[sgd] ..................................
Associate
Dated: 27 August 2021
Date(s) of hearing:
28 and 29 October 2020, 11 December 2020
Date final submissions received
12 February 2021
Solicitors for the Applicant:
Ms Margaret McCabe, Legal Aid ACT
Solicitors for Respondent:
Ms Jiadi Liang, Clayton Utz
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