Yusuf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 2096
•2 July 2021
Yusuf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2096 (2 July 2021)
Division:GENERAL DIVISION
File Number(s): 2020/3133
Re:Mohamed Yusuf
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:2 July 2021
Place:Sydney
The decision under review is set aside and remitted to the Minister to be reconsidered according to the finding that the test of the Applicant’s identity has been satisfied.
..................................[sgd]......................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – whether Minister can be satisfied of the identity of the person – Rohingya persons – meaning of identity – application of Citizenship Procedural Instructions – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 23A, 24 and 26
Administrative Appeals Tribunal Act 1975 (Cth) s 33
CASES
Adalat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3360
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ahamod and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 7
Al-Hussaini and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), International Court of Justice 23 January 2020, General List no. 178
Bayan and Minister for Immigration and Border Protection [2015] AATA 256
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222
Ghumaan v Minister for Home Affairs [2019] AATA 200
Mabo v Queensland [No 2] [1992] 175 CLR 1
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sherpa & Anor v Minister for Immigration & Anor [2020] FCCA 2988
Shi v Migration Agents Registration Authority [2008] HCA 31
Sinnathamby and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2579
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 141 ALD 540
SECONDARY MATERIALS
Australian Citizenship Policy Statement
Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act (10 April 2019)
DPA, ‘Rohingyas are not citizens: Myanmar minister’, Labour Office (ILO): Forced Labour in Myanmar (Burma) Official Bulletin Vol LXXXI (1998)
National Identity Proofing Guidelines
UNHCR, ‘Civil Documentation in Myanmar’, FOR DECISION
Chris Puplick AM, Senior Member
2 July 2021
Mr Mohammed Yusuf (the Applicant) is seeking to obtain Australian citizenship by conferral under the provisions of the Australian Citizenship Act 2007 (Cth) (the Act).
It is uncontested that the Applicant is a member of the ethnic Rohingya community and that he was born in Myanmar (Burma).
Much else about the precise identity of the Applicant is contested.
BACKGROUND
The Applicant initially arrived in Australia (Christmas Island) as an unauthorised maritime arrival on 9 December 2009. On 6 April 2011 he was granted a Protection Visa and on 19 September 2013 he applied for a Prospective Marriage Visa in relation to Ms Latifa Shafi. He is currently the holder of a five-year Resident Return (subclass 155) visa, granted on 8 August 2016.
On 29 June 2015 the Applicant applied for Australian citizenship by conferral and, in association with this application he attended a citizenship identity interview on 16 October 2015.
Arising from that interview the following occurred:
(a)On 26 June 2017 the Applicant was asked to provide further details about his identity and to provide a copy of his Household Family List;[1]
(b)On 14 August 2017 and 11 February 2020, the Applicant submitted further material which included a Household List;
(c)On 4 March 2020 the Applicant was advised that the Department had concerns about inconsistencies identified in relation to the documents supplied and his own narrative of his life and family history;
(d)On 28 April 2020 and 4 May 2020, the Applicant’s Migration Agent provided response to the Department’s concerns.
[1] A household list is a document with information on the members of the family or household. This document is given by the Ministry of Labor, Immigration and Population after the head of the household applies in person for it at the MoLIP Township Office. If the head of household cannot go to the MoLIP Township Office, the head of the household can give a letter of authorization to another member of the household who is above 18 years old to apply on the head of the household’s behalf. The letter must be counter-signed by the Ward/Village Administrator. For all changes to the household list (e.g. adding new family members, removing a deceased family member’s name, moving from one Township to another, etc.), the head of household must apply in person or give a letter of authorization to another member of the household who is above 18 years old to apply on the head of household’s behalf. If one of the members of the household wants the name to be removed from the household list and apply for their own household list (marriage or divorce), they will need to prove the following (1)Separate rooms, kitchen, and income (2)Letter of agreement from the head of household (3) Original copy of the household list (4)Recommendation letter from Administrator of respective Ward/Village for evidence of residing in that Ward/Village. UNHCR: Civil Documentation in Myanmar. >
A delegate of the Minister considered all the material submitted and determined, on 22 May 2020, that the Applicant’s application should be refused on the basis that he had failed to establish his true identity to the degree required for such an application to be considered further for approval;
On that same day, 22 May 2020 the Applicant lodged an application in this Tribunal for a review of the refusal decision.
The matter was heard in the Tribunal on 18 and 19 May 2021 using the Microsoft Teams platform in accordance with the Tribunal’s COVID-19 safety protocols.
Apart from numerous local witnesses, the Tribunal also took evidence from the Applicant’s father, mother and brother over the telephone from the Cox’s Bazar UNHCR refugee camp in Bangladesh.
The Tribunal was assisted by an interpreter, with witnesses using both the Rohingya and Burmese languages.
CITIZENSHIP BY CONFERRAL
The Act provides that a person may make an application for citizenship by conferral.[2] The Minister must make a decision on the application and either approve or refuse it.[3] An applicant must meet certain qualifications a specified in the Act[4] and, if they do, they must then undertake and pass the Citizenship Test[5] (unless they are exempted from so doing[6]). Once those steps are complete, a qualified applicant must make the Pledge of Commitment[7] (unless they are exempted from so doing)[8] before their citizenship is finally granted.
[2] Australian Citizenship Act 2007 (Cth) (Act) s 21(1).
[3] Act s 24(1).
[4] Act s 21(2).
[5] Act ss 21(2A) and 23A.
[6] Act ss 21(3)(d), 21(4)-21(8).
[7] Act s 26.
[8] Act s 26(1).
There are also certain other constraints on the Minister’s power to grant citizenship which touch upon matters of national security, residential status and breaches of the law.[9] They are not relevant in these proceedings.
[9] Act ss 24(4)-24(6).
However, there is a foundational and fundamental matter which precedes all other considerations and requirements for the grant of citizenship.
Subsection 24(3) of the Act provides:
The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Two important aspects of this requirements must be noted. The Minister (or, in this instance, the Tribunal) must be positively satisfied as to the identity of the applicant and the onus lies upon the applicant to establish their identity.
The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth)[10] makes it implicit in the operation of the Act that:
[t]here may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen [at 41].[11]
[10] The bill which became the Australian Citizenship Act 2007 (Cth).
[11] Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth).
ESTABLISHING IDENTITY
As noted, citizenship is a privilege and must not be granted to people whose identity is or cannot be established. As the Tribunal said in Gjura:
Citizenship grants a person important privileges including the right to vote, and the right to have a say in the governance of the country and the right to free entry into Australia. It should go without saying that satisfaction of a person’s identity is critical to the granting of these rights by the Australian government.[12]
[12] Gjura and Minister for Home Affairs (Citizenship) [2018] AATA 4222 at [32].
Decision-makers are assisted by two sets of documents in the process of determining the identity of an applicant for citizenship by conferral. The first is the Australian Citizenship Policy Statement and Citizenship Procedural Instructions (Citizenship Policy Statement/CPIs)[13] published by the Department administering the Act and secondly the National Identity Proofing Guidelines (ID Guidelines) published by the Department of the Attorney-General in 2016.
[13] Australian Citizenship Policy Statement; CPI 16 – Assessing Identity under the Citizenship Act (10 April 2019).
It is to be noted that these documents are just that – they are not law, and while they must be given utmost consideration by any decision-maker they are not to constrain the right of the decision-maker[14] to make any decision lawfully open to them to make, based on the material before it at the time of its own decision-making.[15]
[14] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[15] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J; Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
WHAT IS “IDENTITY”?
The Act itself, typically, provides no definition of the term “identity”.
Among the definitions in the Macquarie Dictionary are “2. the condition of being oneself or itself, and not another… 6. the state or fact of being the same one.”
The Oxford English Dictionary (online edition) relevantly defines identity as follows:
a. The sameness of a person or thing at all times or in all circumstances; the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality.
b. Who or what a person or thing is; a distinct impression of a single person or thing presented to or perceived by others; a set of characteristics or a description that distinguishes a person or thing from others.
There are two fundamental characteristics of establishing identity – continuity (the person or thing remains constant) and contrast (the person or thing is distinguishable from other persons or things with whom a valid comparison may be made).
The relevant sections of the Citizenship Policy Statement[16] provide, inter alia:
The Minister may be required to refuse an application for Australian citizenship by conferral on grounds relating to:
Non-satisfaction of identity (as per subsection 24(3) of the Act)…
[16] Australian Citizenship Policy Statement.
Regard must also be had to the ID Guidelines which relevantly provide as follows:
1.1 Background
1.1.1 Establishing confidence in a person's identity is a critical starting point for delivering a range of government services and benefits, as it is for many transactions conducted by the private sector and other non-government organisations.
…
1.1.5 Identity proofing is an important part of efforts to prevent identity crime. It is also critical to promote the trust and confidence in identities, particularly online, which will be a key enabler of Australia's digital economy into the future.
There are often instances in which a person cannot produce identity documents, or documents which meet the requirements of the Citizenship Policy Statement and CPIs. The ID Guidelines themselves recognise this (emphasis in original):
5.1 Exceptions processes to confirm a claimed identity
5.1.1 Although the majority of people should be able to meet the requirements of these Guidelines, in some cases people may face genuine difficulty in providing the necessary evidence to identify themselves to the required level of assurance. Each organisation MAY develop alternative identity proofing processes for these ‘exceptions cases’ (if appropriate) informed by a risk assessment and SHOULD review these processes regularly.
5.1.2 Exceptional cases are those where a person does not possess, and is unable to obtain, the necessary information or evidence of identity. This MAY (but does not necessarily always) include: people whose birth was not registered; people who are homeless; undocumented arrivals to Australia; people living in remote areas; people who are transgender or intersex; people effected by natural disasters; people with limited access to identity documents, for example because they were raised in institutional or foster care; people with limited participation in society; and young people or those over 18 who are yet to establish a ‘social footprint’ in the community.
To this list, the Tribunal would add people who have been refugees from conflict zones; victims of “ethnic cleansing activities” and even, in some instances, older members of Australian Indigenous communities, especially those identified as being part of the “Stolen Generations”.
The ID Guidelines continue:
5.1.3 Alternative identity proofing processes that organisations MAY consider for these exceptions cases31 include (note different combinations of these processes may be appropriate depending on the individual circumstances).
(1)Acceptance of alternative types of evidence of identity (such as multiple types of SECONDARY evidence types where normally a PRIMARY evidence type would be required).
(2)Verification of the person's claimed identity with a trusted referee whose identity has been (or is being) verified to an equal or greater level of assurance.
(3)Verification of a person's claimed identity with reputable organisations or bodies known to them (for example, Aboriginal and Torres Strait Islander organisations may hold, or be able to verify, the identity of clients where no prior government record exists).
(4)A detailed interview with the person about their life story to assess the consistency and legitimacy of their claims…[17]
[17] National Identity Proofing Guidelines at 5.1.3(1)-5.1.3(4).
It is also important to note what the ID Guidelines provide in definitional terms. Paragraph 2.1.1 states:
A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
This definition is restated in the most recent version (10 April 2019) of the Department’s Citizenship Procedural Instructions, Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act (CPI 16).[18]
[18] CPI 16 – Assessing Identity under the Citizenship Act at [4.2].
CPI 16 identifies a trifecta of factors used to establish identity:[19]
[19] Ibid at [4.4].
Three pillars
of identity
Individual characteristics 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. Documents 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.
Documents contain biodata, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.
Life story A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence. They then make explicit 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.
CPI 16 states clearly at [4.16]:
Reaching the point where a decision-maker is satisfied, or not satisfied, of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue/s and the evidence and information has been rationally and impartially considered and weighed.
Put another way, for a decision-maker to be ‘satisfied’ the decision-maker must consider whether or not he or she is persuaded on the basis of evidence of a person’s identity. In other statutory contexts judges have said the decision-maker must ‘feel’ an actual persuasion of that matter; he or she cannot be satisfied merely as a result of a ‘mere mechanical comparison of possibilities independent of any belief in its reality’. On the other hand, a decision-maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.
Officers should not merely collect information and documents but consider the quality, plausibility and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. More documents do not necessarily result in better identification of a person.
Evidence is used to satisfy decision-makers that relevant criteria are met. Therefore, there is no problem of weight if all the evidence points in one direction. Problems of weight only arise where different items of evidence point in different directions, that is, where there is conflicting evidence.
PRELIMINARY MATTERS[20]
[20] Throughout this determination the spelling of names of people and places will vary. The Tribunal has not attempted to impose a uniformity on spelling but uses the different spellings in accordance with each of the instances in which they occur.
Myanmar/Burmese Rohingya
The Tribunal will not dwell at length on the position of the Rohingya minority in Myanmar. Suffice to say that it is generally accepted that this ethnic/religious minority has been subject to lengthy and systematic persecution by the Myanmar authorities, the Myanmar military and militant sections of the Buddhist religious community. The Department of Foreign Affairs and Trade Country Information Report – Myanmar (10 January 2017) (2017 DFAT Report) states unequivocally (at paragraph 3.10):
“DFAT assesses that official and societal discrimination against Rohingya in Rakhine State, on the basis of their ethnicity, is endemic.”
An updated version of the Report (18 April 2019) (2019 DFTAT Report) 2019 states (at 2.59):
The security situation in Rakhine State deteriorated rapidly after two outbreaks of violence in 2012. These affected ethnic Rakhine (mostly Buddhists) and minority Muslim communities (both the population that identify as Rohingya and the Kaman) across 12 townships. The UN Fact-Finding Mission reported that the security forces, sometimes in cooperation with Rakhine civilians, committed serious human rights violations against Rohingya and Kaman across Rakhine State between 2012 and 2013, including the burning of houses, looting of shops and extrajudicial and indiscriminate killings, including of women, children and the elderly.
The Burmese Citizenship Law 1982 recognises 135 “national races” as constituting parts of the Burmese (Myanmarese) nation, however the Rohingya peoples are not included in this list. In 2012 the Myanmar Immigration Minister was quoted as saying of the Rohingya: “They are not included among our more than 130 ethnic races.”[21]
[21]>
There has been a recent decision of the International Court of Justice[22], by way of a Provisional Measures decision ordering the government of Myanmar to take steps to prevent the genocide of Rohingya and to protect them from persecution.
[22] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), International Court of Justice 23 January 2020, General List no. 178.
As far as the government of Myanmar is concerned members of the Rohingya community are regarded as immigrant Bengali peoples and are denied any rights of citizenship. They have thus been rendered stateless in terms of international law.
Citizens of Myanmar are required to carry some form of identification card. The 2019 DFAT Report states:
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.
Until 2017 some 1.4 million Rohingya lived in Myanmar, primarily in Rakhine state, but as a result of deliberate persecution by the then military regime,[23] some 750,000 of them fled into neighbouring Bangladesh. Most ended up in refugee camps, primarily at Cox’s Bazar. Cox’s Bazar is the world’s largest refugee camp holding in excess of 700 000 displaced persons
[23] A regime since restored following a coup d’état against the legitimate civilian government in February 2021.
In recent decades a total of almost one million Rohingya have been displaced from Rakhine state and it is not known how many have been killed.
For many years, numerous Rohingya have been subject to forced labour.[24]
[24] International Labour Office (ILO): Forced Labour in Myanmar (Burma) Official Bulletin Vol LXXXI (1998).
Place names
It is challenging for the Tribunal to get a clear understanding from the evidence as to exactly where certain events in this narrative take place. Some of this uncertainty arises from the fact that various places are known by both Burmese and Rohingyan names. It can also be confusing when dealing with evidence from witnesses as to where events took place because they may describe them as taking place at the lowest sub-level of an administrative district or at a higher level – all being exactly the same place.
In his Statutory Declaration, Mr Seero Zafar, who is a respected senior member of the Rohingya community in Australia helpfully explained:[25]
Alei Than Kyaw [in Rohingya called Hashu Rata] is the main village group and inside it there were 9 sub-villages/blocks… In each sub-village, there were further sub-villages or wards. My birth village, Bodur Fara belongs to Maung Thula, one of the main sub-villages/blocks. Maung Thula has two more wards apart from my village. They are Sang Fara and Lamar Fara. Hence Maung Thula is comprised of Bodur Fara, Sang Fara and Lamar Fara.
[25] Dated 16 May 2021. Alternative spellings include Bawdur Para for Bodur Fara.
Alei Than Kyaw is itself a village within the Maungdaw Township (administrative district). Maungdaw is one of the major townships (population some 400,000 in 2008) in the Rakhine state of Myanmar (Burma).
Rakhine State (capital – Sittwe) is the home of most of Myanmar’s Rohingya population and has been the site of repeated acts of violence committed against that population.
THE APPLICANT’S LIFE STORY
The Applicant has set out the narrative of his life in several documents now before the Tribunal:
·On 3 December 2009 the applicant made a Statutory Declaration (while in detention on Christmas Island) regarding his fear of refoulment to Myanmar.[26]
·On 2 September 2013, he made a statement addressed to the Australian High Commission in Bangladesh in support of his prospective wife’s application for a visa.[27]
·On 16 October 2015 the Applicant was the subject of an extended interview at the Parramatta (NSW) office of the (then) Department of Immigration and Border Protection where he was questioned extensively about his life prior to arrival in Australia.[28]
·On 27 January 2020 the Applicant completed a Personal particulars for assessment of character assessment (Form 80).[29]
·On 28 April 2020 as part of his response to departmental enquiries he set out a 24-paragraph statement.[30]
[26] Respondent’s Tender Bundle at 32-33.
[27] Supplementary Tribunal documents (Supplementary T-documents) at 147-149.
[28] Respondent’s Tender Bundle at 35-87.
[29] T-documents at 89-107.
[30] T-documents at 140-143.
Analysis of these documents reveal some inconsistencies and discrepancies, although the Tribunal does not regard any of them as being of major significance, nor do they speak of any pattern of being deliberately misleading. Given that they span a period of over a decade and that, in some instances, they relate to events occurring more than two decades ago in often traumatic circumstances, the Tribunal makes allowances where matters are genuinely of minor detail and limited consequence.
His personal narrative – as the Applicant would have it - is as follows:
(a)He was born on 1 March 1979.
(b)His place of birth was Sang Para sub-village, Alei Than Kyaw village in the township of Maungdaw (Hashu Rata) in the Rakhine state of Myanmar.
(c)He is, by ethnicity, a member of the Rohingya community and his faith is that of (Sunni) Islam.
(d)The Applicant is one of nine children of his still-living parents, although two of his siblings have since passed away.
(e)He attended primary school (at Ali Tango school) commencing in about 1983 and continued until “4th year” in around 1987 when he commenced studies at a local madrassa.[31] These studies continued until approximately 1991 when the Applicant fled Myanmar for Bangladesh where he continued his madrassa studies in Teknef.
[31] A madrassa is an Islamic school in which the students (all male) are instructed to read and learn the Holy Koran in its original and authentic Arabic version.
(f)While in Myanmar the Applicant was subjected to forced labour by the local military and was frequently beaten and tortured by them.[32]
(g)Sometime in 1991 he fled Myanmar for Bangladesh. In his testimony to the Tribunal he suggested this was in August/October 1991 (he said it was “4 to 6 months” after the devastating cyclone which smashed the region in April 1991) whereas in another of his statements he is specific in giving the date as 20 December 1992.[33]
(h)He remained in Bangladesh until October 2000 where it appears he continued his religious studies and was not engaged in any full-time occupation.
(i)He told the Tribunal that “he could not stand living” in Bangladesh any longer (without elaborating on that statement) and so illegally fled to Malaysia in October 2000. He remained there, unlawfully and undocumented until October/November 2009. While there he worked in various parts of the construction industry as a painter, carpenter and general labourer. Abul Baser, in his oral testimony (below) attests to knowing the Applicant in Malaysia and supporting his claim to have been working in the construction industry.
(j)In October/November 2009 he made his way from Malaysia to Indonesia where, with the assistance of people smugglers, he took boat for Australia, arriving at Christmas Island on 9 November 2009.
(k)At no stage did he ever possess any form of Myanmar identity card, other than being included on his family’s household list.
(l)Since 2013 the Applicant has left Australia four times making visits to Bangladesh and (once only) in 2018 he visited his family in Cox’s Bazar refugee camp whence they had fled in 2017.
(m)On one of those visits in 2013 the Applicant (already in possession of a NSW Provisional Drivers Licence) made arrangements to obtain a false Myanmar (international) Drivers Licence, which he did through an agent there. He claims the licence to be genuine but the procurement fraudulent.
(n)The Applicant is fluent in the Rohingya language. He is also a competent speaker of Urdu, Malay, Burmese, Bengali and Arabic. It was the Tribunal’s observation that he was also more than competent in his command of the English language.
(o)The Applicant’s family fled their village in 2017 as a result of increasing persecution by the Myanmar authorities and it appears that their village was itself destroyed by the Myanmar military.
[32] Applicant’s Statutory declaration, 3 December 2009 at Respondent’s Tender Bundle at 32.
[33] Statement of Mohamed Yusuf dated 2 September 2013, Supplementary T-documents at 147.
THE RESPONDENT’S CONTRARY AND FURTHER CONTENTIONS
The Respondent challenges the Applicant’s identity and in doing so calls into question:
(a)the date of his birth;
(b)the place of his birth;
(c)the record of his education;
(d)the composition of his family;
(e)the date of his departure from Myanmar;
(f)whether or not he ever held a formal identity card of any description;
And further, not simply as a matter of identity but as a matter also going to character, that:
(g)the Applicant supplied false and misleading information to the Australian authorities.
THE APPLICANT AND THE THREE PILLARS OF IDENTITY
Before seeking to assess any of the disputed claims, it is necessary to return to consideration of matters arising within the context of the three pillars of identity outlined above.
Biometrics
There are no obvious biometric data which would allow for the resolution of matters of the Applicant’s identity. Although there is a family photograph, it shows members of his family gathered for the purposes of confirming family registration but was taken after his departure from Myanmar. Hence, he is not included in the photograph, but other members of his family are shown, and the photograph can, with reasonable certainty, be dated to October 2016 and was apparently taken as part of an official (government) identification process.
Documentation
The Family Register
A key document in this case is the family register, the nature of which has been outlined above. There are several versions of this document in evidence before the Tribunal both photocopied in their original Burmese language and in certified translations.
The first of these, which is also the least complicated[34] contains the following relevant information:
[34] T-documents at 74-75. Details of Occupation and National/Foreign registration number omitted.
No
Name
Age
Burm
-ese year of birthFather’s name
Sex
Relationship to head of household
Race
Reli-gion
Remark
1
Hasam Ahmad
71
1304
Pawzaw Kurain
M
Head
Bengali
Islam
171208
2
Gulzahar
68
1307
Akmaku Ahmed
F
Spouse
Bengali
Islam
171299
3
Fatema
47
1328
Hasam Ahmad
F
Daughter
Bengali
Islam
4
Zawbeda
46
1329
Hasam Ahmad
F
Daughter
Bengali
Islam
171300
5
Shamima
44
1331
Hasam Ahmad
F
Daughter
Bengali
Islam
6
Mohammed Yusuf
39
1336
Hasam Ahmad
M
Son
Bengali
Islam
7
Mohammed Yunus
37
1338
Hasam Ahmad
M
Son
Bengali
Islam
171301
8
Hafsa
31
1344
Hasam Ahmad
F
Daughter
Bengali
Islam
171302
9
Mohammed Yahya
27
1987
Hasam Ahmad
M
Son
Bengali
Islam
257544
10
Shakila
23
1352
Malak Ali Yud
F[sic]
Grandson
Bengali
Islam
257545
There are certain features of this document which need to be noted. In the first instance there is one entry (Mohammed Yahya) whose year of birth is given in the Gregorian calendar rather than the Burmese. To calculate Gregorian dates from Burmese it is necessary to add 639 years. Hence, in the case of the Applicant’s birth year, 1336 in the Burmese calendar is equivalent to 1975 on the Gregorian calendar. There also appears to be an error in designating Shakila, a grandson as “F” rather than “M”.
Secondly, some family members have designated numbers in the “Remarks” column which the Tribunal understands to be a national registration (white card) number, and some do not. In most instances these numbers, where they appear, seem to be sequential.[35]
[35] Hasam Ahmad’s number, given in this document as 171208 is given in other documents as 1171298 – reinforcing the sequential nature of number allocations.
There is no national registration (white card) number recorded for the Applicant, Mohammed Yusuf.
A more fundamental problem however is that both Hasam Ahmad and his wife Gulzahar in their written submissions to the Tribunal state that they “had [a] total of 9 children, 4 boys and 5 girls”.[36] One of each appears to be absent from this list. The absence of a son, obviously born later than the issue of this document, is remedied by the time another document is issued in 2017 where Mudil Faisal is added to the list.
[36] Applicant’s Evidence at Exhibits A1 and A2. In this instance, Hasam Ahmad’s name is given as Hossein Ahmed.
This leaves the unresolved question of a missing daughter. There is abundant evidence in the statement of the parents and other family members (including her children), of a daughter known as Nor Bibi or Nor Begum who is the eldest daughter in the family and so must have been born before Fatema, that is before 1967.
What appears to be the next iteration of a household list is undated but generally comports with the first list.[37] What it does show is that the location of the family is in the Village of Maung Tula and the ward of Ahle Than Kyaw. In this document, six of the names in the first register are marked with deletions.
[37] T-documents at 108 and 405.
Three daughters (Fatema, Zawbeda and Shamima) are shown to have moved to another village and against one there is a notation to the effect that she has been granted permission to marry. The grandson (Shakila) is shown as also having relocated.
One son, Mohammed Yunus is recorded as:
2007 Random check – fled to BD – Died Deleted as per Reg 361/18.4.2008.
Against the name of the Applicant, Mohammed Yusuf the register records:
Ran away.
Internal references in this second register indicate details of a “letter” dated “5.8.2010”. As such, this document must post-date August 2010.
The difficulty of relying upon translated documents is evidenced in this instance by the fact that the national registration number of the head of the household, whose name is now given as Hussein Ahmed is shown as 171298 (as distinct from 171208). Given the use of sequential numbering it is more likely that the error (if there was one) occurred with the translation of the first document.
The third iteration of the household register shows a creation or registration date of 14 August 2017.[38]
[38] T-documents at 174-175.
It does not have any of the deletions of the second document, although it contains all the amendments related to the six individuals whose names were deleted. Like the second documents, it differs from the first document in that Shakila’s father is now recorded as Mohammed Ilyas.
Further, it adds another son of Hussein Ahmad by the name of Mudil Faisal with a birth date given as “1991”. It also adds a person, Mohammed Kalim (born “1330” = 1969) whose relationship to the head of the household is not stated, but who apparently “moved in from Sa Kha” by permission dated 19.6.2002. Finally, the names of two daughters-in-law and six grandchildren are added to the register. All of their years of birth are given in the Gregorian calendar.
An important difference between the second and third registers is that, in the entry for Mohammed Yusuf, while the second register states simply “ran way”, the third register has “2-3-91 ran away”.
Although there are three iterations of documents, none includes the daughter known as Nor Bibi.
It is also apparent that the documents are in different format, and this may well be accounted for by the fact that it appears that household lists were maintained by both the Burmese Immigration Department (LaWaKa) and the Burmese Border Force (MaFaKa).
The Applicant maintains that original documentation, including family registers were destroyed when his village was set fire to by the Myanmarese authorities in October 2017[39] and hence the current document is a replacement copy obtained somehow. He also told the Department’s officials that the list was confiscated by the Burmese army.[40] The oral testimony of the Applicant’s father suggests that the family had possession of the 2017 issued document with them when they fled to Bangladesh, although whether that document was an original or a copy is not clear.
[39] T-documents at 114.
[40] Respondent’s Tender Bundle at 47.
It is exceptionally difficult to determine what weight and degree of reliability should be placed on these various translated versions of household registers.
In his careful and thorough analysis of these documents, the Minister’s Delegate came to the conclusion that there was a high degree of probability that each of the documents was fraudulent and could not be relied upon.[41] The Tribunal has come to a similar conclusion.
[41] T-documents at 16-18 and 20.
However, for the purpose of assessing this application, what the Tribunal accepts, in relation to the Applicant, based on other corroborating evidence (see below), is the following:
(a)He was born in 1336 (1975).
(b)He was born in the sub-village of Ahle Than Kyaw.
(c)His parents are Hussein (Hasam) Ahmed and Gulzahar.
(d)He had a number of siblings, including a deceased brother (Mohammed Yunus), a brother (Mohammed Yahya) and several sisters, one of whom (Nor Bibi or Nor Begum) is now deceased and was not listed on any of the household registers provided. Nor Bibi had an identity card issued by the UNHCR which is in evidence before the Tribunal which shows her birth date as 1963 which would confirm her as the “eldest” sister.
(e)Nor Bibi had several children, including Nor Tasmin (Tasmeen Bibi) and Abdullah who are the niece and nephew of the Applicant and who gave evidence to the Tribunal.
(f)The Applicant fled Myanmar at some time (possibly in 1991) and this flight is recorded in the second and third household registers.
The Tribunal also accepts that the Applicant and all members of his family are designated in documents as being “Bengali” nationals which is in line with the established and recognised practice of the Myanmarese authorities attaching this designation to ethnic Rohingya people in order to deny them the rights of citizenship and contrary to their own self-identification.
UNHCR documents
There is a Family Attestation document, issued by the UNHCR in relation to persons in the Ukhia (Cox’s Bazar) refugee camp in Bangladesh. In some respects, it clarifies, and in others adds to the confusion of identifications. The document lists Hossain Ahmed and Gul Zahar as residents, along with their son Mohammed Yaha and members of his family (wife and two sons). It also includes Latifa Shafi who is the wife of the Applicant and one other, otherwise unknown person (Nur Uddin Faisal).[42] The document is not clearly dated.
[42] T-documents at 110.
There are two UNHCR Ration Cards. The first of these lists a Fatema (daughter of Hossen Ahmed and Gul Jahar, date of birth 1 January 1972)[43]and the other listing a Nor Bibi (daughter of Hossein Ahmed and Guljar, date of birth 10 July 1963).[44]
[43] Ibid at 111.
[44] Ibid at 117.
The Burmese Drivers’ Licence
The Applicant was questioned by Departmental officials on 16 October 2015 about a Burmese drivers’ licence which he had in his possession and which he had used as the basis of obtaining a Gold Drivers’ licence.[45] It appears that the Applicant had a previous NSW Provisional (P plate) Driver’s licence prior to that date which he obviously obtained without reliance upon any Burmese documentation.[46]
[45] Respondent’s Statement of Facts, Issues and Contentions at [32].
[46] Respondent’s Tender Bundle at 45-46.
In their record of decision, the Minister’s delegate wrote:
Departmental records show that prior to your citizenship identity interview you had consistently stated that you do not have any identity documents from Burma on the basis that you are stateless.
During your citizenship interview you provided Burmese Driver’s Licence number 281635. This document was purportedly issued to you in Yangon in 2004 and expired on 20 February 2012.
During your citizenship identity interview you stated the Burmese Driver’s Licence is a genuine document that was fraudulently obtained through the services of an agent when you travelled to Bangladesh in 2012. You stated that the citizenship numbers AKB009191[47] and the date of issue in 2004 and the date of expiry in 2012 are false. A Departmental examination of the document was unable to conclusively determine whether or not the document was manufactured as you had stated.
Information available to the Department supports your claim that e driver licence is fraudulent. You confirmed during the interview that you utilised this document to obtain Gold New South Wales Driver’s Licence. It therefore appears that you have used what you state is a fraudulent document to circumvent Australian learner permit, and provisional licencing regulations.[48]
[47] The prefix AK/AKB is indicative of issue in Rakhine state.
[48] T-documents at 15. Interview at Respondent’s Tender Bundle at 45-46.
The relevant point to note about this finding of the Delegate’s is that it goes more to the question of the honesty and integrity (good character) of the Applicant than to the question of his personal identity.
Life story
In testing the claims that the Applicant has made there is little more to be obtained from consideration of the documents beyond what is specified in paragraphs of this decision 54 to 83 above.
The Tribunal therefore turns to the evidence which it received by way of written and oral testimony from witnesses.
The Tribunal was able to speak to the Applicant’s father, mother and brother from the Cox’s Bazar refugee camp in Bangladesh.[49] The interviews were conducted in both the Rohingya and Burmese languages through an interpreter.
[49] The Tribunal accepts that it was talking to these individuals although it was not able to see them physically and the interview was conducted entirely over the telephone. The Respondent made no suggestion to the effect that the Tribunal could not be assured it was speaking to the people it believed it was.
Mohammed Yahya, the Applicant’s brother told the Tribunal that he had fled Myanmar in August 2017 together with all remaining members of his family. He stated that he had provided a copy of the household register to his brother after obtaining a “new one” in 2016 or 2017, although in 2017 the original was “taken away” by the authorities. He confirmed that his brother had left Myanmar in 1991 “after the storm” and that a principal reason for his leaving was that, as a young student his brother was a target of the Myanmarese military authorities. He himself was in possession of a white card, reissued after the surrender of his original card, for which he had the surrender receipt. In his written statement[50] to the Tribunal Mohammed Yahya stated that he and his family had resisted attempts by the authorities to make them carry a National Verification Card because these cards effectively denied their status as citizens of Myanmar.
[50] Applicant’s Evidence at Exhibit A3, dated 16 May 2021.
Hossain Ahmed, the Applicant’s 79-year old father gave oral testimony to the effect that he was in possession of the family household register which was a replacement document for one confiscated by the authorities in 2017. He also attested that he had a temporary identification card, replacing one previously confiscated and that he had supplied copies of these “genuine” documents to the Applicant. In his written statement he also commented that:
My son, Mohammed Yusuf, told me that the Australian authority accused my son to be a Shan, not Rohingya and from Shan state. I find it very ridiculous and funny to me. He barely speaks Burmese, forget about Shan language. I request the Australian authority to come and meet us in the Bangladesh refugee camp to confirm the documents and us in person. No one can find any Shan refugee in the Bangladesh refugee camp and all Rohingyas in the camp can testify us.[51]
[51] Applicant’s Evidence at Exhibit A1, dated 16 May 2021.
Gul Zahar is the mother of the Applicant. In her oral testimony she confirmed that her son had left Myanmar after the storm in 1991. She also confirmed that her eldest daughter, now deceased, was known as Nor Bibi or Nor Begum. In her written statement she states that she lived for some time in Yangon, although she was born in Hashu Rata (Ahle Than Kyaw) and although she is Rohingya she once held a Burmese National Registration Card as a citizen.[52]
[52] Applicant’s Evidence at Exhibit A2, dated 16 May 2021.
Tasmeen Bibi and Abdullah[53] are respectively the niece and nephew of the Applicant and the children of his eldest sister Nor Bibi. Tasmeen Bibi had been in the Cox’s Bazar refugee camp with her mother (recently deceased) and grandparents until she arrived in Australia in April 2021. She testified to knowing the Applicant in his home village.[54] Abdullah, aged 41 years, advised the Tribunal that he had completed the Australian citizenship test and was now awaiting advice of a date for him to make the Pledge of Allegiance. He left Myanmar in 1999 and lived for some time in Japan and Malaysia before arriving in Australia. In both his oral testimony and his written submission, he states that he and the Applicant “went to the same elementary school in the village” although his uncle was several grades ahead of him. He wrote that, “[w]e used to play soccer and volleyball together and hang out all the time.”[55] However, he was unable to say when the Applicant left Myanmar.
[53] The use of a single name among Rohingya peoples is not unusual.
[54] Applicant’s Evidence at Exhibit A5, dated 16 May 2021 in form of Statutory Declaration.
[55] Applicant’s Evidence at Exhibit A6, dated 16 May 2021 in form of Statutory Declaration.
Seero Zafar is a senior member and community leader of the Rohingya diaspora in Sydney. He is now an Australian citizen who arrived here in 2000. He was born in the same village as the Applicant and had personal knowledge there of him and all members of his family, including parents and grandparents.[56] He left Myanmar in 1997 at which time he was a political activist against the government. He described the Applicant’s father as a “Judge” in their local community and indicated that he had kept in touch with the family via Hossain Ahmed over the years. He remembers seeing the Applicant at the local mosque (in Australia) on numerous occasions.
[56] Applicant’s Evidence at Exhibit A4, dated 16 May 2021 in form of Statutory Declaration.
The Tribunal also received written submissions and took oral evidence from:
·Ziaul Hoque: a friend born in the same village who attested to knowing the Applicant there and maintaining contact with him in Australia;
·Sayed Kalam – husband of Tasmeen Bibi, born in the same township who attended school with the Applicant (one year apart) and maintained an on-going relationship in Australia;
·Abul Baser – another nephew who knew the Applicant in their hometown and who is in regular contact with his uncle “to meet each other and discuss about our family and his family”. He commented upon his uncle’s close association with the mosque both in Myanmar and Australia. Mr Baser also stated that he met the Applicant in Malaysia where he was working in various construction jobs.
·Sajida, a friend who gave similar testimony to Abul Baser, especially about the Applicant’s religious studies and attachments.
There is also a written Statutory Declaration (without oral confirmation) from Abulfatha Salamatulla in which he reports being at school with the Applicant (who was in a higher grade); being in the same class as the Applicant’s brother Mohammed Yunus and that a classmate of theirs, Mukaramah, actually married this younger brother.[57]
[57] Submissions, together with others not referenced are to be found in Part 4 of the Applicant’s material filed on 25 November 2020. All are in the form of Statutory Declarations of varying dates.
The Applicant’s Form 80
All applicants for citizenship are required to complete a Form 80 (Personal particulars for assessment including character assessment). The Applicant completed two such forms, one on 6 August 2017[58] and another on 27 January 2020.[59] In his analysis, the Delegate drew attention to a number of inconsistencies between these documents and other evidence as it related to the ages of the Applicant’s siblings.[60] The Delegate gave considerable weight to the inability of the Applicant to give consistent testimony as to the birth dates of his siblings or the spread over the years of their birth. Reviewing the Applicant’s testimony and various written submissions, it was the Delegate’s conclusion that:
Whilst I acknowledge your statement that you are not certain of dates, the level of inconsistency in your statements regarding your family composition is significant. I do not accept the reason for the differences is due to your inability to remember dates. It is reasonable to expect a person to remember the relative age of their family members even if the dates are unclear. There is a significant difference between a family with 5 siblings born one year apart and an age gap of up to 16 years.[61]
[58] T-documents at 45-62.
[59] Ibid at 89-107.
[60] Ibid at 19-21.
[61] Ibid at 21.
The matter of facebook
The Respondent has provided the Tribunal with numerous screenshots taken from the Applicant’s facebook page. There is no doubt that this posting of Yusuf Mohamed is that of the Applicant, as that can be established by their photographs. The only point of relevance made by the Respondent is that the Applicant shows his place of birth as “Honam, Myanmar”. This is a town in Shan state.
However, the entry also claims the Applicant went to “Navitas National High School” which is a facility in The Philippines, and that he works at “NS-Tech” which the Applicant does not.
Facebook entries may well, by photographic evidence, possibly establish the location of an individual or details of his/her associates, but anything else thereupon should be treated with suspicion. Even photographs are subject to photo-shopping and manipulation by those with the right skills and/or tools.
For the Respondent to seek to rely upon the sort of entries that people (for whatever inexplicable reasons and often as part of a fantasy world) post on facebook without further corroboration of their claims is to verge on insulting the intelligence of the Tribunal. To seek to invest such uncorroborated material with significant consequences, reminds the Tribunal of the exchange in Hamlet: [62]
Polonius: My lord, I will use them according to their desert.
Hamlet: God’s bodykins man, much better: use every man
after his desert, and who should ‘scape whipping?
[62] Act 2 scene ii.
THE RESPONDENT’S CHALLENGES
As noted above, the Respondent has raised questions about six items relevant to the establishment of the Applicant’s identity and each must be considered.
The Applicant’s date of birth and age
The best that can be said of this matter is that the Applicant himself genuinely has no precise idea of the date of his birth, or even the year.[63] In interviews he has consistently maintained a date in 1979 whereas the household registers suggest 1975. However, if they are false documents, then there is no reason to rely upon them as being definitive.
[63] Applicant’s Statutory Declaration dated 28 April 2020, T-documents at 141.
It is difficult for people brought up in the European traditions of Australia to appreciate that people may be unaware of, or indeed indifferent to, their date of birth because so much of our system of identification and social operations turn upon that – down to the point of legal rights often being age-dependent. By contrast, the First Nations people of Australia traditionally regard age as a largely irrelevant factor when what matters, for the purpose of identity is matters of kinship and country.
The Tribunal does not believe that the Applicant’s failure to be able to “prove” a date of birth, or even to be sure in his own mind of such a detail, is fatal to the question of establishing his identity.
Place of birth
There is a photograph of a family unit (not including the Applicant) which shows the Applicant’s parents and others which was taken on 12 October 2016 in Alel Than Kyaw village.[64] This appears to be a photograph taken in association with some form of official assessment of family households and its provenance and authenticity was not challenged by the Respondent.
[64] Applicant’s Evidence at Exhibit A9.
This photograph, together with the testimony of family members of members of the Rohingya community in Australia, and a respected Australian-Rohingya community elder such as Mr Seero Zafar, are sufficient to establish for the Tribunal that the Applicant was born, as he claims in Ali Thankyaw village, Maungtaw Township, Rakhine State, Myanmar.
The suggestion that the Applicant was born in or has some close association with the Shan state was raised by the Delegate arising from a reference to the town of Honam on the Applicant’s facebook page and some vague incapacity to remember natural disasters affecting both Rakhine and Shan states at various times.[65] This included reliance upon a reported conversation between the Applicant and some Detention Centre (Christmas Island) guards in which a Guard reported that the Applicant had made reference to an earthquake and possible damage to his house. This conversation took place on 28 March 2011 and there was certainly an earthquake on 24 March 2011 which primarily affected the Shan state.[66] The Applicant remembers some conversation with security guards, which took place in Urdu (not his primary language) but he denies making specific remarks about an earthquake or damage to his house. He believes the guards “must have misrepresented or misunderstood some of my conversation”.[67]
[65] T-documents at 22 and copy of Christmas Island security staff report of 28 March 2011 at Respondent additional submission. Exhibit R1.
[66] https:/en.wikipedia.org/wiki/2011_Myanmar_earthquake.
[67] T-documents at 142.
In his decision the Delegate held that ‘the information you have provided… does not demonstrate that you are not from Shan state”. The Tribunal does not accept that the Applicant must prove this negative, to make an assertion requires substantiation by the Respondent which is not forthcoming.
Similarly, an entry in a November 2009 biodata report completed on Christmas Island to referring to living in “Saitowe”[68] (taken by the Department to mean “Sittwe” the capital of Rakhine[69]), is something of a misrepresentation of the documentation. In that biodata report, the Applicant gives that reference in this context:
Previous addresses: 01.03.79: Mun Dow. Saitowe. Myanmar.
[68] Respondent’s Tender Bundle at 200.
[69] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [34].
However, in the same document he gives:
Place of Birth: 01.03.79 – Ali Tango – Mun Dow.
Again, the Delegate “did not accept that he (the Applicant) was not born in Sittwe”[70] hence unfairly requiring the Applicant to prove a negative.
[70] Idem.
None of these concerns detract from the Tribunal being positively satisfied that the Applicant’s place of birth was as stated above.
Education record
The Applicant has provided extensive details of his studies at school in his home village which have been corroborated by other witnesses who either also attended that school or were in a position to observe his education there. He also studied in a madrassa both in Myanmar and Bangladesh and he was known in his village as a religious scholar (Molive)[71].
[71] Respondent’s Tender Bundle at 43.
There is a general consistency in the Applicant’s various accounts of his education drawn from his entry interview and documentation of 3 December 2009; his Protection Visa application of 1 April 2011 and his statement in support of his Partner Visa application of 3 September 2013.[72]
[72] Respectively at T-documents 3-5, 39-40; Respondent’s Tender Bundle at 14-23; Supplementary T-documents at 147; also at Respondent’s SFIC at [46]-[49].
The Respondent draws attention to part of his January 2020 Form 80 in which he indicates that from 1988 to 1991 he attended “no school due to crackdown on democracy uprising”.[73] The Applicant responds that this comment applies only to state schools which were closed and not to privately-run religious madrassas which stayed open. The Tribunal accepts this explanation which was corroborated by other witnesses.
[73] T-documents at 93.
Family composition
The Tribunal has addressed this issue above and while it accepts the Respondent’s proper concerns that the Applicant has given various versions of his family composition, those versions differ essentially only in the recall of the birth dates of his siblings.
The Tribunal is satisfied that the Applicant has been forthright in naming the members of his family, alive and deceased and that he has given the correct birth order for each of them.
Date of departure from Myanmar
There appears to be general acceptance that the Applicant left Myanmar in the year 1991 and that it was some time “after the cyclone”. This catastrophic event took place on 28-29 April 1991 and was one of the largest and deadliest tropical cyclones on record, causing some 139,000 deaths. It was centred in the Bay of Bengal and devastated large parts of Bangladesh and Northern Myanmar.[74]
[74] En.wikipedia.org/wiki/1991_Bangladesh_cyclone.
The question is whether the Applicant left some “4 to 6 months later” as he told the Tribunal , or “shortly after cyclone entered Maungdaw” as he wrote in April 2020[75], or more than a year later on 20 December 1992, as written in his statement of September 2013.[76] The Tribunal is prepared to accept that 20 December 1992 should have been written as 20 December 1991 and hence the question comes down to a matter of a few weeks at the end of that year. Although the (probably bogus) household register records a date of March 1991 for the time the Applicant “ran away”, the Tribunal places no weight on the March date but notes that it still gives the year as 1991.
[75] T-documents at 141.
[76] Supplementary T-documents at 147.
To the extent that the Respondent states: “[t]he Applicant has provided relatively consistent accounts about when he left Myanmar (in 1992/1993)”[77] this appears to be a misunderstanding of the material before it. There is nothing in any documentation to suggest that 1993 is a relevant date.
[77] Respondent’s SFIC at [50].
Again, the Tribunal is prepared to give the Applicant the benefit of the doubt on the basis that all the witnesses asked to comment on his date of departure put it in relation to the cyclone and closely after that event.
Holding a formal identity card
The Applicant is forthright in denial, saying “I never had any form of Myanmar identity document except for being listed on the household list.”[78]
[78] T-documents at 140.
The Respondent draws attention to the Burmese Driver’s Licence which, although obtained fraudulently appears to contain some sort of identity number given as AKB009191.[79] The Applicant replies that he never had a white card as he left Myanmar as a child (born 1975/79 left 1991 – age 12/16) and one was never issued to him.[80] The Tribunal also notes that if he did hold such a card and, as advised AK or AKB apparently represents issuing in Rakhine state, then the Respondent’s claim of Shan state birth is rendered even less credible.
[79] Ibid at 178-179.
[80] Ibid at 141.
If the Respondent is prepared to advance the argument that the obtaining of a false Driver’s Licence should be held against the Applicant, then reliance upon information in that false document becomes a difficult proposition to sustain.
While the document in question was used to obtain a NSW Gold Driver’s Licence, the Applicant was already in possession of a Provisional Licence prior to that date which he must have acquired without reliance upon any form of Burmese documentation.
DISCUSSION
The Minister very properly states that the Tribunal must have a high degree of satisfaction as to the identity of an applicant to accept that the test in subsection 24(3) of the Act is met. The exhortations in the Explanatory Memorandum have been quoted supra and must guide decision-makers.
In Beyan the Tribunal identified the principle at issue here, namely the responsibility of the Tribunal in the face of uncertainty. It stated:
Here, the Tribunal is faced with a situation where it cannot be certain of the Applicant’s identity to the standard expected for the conferral of Australian citizenship. As submitted by the Minister, a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.[81]
[81] Bayan and Minister for Immigration and Border Protection [2015] AATA 256 at [38].
In Sinnathamby and Minister for Immigration and Border Protection, the Tribunal said clearly that:
Essentially, therefore, in this matter, the Tribunal, standing in the shoes of the Minister, must be persuaded to a degree of reasonable satisfaction that something is so, and the degree of satisfaction may vary according to the consequences that flow. In this case, the Parliament has decided that being reasonably satisfied of a potential citizen’s identity is essential, because flowing from that is a range of significant rights, responsibilities and privileges.[82]
[82] Sinnathamby and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2579 at [56].
I made the position clear in Boshra Al-Hussaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs that where there are doubts as to the applicant's identity, the applicant's citizenship application should not be approved. I stated:
The evidence is just not persuasive enough one way or the other to allow a definitive determination of the other questions. The Respondent has a strong case in raising the doubts which it does about the various claims made by the First Applicant. Equally, the First Applicant has plausible explanations and responses to some of those expressed doubts.
The Tribunal accepts the point made in Dhayakpa that:
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.[83]
However, it has to be said that in this matter, it is only by the production of some documentation that the divergent claims and assertions can be settled in a way which does not potentially compromise the integrity of the citizenship process.
What this clearly leads to is a conclusion that, for the purposes of s 24(3) of the Act, the identity of the First Applicant cannot be established with the degree of satisfaction necessary to meet the requirements of legislation and policy and hence she cannot be granted citizenship by conferral.[84]
[83] Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117].
[84] Al-Hussaini and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1267 at [100]-[103].
However, the matter in Boshra Al-Hussaini is distinguishable from this matter because, in the former case there was real doubt as to whether the applicant was the person she claimed to be or was in fact entirely another (but related) person. She failed the test of “contrast” in this regard. There is no suggestion in this instance that the Applicant is some other person than the one he claims to be.
There is a balancing element in this. In Boshra Al-Hussaini, I said:
The evidence is just not persuasive enough one way or the other to allow a definitive determination of the other questions. The Respondent has a strong case in raising the doubts which it does about the various claims made by the First Applicant. Equally, the First Applicant has plausible explanations and responses to some of those expressed doubts.[85]
[85] Ibid at [100]. Emphasis added.
The fact that decisions often cannot be absolute but must be made on balance is reflected in my comment in Adalat that:
Consideration of the material before the Tribunal leads it to a clear conclusion that the identity of the Applicant as Mahmoud Adalat is not established to any reasonable degree of satisfaction and that, as a result, the Respondent cannot be sufficiently satisfied of that identity to approve a grant of citizenship. The Respondent must therefore refuse the application.[86]
[86] Adalat and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3360 at [64]. Emphasis added.
Similarly, in CDNB, the Tribunal observed:
I proceed on the basis that production of documentation to establish identity is not legally essential, but where such evidence is not produced for the grant of citizenship, there will need to be a cogent and acceptable explanation as to why, in order for me to reach a state of positive satisfaction of the identity of the applicants. Furthermore, I must form a view that other evidence given by the applicants as to their personal background must be reliable.[87]
[87] CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 at [9].
In Ahamod the Tribunal was engaged in a balancing exercise and found against the applicant stating:
The Tribunal finds that there are too many inconsistencies in the evidence going to the identity of the Applicant.[88]
[88] Ahamod and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 7 at [102].
In its SFIC (at paragraph 29) the Respondent placed emphasis upon the statements of Dixon J (as he then was) in Briginshaw in relation to establishing proof of identity. His Honour therein stated:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes.
…But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[89]
[89] Briginshawv Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362.
However, the Tribunal itself has adopted a qualified approach to the use of the Briginshaw test as it made clear in CDNB:
In Sullivan v Civil Aviation Safety Authority, the Full Federal Court rejected the notion that the Tribunal is bound to apply the decision in Briginshaw when making findings of fact that are ‘grave or serious’, but “may inform itself – and in some circumstances should inform itself – by reference to evidence or other materials which properly support the seriousness of the findings being made and the seriousness of those findings upon a party”. While I accept the Respondent’s point that the grant of Australian citizenship is a serious issue, I do not purport to apply the ‘rule’ or ‘principle’ in Briginshaw having noted the analysis of the Full Federal Court in Sullivan. This review is concerned with the identification of evidence or other material that may properly satisfy me as to the identity of the CDNB and WLVM, in the context of a grant of Australian citizenship.[90]
[90] CDNB and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 757 at [6]. Citation omitted.
Clearly, for the Tribunal to be “reasonably satisfied” in its conclusions about identity, and although it is not bound by the strict rules of evidence[91], it cannot be capricious in its assessments but must have some solid evidentiary basis for its findings.[92]
[91] Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c); Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 141 ALD 540 at [115].
[92] Sherpa & Anor v Minister for Immigration & Anor [2020] FCCA 2988 at [42].
There are clearly inconsistencies in the Applicant’s application. The question becomes whether or not they are fatal to that application and raise sufficient doubts about his true identity.
The Applicant cannot be assisted by any biometric evidence from among the three pillars of identity.
In relation to documentary evidence, none of its can be taken to be positive in its confirmation of the personal identity of the Applicant and in some respects, while it generally supports his claims about family composition, the absence of the name of his elder sister (nor Bibi) from any of the documents is unfortunate. In this respect, the UNHCR documentation is of more probative value.
The Tribunal is thus left primarily reliant upon an assessment of the life story elements of the pillars of identity.
There is a degree of consistency in the basic narrative of the Applicant’s life which has not been fatally undermined by any of the Respondent’s claims. The Respondent’s SFIC itself reflects some acceptance of a level of narrative consistency and the Tribunal notes a comment from the Citizenship Assurance Officer in the Department’s Parramatta office to the effect that:
At the moment, I am leaning towards finding the applicant’s identity as supported – based primarily on the consistency of the applicant’s story which is supported by the existence of the applicant’s nephew.[93]
[93] Applicant’s Evidence at Exhibit A11. This is contained in an email between various officers of the Department which was obtained by the Applicant as part of a formal Freedom of Information application. It is dated 17 August 2017 and related to the Applicant’s application for partner sponsorship.
For the Tribunal to disbelieve the Applicant it would have to conclude that:
(a)the Applicant has lied under oath about critical elements of his identity;
(b)his father, mother and brother have lied under oath about relevant aspects of the Applicant’s life story; and
(c)the statutory declarations and the oral evidence of a number of members of the Rohingya community, several of whom are either/both Australian citizens/community elders should be taken to be either false and/or deliberately misleading.
That is a bridge too far for the Tribunal.
For all of that to be the case, there would have to be in effect, an organised conspiracy of some sophistication. There is no basis for such an assumption.
To be positively satisfied of the Applicant’s identity does not, as the Tribunal understands it, mean to be one-hundred percent free of doubt. That is a standard which would almost by definition prejudice all applications from people coming from conflict zones, refugees or people otherwise unable to secure formal documentation, especially from regimes hostile to them on the basis of their race, ethnicity, religion sexuality or other intrinsic identity.
An identity test based upon standards which involve consideration of matters such as family history, personal identification and community recognition is the standard recognised by the Courts of Australia in matters such as establishing Australian Aboriginality.[94]
[94] Mabo v Queensland [No 2] (1992) 175 CLR 1 at [70].
To the extent that the Tribunal is prepared to believe the sworn testimony of the witnesses who appeared before it, and to the extent that the doubts raised by the Respondent, although being of some validity, are not fatal, the Tribunal has reached an adequate degree of positive satisfaction as to the identity of the Applicant.
The Respondent has raised a further issue related to the provision of false or misleading information to the Department.[95] This Tribunal has noted on a number of occasions that this is a serious matter and not something to be countenanced.[96] However, in this instance, the matter goes more to a question of “good character” than to a matter of identity. To the extent that this may engage a consideration of section 21(2)(h) of the Act is a matter for potential determination in another time and place.
[95] Respondent’s SFIC at [72].
[96] Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082; Ghumaan v Minister for Home Affairs [2019] AATA 200.
The Tribunal concludes that the Applicant is Mohammed Yusuf and that he was born on 1 March 1979 in Sanga Para sub-village, Alei Than Kyaw village in the township of Maungdaw (Hashu Rata) in the Rakhine state of Myanmar and is by ethnicity, a member of the Rohingya community who has been rendered stateless by the Myanmar authorities.
It does not follow from this that the Applicant’s application for citizenship will automatically be granted. All this decision does is allow the Applicant to pass the first hurdle in the process of the assessment of his application. There are further hurdles which he must surmount to be successful which are set out in the Act, but at least these can now be engaged.
DECISION
The decision under review is set aside and remitted to the Minister to be reconsidered according to the finding that the test of the Applicant’s identity has been satisfied.
I certify that the preceding 149 (one hundred and forty -nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...................................[sgd].....................................
Associate
Dated: 2 July 2021
Date(s) of hearing: 17 and 18 May 2021 Solicitors for the Applicant: Mr D Taylor, Sydney West Migration Solicitors for the Respondent: Mr M Gao, Australian Government Solicitor
3
16
0