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

YGVD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 368 (3 March 2021)
Division:GENERAL DIVISION
File Number(s): 2019/7857
Re:YGVD
APPLICANT

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

DECISION
Tribunal:Ms A E Burke AO, Member
Date:3 March 2021
Place:Melbourne

The Tribunal sets aside the decision of the delegate dated 15 November 2019, refusing the Applicant’s application for Australian citizenship by conferral and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to
s 43(1)(c)(ii) of the AAT Act, that it is satisfied of the Applicant’s identity.
.............[]...........................................................
Ms A E Burke AO, Member
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – Rohingya national – whether satisfied of identity of applicant –whether documentation was sufficient – whether made genuine attempt to obtain documentation from Myanmar - consideration of DFAT Country Information Report – whether satisfied of life story - whether the application for citizenship should be approved – life story remained consistent – Tribunal satisfied of identity – decision under review set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Regulations 2007 (Cth)
Migration Act 1958 (Cth)
Cases
Ater and Minister for Home Affairs [2018] AATA 4677
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579
Secondary Materials
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)
Attorney General’s Department National Identity Proofing Guidelines
Department of Immigration and Border Protection, Australian Citizenship [Policy Statement] (27 November 2020)
Department of Immigration and Border Protection, ‘Rohingya: Issues relating to statelessness (Myanmar, Bangladesh and Malaysia)’ – Thematic Briefing – Country of Origin Information Services Section, effective from 14 July 2017)
‘DFAT Country Information Report Myanmar’ (Country Information Document, Department of Foreign Affairs and Trade, 18 April 2019)

REASONS FOR DECISION
Ms A E Burke AO, Member
3 March 2021

The Applicant is a 38-year-old stateless Rohingya Muslim, born in the Rakhine State of Myanmar. On 9 November 2009, the Applicant sought asylum in Australia arriving by boat on Christmas Island, and was subsequently granted a Protection visa (subclass 866) on
6 September 2011.
Section 501K of the Migration Act 1958 (Cth) provides that if a person applies to the Administrative Appeals Tribunal for review in the person’s capacity as, inter alia, a person who applied for a protection visa, the Tribunal must not publish any information which may identify the person or any relative or other dependant of the person. As the Applicant holds a protection visa, the Tribunal has decided it is appropriate to refer to the Applicant as “the Applicant” throughout this decision.
On 7 October 2015, the Applicant lodged an application for Australian citizenship by conferral and on 19 February 2019, the Department sent a request for further information.
On 25 September 2019, the Department sent a letter inviting the Applicant to comment on adverse information regarding his application for citizenship by conferral. The Delegate stated:
Summary of identity concerns:
Before your application for Australian Citizenship may be approved I must be satisfied that your identity has been met. Based on the information listed above, you appear to have provided conflicting identity details to the Department regarding your stated name and date of birth. You also appear to have made conflicting and inconsistent statements to the Department concerning your family structure. These matters raise further serious doubts about your identity. As it appears your name and family structure have not been consistently represented, it follows that your name and date of birth may not have been satisfactorily established for the purpose of meeting requirements for Australian citizenship as required under section 24(3) of the Australian Citizenship Act 2007.
On 15 November 2019, a delegate of the Minister refused the Applicant’s application for Australian citizenship under the Australia Citizenship Act 2007 (Cth) (the Act), as the Department was prohibited from approving the application as the Delegate was unable to be satisfied of the Applicant’s identity. The delegate stated:
You have provided no official record of your birth to the Department. You have supplied the Department with a variety of identities at different times during the course of your interactions with the Department. You have varyingly provided or had your identity recorded as….., ……, ……, and …….. It is also noted that the Student Identity Cards provided by you record your date of birth as ……..
Based on the available information, you appear to maintain a number of distinctly different identities. The evidence before me indicates that you have been selective in which identity information you have used and which information you have declared in relation to your interactions with the Department at different times.
As your identity has not been consistently represented, it follows that your identity has not been satisfactorily established for the purpose of meeting requirements for Australian citizenship as required under section 24(3) of the Australian Citizenship Act 2007.
………….
While it is plausible that you may have had some small degree of error while supplying information across multiple documents, and over a number of years; the core issue of multiple differences in the data of individuals remains unresolved by your response. You have supplied the Department with multiple names and dates of birth for each member of your family on numerous occasions. You have failed at different times to record certain members of your family on different documents submitted to the Department. You have provided a stated reason for your primary family document being unable to be translated, which is not supported by the translator who examined the document.
You have made conflicting and inconsistent statements to the Department concerning your family structure. Based on the information supplied by you to the Department, I cannot be satisfied that your family structure has been consistently represented. This in turn raises serious doubts about your identity, and how it relates to the family structure you have presented to the Department.
As your family structure has not been consistently represented, it follows that support for your identity has not been satisfactorily established for the purpose of meeting requirements for Australian citizenship as required under section 24(3) of the Australian Citizenship Act 2007.
………………
As your name and family structure have not been consistently represented, and clearly addressed, it follows that your name and date of birth have not been satisfactorily established for the purpose of meeting requirements for Australian citizenship as required under section 24(3) of the Australian Citizenship Act 2007.
On 25 November 2019, the Applicant lodged an application for review of the Delegate’s decision with the Administrative Appeals Tribunal stating, “I would like to have the decision reviewed because I disagree with it”.
At the hearing, the Applicant was self-represented and assisted by an interpreter in the Rohingya language. Ms Lauren Hargrave, solicitor of Clayton Utz Lawyers, appeared on behalf of the Respondent. At the conclusion of the hearing, additional material was requested from the Applicant and the Respondent.
ISSUE FOR THE TRIBUNAL
The issue is whether the Tribunal is satisfied of the Applicant’s identity to fulfil the requirements of s 24(3) of the Act.
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)       is aged 18 or over at the time the person made the application; and
(b)      is a permanent resident:
(i)       at the time the person made the application; and
(ii)      at the time of the Minister’s decision on the application; and
(c)      satisfies the general residence requirement (see section 22) or the    special residence requirement (see section 22A or 22B), or satisfies   the defence service requirement (see section 23), at the time the   person made the application; and
(d)      understands the nature of an application under subsection (1); and
(e)      possesses a basic knowledge of the English language; and
(f)        has an adequate knowledge of Australia and of the responsibilities    and privileges of Australian citizenship; and
(g)       is likely to reside, or to continue to reside, in Australia or to maintain    a close and continuing association with Australia if the application   were to be approved; and
(h)      is of good character at the time of the Minister’s decision on the    application.
Section 24 of the Act provides, in part:
Minister's decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
…
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
....
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Section 25 of the Act provides, in part:
Minister may cancel approval
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a)      the person has not become an Australian citizen under section 28;   and
(b)      either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a)      the person is covered by subsection 21(2), (3) or (4); and
(b)      the Minister is satisfied that, at the time the Minister proposes to                   cancel the approval, the person is:
(i)       not a permanent resident; or
(ii)       not likely to reside, or to continue to reside, in Australia or to               maintain a close and continuing association with Australia;   or
(iii)      not of good character.
The stated role of the Australian Citizenship Policy (the Policy) is to support the Act by providing guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (Cth). Additionally, the Citizenship Procedural Instruction 16 (CPI 16), published and used by the Department in relation to decision-making under the Citizenship Act, also contains relevant guidance about assessing an individual's identity, specifically for the purposes of determining whether the prohibition in section 24(3) of the Citizenship Act applies.
When considering whether a decision maker is satisfied of an Applicant's identity, the three pillars of identity are set out in CPI 16 at 4.4 namely:
(a) Biometrics - personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies;

(b) Documents - which may contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information. CPI 16 relevantly states that "only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features"; and

(c) Life story - being the narrative of the events that happened to them from birth to present, which may include "descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence".
The CPI further provides that:
Officers should not rely on a single pillar to establish a person’s identity.
Considering a single pillar in isolation is generally inadequate for providing a
reliable basis on which to establish a person’s identity. In order to comprehensively
test and evaluate a person’s claims with regard to their identity, decision-makers
should consider each pillar.
In most cases the consideration of the three pillars is embedded in the identity
assessment process. The citizenship applicant is likely to be well documented,
information provided to the Department will have remained consistent over a long
period of time, and no inconsistencies or concerns will have been identified.
Through their reliability and comprehensiveness, identity documents testify to
important events in the applicant’s life story. Through personal identifiers contained
in identity documents the applicant’s biometrics held on departmental records are
matched and confirmed.
…
4.12 How do I assess a person’s identity – an evidence based approach
In order to make an informed assessment of a person’s identity, officers must seek
to establish a person’s identity from birth using an evidence-based approach. 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.
The way in which officers should approach the concept of assessing a person’s
identity from birth is to create an identity timeline, thus creating a complete picture
of the person’s identity from birth to present. The objective is to 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. The three pillars are
the methodology for establishing a person’s identity, and officers must turn their
mind to the individual characteristics in order to piece together a person’s identity
timeline and create an ‘identity picture’.
…
4.15 Assessing pillar three – life story
When assessing a person’s life story in the context of a citizenship application,
officers should seek to create a complete identity ‘picture’ of the person from birth.
This is not done by asking a person to recite their life story in interview. Instead, a
practical way in which to begin an assessment of a person’s identity, while at the
same time considering their life story, is to consider their identity timeline.
…
There may be cases where one pillar may be given more weight than the others.
For example, cases where the applicant claims they are stateless and therefore
undocumented. In such cases, the available pillar (for example, life story) may
become more significant when assessing the person’s identity. There is also likely
to be a heightened need to explore further material. This may include, but is not
limited to researching credible open source country information. This research will
enable the officer to test and verify whether the applicant’s claims, relevant to
aspects of their life story, are consistent with the situation in a particular country.
Credible country information will support and add weight to a decision, and can be
cited in the decision record.
Example - undocumented arrival: potential avenues of research where one
pillar may be given more weight than the others.
A citizenship application is received from a person claiming: they are stateless,
undocumented, and are unable to provide any evidence of their identity prior to
arriving in Australia as an Illegal Maritime Arrival (IMA); they exited their country of
residence on a bogus travel document; and they previously held an identity card
issued to stateless people by the Government of the country they resided in. They
do not have the card now.
Issues
· No documentary evidence of the person’s identity from birth to arrival in
Australia
· No biometrics which can be used for comparison purposes.
Potential action
In order to test the veracity of the above claims and make an informed assessment,
it is necessary for the officer to research country information. This research will
provide an informed basis on which to assess whether the claims are factually
accurate or plausible, and align with country processes.
….
The officer must then consider, assess, and weigh the country information and
evidence provided by the applicant, ensure that natural justice requirements have
been met, and make a determination whether they are satisfied of the applicant’s
identity. The decision must show the link between the law, facts, clearly explain the
reasons they considered and the weight given to the evidence that ultimately led
them to reaching their decision.
EVIDENCE
The evidence before the Tribunal included two sets of documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), referred to as the “T documents” and the “Supplementary T documents”. The Applicant lodged a witness statement, additional identity documents and other supporting documentation.
The Applicant provided the following documentary evidence to establish his identity prior to his arrival in Australia:
a)    a certified untranslated copy of an identified document from Malaysia;
b)    a certified copy of a letter from United Nations High Commissioner for Refugees (UNHCR) dated 11 June 2009 which certifies that the Applicant a national of Myanmar is registered with UNHCR. In light of the ongoing events in Myanmar, … as a person of concern under temporary protection in Indonesia;
c)    three translated student cards dated between 1995-2001;
d)    an old household registration list (from the Maungdaw Government of the Union of Myanmar Immigration and Population Census) translated by the Applicant;
e)    a temporary (untranslated) identification card (white card);
f)     a current household registration census;
g)    a certified untranslated copy of the Applicant's Myanmar driver's licence;
h)    an untranslated copy of his mother’s identity card (white card);
i)   an untranslated copy of his father’s identity card (white card); and
j)   a translated copy of a household inspection card from 1994 to 2018 listings the male and female members of the household.
On the 5 October 2015, the Applicant wrote to the Department of Immigration, advising the following:
… in response to the request that was given to me by the Department of Immigration and Border Protection dated 29 September 2015 whereby I was asked to provide my birth certificate and any other supporting documents.
I write to advise that I am unable to provide any documents requested and to provide the reasons why I am unable to do so.
Due to my nationality Rohingya and being persecuted in the world and being a stateless person, I have never possessed any form of identity or identifying documentation. At the time of my birth, which was in … Rakhine in Burman there was no birth certificates issued and throughout my life I was not able to receive any other formal identifying documents to support who I am.
On 7 March 2019, the Applicant emailed additional identity documents to the Department of Immigration, advising the following:
I arrived in Australia as Asylum Seeker on 9th November 2019.
My permanent protection visa granted in Australia on 6th September 2011.
I lodged Citizenship application on 2015.
I lodged Citizenship application on 2017.
I lodged Citizenship application on 2019.
I was studied in Myanmar and I had student’s Cards.
I was born on …in … village of …. township, Rakhine State in Myanmar.
There are attachments my personal three Student’s cars and one temporary withe card that provided from Burmese government authority, census family list provided by Burmese (Myanmar) authority.
The Burmese authorities discriminated, persecuted on me and my family in Myanmar (Burma)
I am supporting to vulnerable Rohingya in Victoria Australia and I spend most of the time for Our all Rohingya community in Australia because uneducated in Burma.

On 25 March 2019, the Applicant emailed additional identity documents to the Department of Immigration, advising the following:
My name is YGVD from Rohingya back ground and I was born on…. in Village of….), township of ….in (Rakhine state or Arakan state) in (Myanmar or Burma).
I was be most persecuted in the world and I was separated from my parents, family in 2002 because when I was young and students in Myanmar and there were discrimination, harassment and intimidated to me and my family by Myanmar military in Rakhine state because my religion is Muslim in the Buddha’s country of Myanmar and then I absconded to capital city in Yangon from 2002 to 2004 for save my life and I scared
Burmese authorities there, because I doesn’t have national identification card from Myanmar that’s the Burmese government denied for vulnerable Rohingya Citizenship but I was not save there too anywhere in Burma so I didn’t have passport to travel to overseas for save my life.
I Fled to Malaysia without passport on 4th June 2004 until 2008 and then fled to Indonesia without passport too, so I was arrested by Indonesian police in 2008 and I was detention until 2009 when I Released from Indonesia detention so I tried to travel by fishing boat to Australia again and I was second time that I had successes on 9th November 2009 arrived in Australia. I had got permanent residency on 6th September 2011 after four years in 2015 and then I lodged application for Australian citizenship and I am still on waiting, I didn’t got response about my citizenship.
First able denied my Myanmar Citizenship by Burmese government and I was suffered many decades and then also currently denying Australian Citizenship.
Where is the human rights organisation in the world?and who is justice.
(Errors in original)
On 18 October 2019, the Applicant wrote to the Department of Immigration, advising the following:
“I have provided details my family composition, parents and siblings names and date of births of family members to the department on a number of previous occasions was distinctly different because my family stateless Rohingya they did not have official document with their names and date of birth that’s way I estimated them.
I have four brothers including me five, one sister, Mother, father and verbally knows their names.
On 2014 my father … was deceased in village of) may be with his diabetes because there is no doctors for medical treatment cure to Rohingyas and no allowed to access the public hospitals in Rakhine state of Myanmar.
1. Father name: born estimated 1956 or (1950 Temporary Identification no, 192980), Death in Rakhine state of Myanmar.
2. Mother name: born estimated 1964 or (1966 Temporary Identification no, 192983), living in Rakhine state of Myanmar.
3. Elder brother: name: born estimated 1981, with his family living in Mecca, Saudi Arabia.
4. Young Brother name, born estimated 1985, with his family living in Mecca, Saudi Arabia.
5. Young Brother name: born estimated 1986, with his family living in Refugee camp of Bangladesh since October 2017.
6. Young Brother name:, born estimated 1987, Rakhine state of Myanmar.
7. Young Sister name: born estimated 1984, with her family living in Refugee camp of Bangladesh, since October 2017.
I have old House hold registration census paper for my family from Myanmar which has been sent me image my young brother’s imo but it’s illegible faint blurry because Myanmar government did not renew house hold census paper for my family and it is hard difficult translator for translate from Burmese to English.”
(Errors in original)
The Applicant advised the Tribunal that he was born in Rakhine state Burman, living there until 2002 and describing his life:
So in Rakhine state, while I was a student, the military personnel used to come to our village and would ask us to carry heavy stuff. I was young and unable to do what they would ask me to do, I would be beaten up and grounded. After I was beaten up, everyone had left me. People from the neighbouring village came and rescued me and took me to my parents. I was taken to a doctor and was told that I had sustained injuries on my head, but that it would go away over time. Since then, I have concluded that if I continued to live in that place, I would have been killed. It was I was Rohingya and many people had been killed in the same way. I left my family and siblings and moved on with my life for my safety. At the time of my leaving, I did not have any identity documents with me. From there, I was constantly looking for shelters. I couldn’t find any safe places, and then I entered Rangoon and lived with my maternal grandmother. Everyone had citizenship, I didn’t and I was in a lot of fear. I ended up in Thailand and then Malaysia.
Under cross examination, the Applicant provided the following explanation for the numerous inconsistencies he had provided:
R: Did you say your father was approx. 54?
A: yes
R: YGVD, what is your fathers DOB?
A: I don’t actually know his DOB.
R: YGVD do you agree that you have provided different dates regarding your fathers DOB?
A: yes because I was unsure and not aware.
R: Do you agree you have made other incorrect statements regarding other family members DOB? Such as your mother and brothers?
A: That is correct. All I did was try to make my best case.
R: Have you tried to find out your family members DOB?
A: Yes, I have made several attempts. What happened was I received a list that had their records on it. The format is that it is too old and very vague. It is not clear enough to try and get it updated. I knew that the translator would not find anything to translate.
R: Your attempt to clarify this is the use of the household registration list?
A: Yes
R: Have you thought to have a statement from your family members provided?
A: Well no, I have had my name removed from the family listing.
R: Okay, so you have made your best guess?
A: Yes.
R: Is it also correct that you have not been able to provide any evidence to support that statement?
A: Yes I have tried my best.
R: Do you have any other family members that have moved to Australia?
A: Family members no, but I have friends and people from my neighbouring village and people who knew about me.
R: have you provided a supporting statement from any of these people?
A: When I was made aware of the fact that there was a difference, what I did was provided telephone number of a friend of mine who lived very close to where I did in my village. I provided his number and name and he was brought to Australia from Indonesia. He is now a citizen. I am not sure if that person has been contacted.
R: Who did you provide the information to?
A: I sent a text message to the AAT.
A: I provided student cards.
R: Who interpreted these documents?
A: A Burmese interpreter?
M: A registered interpreter?
A: Yes. He lives in Melbourne
R: Did you provide this to the Department before you commenced your proceedings?
A: I gave it to the department.
R: Do you have any photographs of your life before you arrived in Australia?
A: No I do not.
A statement from a friend of the Applicant dated 13 November 2020 advises the following in respect of the applicant’s identity and life story:
I, …. am making the following statement as a reference for the Applicant. Growing up in Myanmar I knew the applicant only as … and he knew me only as….. He lived a kilometer from my house. In between our houses was a Mosque and a Madrasa (Arabic School). We studied together in the Madrasa every day, except Fridays. The applicant’s uncle was our Arabic teacher and his uncle’s wife is also my cousin. We would often play volleyball, soccer and other cultural sports in front of the Mosque. However, we did not study together at school.
I left Myanmar in 2001. Since leaving Myanmar I did not have any contact with the applicant until we met again briefly in Malaysia. The applicant came to Australia by boat. I arrived in Australia in 2011 under a Humanitarian Settlement Service Visa with my family. The applicant was residing in a different state to me, but he visited me and my family in Brisbane a few years later. Since then we have kept in contact as the applicant now lives in Melbourne.
CONTENTIONS
Applicant
The Applicant fundamentally argued he had first been persecuted by the Burmese authorities who discriminate and persecute all Rohingya’s denying them any rights and refusing to recognise them as citizens of Myanmar (Burma). That he and his family had been persecuted, were stateless and he had provided as much documentation as he could obtain given the difficult situation he and his family faced.
The Applicant argued that secondly, he was now being persecuted by the Australian government who were denying him the right to become an Australian citizen. That the process had been taking an exorbitant amount of time as he had arrived in Australia on

9 November 2009, he was granted permanent residency on 6 September 2011 after four years. In 2015, he had lodged his application for Australian citizenship and was still awaiting an outcome. That for a period of many years he had no response about his citizenship application. That his lack of citizenship is causing him great distress as he has been unable to apply for many positions, been unable to seek a wife or to finally feel truly secure.
The Applicant advised he had provided a consistent and honest response about his identity since his arrival as an asylum seeker in 2009 and should not be denied the right to become a citizen as he was a persecuted stateless Rohingyan. The Applicant asked where can he get justice; to be given an identity/citizenship; to no longer be stateless; unrecognised by any country and living in a precarious situation.
Respondent
The Respondent argued the Tribunal must be positively satisfied as to the Applicant's identity because establishing identity is a "critical starting point" for access to government services and benefits, and in the citizenship context, may lead to the conferral of the rights and privileges of citizenship, including an Australian passport referring the Tribunal to the matter of Beyan and Minister for Immigration and Border Protection [2015] AATA 256. The Respondent contended that previous decisions of the Tribunal have observed that the importance and significance of the conferral of citizenship, together with the wording of the provision in s 24(3) of the Act, make it essential that the Tribunal is reasonably satisfied of identity because of the consequences that flow reefing particularly to the matter Sinnathamby and Minister for Immigration and Border Protection [2018] AATA 2579.
Fundamentally, the Respondent contended that the Tribunal cannot be satisfied of the Applicant's identity as the Applicant had provided insufficient documentation to the Department, as well as some inconsistent information and his evidence did not present a cohesive life story that is corroborated by compelling and reliable documentary evidence.
The Respondent contended that in accordance with the CPI, the onus is on the Applicant to provide information or evidence to support his identity and in this instance, the Applicant has been unable to provide sufficient information and evidence for the Tribunal to be satisfied of his identity. In particular, the Applicant lacks identification documents that pre-date his arrival in Australia and corroborate his claims about his date of birth, place of birth, early life and family composition.
The Respondent argued the Applicant's evidence was only sufficient for the Tribunal to be satisfied of one pillar of identity being his life story since his arrival in Australia in 2010. The Respondent contended that this was insufficient evidence on which the Tribunal could be positively satisfied of the Applicant's identity. As such, the Respondent argued the Tribunal must accordingly refuse the Applicant becoming an Australian citizen, pursuant to section 24(3) of the Citizenship Act.
The Respondent contended the Applicant had not provided any translated primary source documentation which relates to his identity prior to his arrival in Australia. The Respondent argued the documentation provided by the Applicant including:
a)    the unidentified document from Malaysia;
b)    the temporary identification card which could not be translated;
c)    the household registration list;
d)    the temporary identification card;
e)    the driver's licence; and
f)     further untranslated documents
should be given no weight as these documents have not been translated by a qualified translator. The Respondent argued that throughout the review process, the Applicant had been provided with multiple opportunities to provide translated copies of these documents.
The Respondent contended that the current household registration census provided by the Applicant did not assist the Applicant in establishing his identity as it did not mention him nor had he satisfactorily explaining how the document assisted in establishing his identity. The Respondent contended that as the current household registration census has no clear link to the Applicant's identity, therefore no weight should be given to this document.
The Respondent contended limited weight should be given to the letter from UNHRC as it was not a primary source document relating to the Applicant's identity at birth. Instead they argued the document issued shortly before the Applicant's arrival in Australia had been issued for the sole purpose of ensuring temporary protection, the document clearly states it is not a travel document and therefore the Respondent contended it was not an official identity document. The Respondent contended that as the UNHCR letter relates to the short-term protection of the Applicant in Indonesia, it should be afforded the same weight as temporary protection documentation in Australia.
In relation to the first document, being the undated document titled YGVD-Family white cards', this document contains a number of photos of documents which are asserted to be photographs of the Applicant's family’s white cards. The document ‘YGVD-Family white cards' also contains some alleged translations of the photos of documents as written on top of some of the pages. The Respondent contends that the Tribunal should not give significant weight to these photographs of documents, as:
(a) the documents are not in English and have not been completely translated, meaning that it is impossible for the Tribunal and the Respondent to understand what these documents state; and
(b) although some of the photographs do have some translations, these are not certified translations but appear to have been translated by the Applicant. The Respondent contends that the Tribunal cannot be satisfied of the reliability of these translations in circumstances where this translation has not been certified.
In the event that that the Tribunal does afford weight to the photos contained in the document YGVD-Family white cards', the Respondent contends that the weight given to the document should be limited as:
(a) a number of the documents are handwritten, the Applicant has not explained how he now has obtained these documents in circumstances where he has previously asserted he has no such documents, and the Applicant has not provided any evidence to establish that these are valid or legitimate documents. The Respondent therefore contends that these documents might not be legitimate; and
(b) only one of the photos contained in the document 'YGVD- Family white cards' is allegedly relates to the Applicant. It is unclear how the other documents relate to establishing documentary proof of the Applicant's identity.
The Respondent argued that in circumstances where there was no documentation, the application must provide a "cogent and acceptable explanation as to why no such evidence has been provided”[1]and must demonstrate that he has made a genuine attempt to obtain identity documents from his time prior to arriving in Australia. The Respondent argued the Applicant had not provided a cogent explanation for why no such evidence exists nor had he provide any evidence of attempts he has made to obtain identity documents. The Respondent directed the Tribunal to the matter of Ater and Minister for Home Affairs, where the Member stated that "it is not sufficient for the Applicant merely to state that such documents are not able to be produced in order to satisfy the Tribunal".
The Respondent argued it therefore follows that the Tribunal cannot be satisfied that the Applicant has availed himself of opportunities to secure evidence of identity which might reasonably expect to exist.
The Respondent argued the Applicant's life story could not be discerned from the documents and evidence he had provided. The Respondent argued the documents should be given limited weight:
·as it was unclear whether statements had been written by the Applicant or an individual with the same name;
·the declarations do not include particular addresses, employers, positions, or additional details about the Applicant, how the people making the statements knew him and were from people who have known the Applicant since his arrival in Australia; and
·these declarations are evidence only that the Applicant has been using the same identity in the local community since his arrival and are insufficient to enable the Tribunal to properly make conclusions about the Applicant's identity.
The Respondent contented that the Tribunal could not be satisfied of the Applicant’s identity as he had made a number of inconsistent statements about his family composition to the Department between 2009 -2019. The Respondent argued that during the period between 2009-2019, the Applicant had made inconsistent statements in relation to the:
a)date of birth of his father;
b)name and date of birth of his mother;
c)name, date of birth, and inclusion in his family of his brother (MJ);
d)name, date of birth, and inclusion in his family of his brother (AJ);
e)name, date of birth, and inclusion in his family of his brother (RM);
f)name, date of birth, and inclusion in his family of his brother (F);
g)name, date of birth, and inclusion in his family of his brother (EM);
h)inclusion in his family of his sister (F); in numerous documents and not in others
i)inclusion in his family of his sister (NP); in numerous documents and not in others
j)inclusion in his family of his sister (S); in numerous documents and not in others
k)at various times he has also omitted family members from the recount of his life story:
(i)his brother (MJ)
(ii)his brother (AJ)
(iii)his brother (RM)
(iv)his brother (F)
(v)his brother (EM)
The Respondent contended the Applicant’s explanation that he guessed his family members' names and dates of birth because his family are stateless Rohingya with no official documents was insufficient, particularly in circumstances where the Applicant has provided no supporting statements or evidence of attempts to verify this assertion.
Fundamentally, the Respondent contended that in circumstances where the Applicant has made numerous inconsistent statements (arguing he had done so on at least 10 occasions) with limited explanations, the Tribunal could not be satisfied of his identity. The Respondent contended that the evidence provided was not sufficient for the Tribunal to be satisfied of the Applicant’s life story and overall identity prior to his arrival in Australia, particularly in the absence of other documentary evidence in relation to identity.
The Respondent argued that the Applicant had not provided any biometric information (such as photographs) that pre-date his arrival in Australia to satisfy this pillar of identity.
The Respondent in its final written submission acknowledged that the statement of “R” supports the Applicant's life story that he was born and grew up in Myanmar. However, the Respondent contended that the Tribunal should give limited weight to this statement as it was not a statutory declaration, meaning there is a limited basis to confirm the veracity of the document.

Further, the Respondent notes that this witness statement only goes to supporting the Applicant's statements that he was born in Myanmar, travelled to Australia and travelled through Malaysia. This witness statement does not establish the Applicant's identity before his arrival in Australia and in particular does not provide support for a number of key points of the Applicant's life story. In particular:
a.    it does not state that R knew the Applicant's full name before his arrival to Australia;
b.    it does not state that r knows the Applicant's date of birth;
c.     it does not state R knows the Applicant's family composition;
d.    it does not state r knows where the Applicant attended school; and
e.    it does not state that R shares the belief that the Applicant cannot approach the embassy or the authorities for further documents due to fear of persecution.
The Respondent contended that the documentation provided by the Applicant should be afforded little weight, as they have not been certified or translated. Therefore, the Respondent submitted that the Applicants identity had not been established by his student card and even if this document was accepted by the Tribunal it was not sufficient to prove the applicant’s identity in his country at the time of his birth. The Respondent contended that it was highly improbable that only one document could have been provided in this lengthy period, since the Applicant first lodged his application to become an Australian citizen.
The Respondent submitted that the Applicant had also failed to take all reasonable steps to acquire any identity documentation. Indeed they argued it was the Applicant’s own evidence at the Tribunal that he had not tried to contact his family or the consulate and there was no evidence before the Tribunal to show the steps he had taken to get the evidence required.
The Respondent submitted that doubt was cast over the Applicant’s identity as he had provided inconsistent evidence about his life story making numerous inconsistent and his assertions to the Tribunal about these inconsistencies had not been support by any independent corroborating evidence.
COUNTRY INFORMATION
The Department of Immigration and Border Protection, Thematic Briefing – Country of Origin Information Services Section, effective from 14 July 2017, into the ‘Rohingya: Issues relating to statelessness (Myanmar, Bangladesh and Malaysia)’ provides the following:
Other forms of documentation – household lists and birth certificates
Household lists are often the only formal documentation available to Rohingya in northern Rakhine State. Penalties of up to seven days in prison apply to people not registered on a household list. Household lists contain identification of a person’s residential status, their address details and personal information including registration number, ethnicity and religion. Every Rohingya must present a household list at the time of a check by authorities, otherwise they will be classified as illegal immigrants. Those fleeing to Bangladesh in the wake of the post-October 2016 security ‘clearance operations’ are at risk of having their names removed from their household lists, compromising their ability to prove their legal residence should they return.
Household lists are required to obtain services, yet have become harder to obtain since 1988. From 1988 onwards, Rohingya experienced many restrictions in obtaining household lists. These included rude behaviour from officials, the necessity to pay bribes, tardy processing times (up to six months), harassment in the form of being required to submit unnecessary documents, expenses required in travelling to the local Immigration and National Registration Department (INRD) office (where applicants had to apply in person), and illiteracy hampering the ability to complete forms. Due to these concerns, Rohingya often use third persons or agents to access their documents for them. From 2000 onwards, new household lists have not been issued for newly married Rohingya couples separating from their parents’ households; the children of undocumented parents also therefore do not appear on any household list. From January 2016, a new procedure commenced to insert new-born Rohingya babies onto household lists; the process is so bureaucratically onerous that most children are likely to remain unregistered. Household lists are required to obtain CSCs, birth certificates, school enrolments, travel permits and to gain access to services such as electricity and water.
Authorities have ceased issuing birth certificates to new-born Rohingya. Since the mid-1990s, new-born Rohingya children have not been issued with a birth certificate. Respondents to a recent survey in Rakhine State indicated that until 2005, the regular practice was for birth certificates to be issued to parents at the time of a child’s birth. After 2005 however, parents only received a delivery certificate rather than a birth certificate. Midwives and nurses (associated with Sittwe hospital – where some affluent Rohingya women gave birth) are authorised to issue delivery certificates; traditional birth attendants tending to the majority home births are not authorised to do so. Many children born in rural areas post-2005 do not therefore have birth certificates. Birth certificates are required to add children to a household list. In urban areas, delivery certificates are required to enrol children in primary school, though this may not be the case in rural areas; even Rohingya children with birth certificates are frequently denied access to public education.
General
Rohingya face severe restrictions on basic rights, including to travel, access health care, education and livelihoods. Most Rohingya face severe restrictions on their ability to travel, avail themselves of health-care services, engage in economic activity, obtain an education, and register births, deaths, and marriages. Since the communal violence of 2012, Rohingya Muslims, Rakhine Buddhists, and individuals of other ethnicities and beliefs throughout the state have suffered grievous deprivations of basic rights, including inadequate access to food, water, shelter, education, and health care. They also experience restrictions on freedom of movement; denial of needed humanitarian aid; and limited opportunities to obtain an education or earn a living. At worse they endure egregious human rights abuses resulting in death, injury, and displacement; and, in the case of Rohingya Muslims, the denial of the right to a nationality and citizenship.
The DFAT Country Information Report on Myanmar dated 18 April 2019 provides the following:
RACE/NATIONALITY
3.1 The Myanmar government recognises eight major ethnic groups (the Kachin, Kayah/Karenni, Karen/Kayin, Chin, Bamar, Mon, Rakhine and Shan) as part of 135 ‘national races’, and the law grants full citizenship to members of these races. Under the Citizenship Law, an ethnic group must have been present ‘in any of the territories included within the State’ continuously since 1823 for its members to be entitled to full citizenship. The law restricts members of other groups from full citizenship (see Documentation). The Constitution recognises those national races with greater than 0.1 per cent of the national population (‘National races with suitable population’) by allocating seats in state and regional parliaments to members of these groups.
3.3 The Rohingya are not among the 135 recognised ethnic groups, nor are people of Indian, Chinese, Anglo-Burmese or Nepali descent. The formal restrictions on people who do not hold full citizenship are broad. Proof of citizenship is usually required to access state-funded health and education services, although in practice, those with the ability to pay can sometimes secure access to these services. They typically cannot work for state, regional or central governments.
Citizenship
3.9 Up until the late 1980s, all Myanmar citizens were issued formal identity documentation known as National Registration Cards (NRCs), and many residents of Rakhine State, including Rohingya, held NRCs. Non-citizens were issued Foreign Registration Certificates. In 1989, the government carried out a ‘citizenship scrutiny’ exercise as part of the implementation of the Citizenship Law. During this process, NRCs were replaced with full, naturalised or associate Citizenship Scrutiny Cards (CSCs). Under the Citizenship Law, many Rohingya are formally eligible for associate or naturalised citizenship, but very few have been issued CSCs of any type following the citizenship scrutiny exercise. While this is largely due to the unwillingness of government officials to provide citizenship to Rohingya, many Rohingya also reject the categories of associate or naturalised citizenship, on the basis that they implicitly deny the existence of Rohingya in Myanmar before 1823, and legally reinforce what Rohingya see as the inaccurate view that Rohingya are immigrants from Bangladesh. Associate and naturalised citizenship categories confer fewer rights than full citizenship.
3.10 In 1995, the government began to issue Temporary Registration Cards (TRCs) (known as ‘white cards’) to those who identified as Rohingya. However, in 2015 then-President Thein Sein declared white cards invalid, thus removing the only formal identity documentation available to the Rohingya. Temporary Approval Cards (known as ‘white card receipts’) were given out in exchange for TRCs, reportedly as part of a plan to reinstate identification documents at a later date. However, these were not accepted as valid documentation for the purposes of voting in the 2015 elections, or to stand as candidates, or form political parties.
3.11 From June 2015, the government began issuing a new ‘identity card for national verification’ (ICNV). DFAT understands that as few as 1,000 people were issued this card in 2015. Rohingya applicants were required to identify as ‘Bengali’ on the ICNV, and rights associated with the ICNV, including its limited two-year validity, were unclear. The UN Fact-Finding Mission described a campaign to coerce Rohingya to accept the ICNV, and increased restrictions on those with white card receipts in parts of northern Rakhine State.
3.12 From 2016, the government restarted the process to determine who is a citizen under the Citizenship Law. Rohingya were requested to undergo a ‘citizenship verification process’ (as opposed to the ‘citizenship process’ for members of the 135 recognised ethnic groups) and issued National Verification Cards (NVCs). The NVC does not specify religion or ethnicity, it has no expiry date and it is the current form of identity documentation required for Rohingya by the government. Reports of coercion to accept the NVC increased following the October 2016 violence, however as at January 2017, only around 6,000 NVCs had been issued in Rakhine State, compared with nearly 400,000 white cards which were surrendered, in part reflecting the decreased trust in the authorities from the Rohingya population.
3.13 In August 2017, the Advisory Commission on Rakhine State, a government established body chaired by former UN Secretary General Kofi Annan, made a number of recommendations to improve the government’s citizenship verification process for Rohingya, including making the process voluntary.
3.14 Despite these restrictions specified by authorities, the rights provided by the NVC remain opaque. In theory, NVC holders are permitted to travel anywhere in Myanmar, however in practice this is limited by the rules and regulations of local areas (see Freedom of Movement, and Movement restrictions in Rakhine, Kachin and Shan States). In February 2018, the government advised DFAT that a NVC is required by Rohingya in order to access basic services such as health and education. Despite this, most Rohingya remain unwilling to participate in the citizenship verification process and accept NVCs on the basis that it may remove their right to remain in Myanmar long-term, or establish them as a lower class of citizen with fewer rights. As a result, the vast majority remain undocumented – or holding a white card receipt – and are effectively stateless. This is having significant implications in particular for the registration of new births in the Rohingya community (see Birth and Death Certificates, and National Identity Cards). Credible sources reported that Rohingya also face difficulties in legally obtaining passports.
CONSIDERATION
The Tribunal notes the Policy indicates that assessment of the person's identity must be on an evidenced-based approach, which seeks to establish a person's identity from birth. Also, it cannot be satisfied of a person's identity at one point in time, as a person's identity is not a point in time concept but must be verified incrementally through a person's life and considered historically. When assessing a person's identity, the objective is to determine whether inconsistencies are identified with any aspect of a person's life story, biometric data and documentary information (i.e. an identity card).
Further, the Policy clearly identifies that individuals seeking citizenship may be undocumented arrivals who are stateless and are unable to provide any evidence of their identity prior to arriving in Australia. In this situation, the Policy articulates that an informed assessment is necessary, based on research of country of information and weighed against the evidence provided by an applicant.
The Tribunal found the Applicant to be a credible and reliable witness who had provided a consistent, all be it brief, life story since his arrival in Australia on Christmas Island seeking asylum, through his Visa application process and his lengthy citizenship process. The Tribunal found the Applicant had provided a cogent and consistent life story of his upbringing in Myanmar as a stateless Rohingya, his time spent in Thailand, Malaysia and Indonesia prior to his arrival in Australia as an asylum seeker.
The Tribunal did not arrive at the same conclusion as the delegate on 15 November 2019, who found:
Documents Containing Your Name:
On 07 March 2019, the Department received a number of documents from you, these were copies of stated originals. These documents included three Student Cards, one Temporary Identification Card, and one document which may be a Household Registration. The NAATI translation of these documents states that the Temporary Identification Card contains hand-written contents which are faint and blurry. The translator states that the document is illegible and cannot be translated. The translator also states that the biggest document (at bottom) cannot be translated as it is mainly covered by four other documents lain on top of it. This document appears to be a Household Registration List, but this cannot be determined owing to no translation being provided.
Of the three student cards submitted, the first is dated 1995 – 1996 and held by YGVD (son of…..) born….. The second translation provides no information on the holder other than a photograph.
The final of the three cards was issued on 23 August 2000 and held by YGVD (son of… ) born… . You have stated at Question 54, Part T Additional Information of the Form 80 Personal Particulars for Assessment Including Character Assessment signed by you on 06 March 2019 that these Student Identity Cards cover the years 1995 – 2001. These are the oldest identity records submitted by yourself to the Department. Based on your stated year of birth (1982), they record your life from the ages 13 – 21. At no point do these records show your name as having been anything other than YGVD .
It is also noted that the Student Identity Cards provided by you record the date of birth… . While it would on face value appear that this is simply a result of the American date system being used (month, date, year); the fact that the issue date on the final card is recorded as 23/08/2000 compels me to read all dates in the European format (date, month, year). This creates a fifth identity, YGVD…..
You have also supplied a copy of a stated Myanmar Drivers Licence with your Form 1300t application for Australian Citizenship. This document is untranslated, and therefore it cannot be determined that it contains information which would contribute to establishing your identity.
While you have stated that you have supplied a copy of your family’s Household Registration list, the NAATI translator has noted that this document cannot be translated; as it is mainly covered by four other documents lain on top of it. This document appears to be a Household Registration list, but this fact, and who is actually recorded on the document cannot be determined owing to no translation being provided. As such, I cannot be satisfied that you have supplied a Household Registration list for your family
The Tribunal found the Applicant had provided valid primary identification documentation from his life prior to his arrival in Australia. The Tribunal relying upon DFAT country of information which noted the difficulty stateless Rohingya’s have in obtaining any form of identity documentation placed considerable weight on the applicant’s student cards, his temporary white card, his parent’s white cards and his Myanmar driver’s licence. The Tribunal placed less weight on the household lists as these were exceptionally difficult to read and translation had not been completed by a registered translator, however the list was not considered fraudulent by the Department and does verify the Applicant’s family composition. However, the household list did provide the names of his parents and siblings which he has provided on his numerous application forms, establishing his family composition. The DFAT country information also supports the Applicants claim that he would have been removed from the household list after he left Myanmar.
The Tribunal did concur that the Applicant had at various times provided inconsistent information about his family composition, but from his original refugee application filed in 2009 with the assistance of a registered migration agent through his numerous applications for citizenship and his clarification letter of the 18 October 2019, he had consistently identified his mother, father, four brothers and one sister.
The Tribunal taking account of the fact the Applicant left his family home when he was 19 years of age, lived illegally in Malaysia for several years where he was jailed as an illegal immigrant finally taking a perilous trip to seek asylum in Australia found it was not unrealistic that his knowledge of the formal spelling of his sibling’s names or the exact date of birth of his family members was lacking. The Tribunal considered it plausible the Applicant had guessed as best he could the formal spelling of the names and date of birth of his family members.
The Tribunal also considered that the Applicant’s English language skills whilst not insignificant would be taxed by completing the numerous citizenship forms for which he has not sought assistance to complete. The Tribunal therefore relied upon the Applicants original refugee applicant form, his letter of 18 October 2019 and the household list to find he had provided a plausible family composition which accord with his life story.
The Tribunal found that the documentation inclusive of the household list provided by the application consistently identified him by the name and date of birth he had provided on arrival in Australia. That the Applicant had sought to provide as much original documentation as he had, to have it officially translated, to explain the inconsistencies and poor quality of the documentation. The Tribunal noted that at no stage had the validity of the documentation been questioned.
The Tribunal placed weight on the Applicant’s friends statement as it did verify the Applicant’s life story and corroborated his friends brief statement at the hearing that he was well acquainted with the Applicant and could attest to knowing him as the person he claimed to be. The situation of identity at the hearing was complicated by the difficult with the interpreter who whilst of assistance to the hearing, was not accredited, as the Tribunal was informed, there are no accredited Rohingya translators. Additionally, the fact that the Applicant, the interpreter and the Applicant’s friend were all known to each other was difficult to navigate as at various times the Applicant and his friend disagreed with the translation provided.

The Tribunal, based on the guiding principle set down in numerous case before the Tribunal on identity found the Applicant had provided some limited identity documents from Myanmar, had explanation why these were in poor quality and difficult to translate, and had provided evidence of his genuine attempts to acquire identity documents from family members still in Myanmar. The Tribunal accepted based upon DFAT advice that the Applicants and his family members would be extremely fearful of approaching authorities in both Myanmar and Consulate staff in Australia because of the well founded and documented persecution of Rohingya Muslims. The Tribunal relied upon the DFAT report of 18 April 2019 which clearly states:
Rohingya
3.8 DFAT assesses that official and societal discrimination on the basis of ethnicity against Rohingya in Rakhine State is high, endemic and severe. They typically lack citizenship, face severe restrictions on their freedom of movement and are the subject of systemic extortion and harassment. These issues combine to restrict this community’s access to livelihoods and to essential services, including in education and health. Rohingya have also been subjected to extreme violence by the security forces, and to a lesser extent, the ethnic Rakhine population (see Security Situation and Rohingya, Violence). The UN Fact-Finding Mission reported episodes of violence between Buddhists and Muslims across the country in recent years, primarily in Rakhine State, and high levels of religious and ethnic tensions remain at the time of publication. DFAT assesses there is a high risk of further violence for the remaining Rohingya in Rakhine State.
As the Respondent correctly noted, the Tribunal has considered the issue of identity in a number of decisions and had carefully consider every case in the context of its own circumstances, noting that some individuals may not always hold, or may not be in a position to obtain, certain documents, and that conflict and bureaucratic or administrative structures, or limitations in those structures, may limit a person's ability to obtain documents in relation to their identity hat pre-date their arrival in Australia. The Respondent took the Tribunal to the matter of Dhayakpa where Deputy President, The Hon. R Nicholson, found
Section 24(3) of the Act relevantly provides that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
I am satisfied that the identity of the applicant has been established as being that of Tenzin Dhayakpa, a Tibetan refugee.
The applicant’s evidence and the evidence of Tshering Lhamo support this finding.
It is true, as the respondent contends, that the applicant has not been able to produce one official document which recognises his identity save the reference to him in the Nepalese citizenship certificate of Tshering Lhamo.
The evidence of the applicant explains why this is the case. He became caught up as a Tibetan in the Chinese takeover of Tibet. He and his family fled Tibet and lost their possessions. His declaration and that of Tshering Lhamo attach what photographs are now available to the applicant. It is apparent that the applicant has very limited sources of evidence to produce.
The applicant holds a “Green Book” being a form of identity document issued by the Tibetan Government in exile. However, it was issued in Australia on the basis of the information provided by him. He had at least three prior Green Books issued to him before he came to Australia. His legal representative corresponded with the Central Tibet Administration in an unsuccessful attempt to secure copies.
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.
I am satisfied as to his identity. In my view in the most unusual circumstances of the applicant’s life, he has established it to the best of his ability.
It is also the name under which he holds a humanitarian visa entitling him to reside permanently in Australia.
It was not put to the applicant in cross-examination that the name Tenzin Dhayakpa was a false name.
The choice of his birth date casts no doubt on the evidence concerning the applicant’s name. The evidence of Tsering Lhamo and general knowledge concerning the conditions prevalent in Tibet both prior and subsequent to its annexation by China suggest that it is a common practice to ‘decide’ on a date of birth. Such a system has also been applied in Australia to ‘decide’ birth dates for Aboriginal persons born on a date unknown and is accepted by courts in the course of litigation on Native Title.
The Tribunal found the determination in Dhayakpa analogues to the Applicant’s situation given as a stateless Rohingyan Muslim he had limited identity documentation, he had attempted to provide appropriate identification documentation, an explanation of his life story and attempts to gain additional documentation. At no stage has anyone sought to claim the Applicant is other than who he purports to be, and he has continued to identify by the same name, birthdate and national since his arrival in Australia.
The Tribunal, having considered all the evidence placed before it, is satisfied of the Applicant’s identity. As such, he should not be denied the ability to apply for Australian citizenship.
DECISION
The Tribunal sets aside the decision of the delegate dated 15 November 2019, refusing the Applicant’s application for Australian citizenship by conferral and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to

section 43(1)(c)(ii) of the AAT Act, that it is satisfied of the Applicant’s identity.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

..............[sgd]..............................................
Associate
Dated:    3 March 2021
Date of hearing:  9 November 2020
Submission of additional materials:               15 January 2021
Applicant:  Self-represented
Advocate for the Respondent:  Ms Lauren Hargrave
Solicitors for the Respondent:  Clayton Utz Lawyers

[2021] AATA 368

3 March 2021

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Immigration

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