ZVNT, GNGJ, SWQL and MFYW and Minister for Immigration and Border Protection (Citizenship)

ZVNT, GNGJ, SWQL and MFYW and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3045 (17 August 2018)
Division:GENERAL DIVISION
File Number: 2017/3730, 2017/3735, 2017/3732, 2017/3736
Re:ZVNT, GNGJ, SWQL and MFYW
APPLICANTS

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Member C Edwardes

Date:17 August 2018
Place:Perth

The Tribunal affirms the decision of the Minister’s delegate
..............................................................
Member C Edwardes
CATCHWORDS
Myanmar refugees - applications for citizenship refused – prohibition to approve a person becoming an Australian citizen unless the Minister is satisfied of the identity of the person - whether Tribunal satisfied of identity of Applicants – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – s 21(2), s 21(5), s 24(3), para 52(1)(b)
Administrative Appeals Tribunal Act 1975 – para 43(1)(a)
CASES
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
Confidential v Minister for Immigration and Citizenship [2013] AATA 144
Dhayakpa v Minister for Immigration and Border Protection [2015] AATA 310
YMPL and Minister for Immigration and Border Protection [2017] AATA 1458
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, Country Information Report, Myanmar, 10 January 2017
Department of Immigration and Border Protection, Australian Citizenship Policy, at 1 June 2016
Department of Immigration and Border Protection, Citizenship Policy, at 1 June 2016
Explanatory Memorandum, Australian Citizenship Bill 2015 (Cth)
The Lutheran World Federation, Submission to the Universal Periodic Review Working Group, 2-3 November 2015
Unicef, Lives on Hold: Making sure no child is left behind in Myanmar (May 2017), 7 <
REASONS FOR DECISION
Member C Edwardes
17 August 2018
THE APPLICATION

Pursuant to section 24(3) of the Australian Citizenship Act 2007 (Citizenship Act), the Tribunal is asked to determine whether each of the Applicants is prohibited from becoming an Australian citizen. The Tribunal must not approve the Applicants becoming Australian citizens unless the Tribunal is satisfied of the identity of the Applicants.
BACKGROUND
The Applicants are ZVNT, MFYW, their daughter (SWQL), and son (GNGJ).
The Applicants are a family who applied for citizenship together. The Applicants were each challenging separate decisions of a delegate dated 29 May 2017 that refused the Applicants’ applications for citizenship. In each of these decisions, the delegate was prohibited from approving the Applicants’ applications on the basis that the delegate was not satisfied of the Applicants’ identities.
A Direction dated 14 August 2017 was issued by the Perth District Registrar directing that the Applicants’ separate applications (application numbers 2017/3730, 2017/3732, 2017/3735 and 2017/3736) be joined and programmed together.
A hearing occurred on 11 June 2018. The Tribunal adjourned this hearing to a later date, (30 July 2018), as MFYW, SWQL, and GNGJ did not attend the hearing. The Tribunal issued directions for the Respondent to provide further submissions, and took the opportunity to facilitate an interpreter for the next hearing.
ZVNT and MFYW attended the hearing scheduled on 30 July 2018.
The Family
ZVNT and his family arrived from Myanmar through Malaysia in 2012. (1)(R2)
On 28 February 2012, ZVNT and his family arrived in Australia with Refugee and Humanitarian (Class XB) Subclass 200 visas. (1)(R2)
ZVNT filed an application for citizenship dated 7 May 2016 and included SWQL, and GNGJ as part of this application.[1] (T6 83)(R1)
[1] Reference to T-documents in relation to ZVNT refer to T-documents from ZVNT’s initial application, reference number ‘2017/3730.’
ZVNT produced a West Australian driver’s licence, document for travel to Australia, Australian government issued health care card, his response to additional questions by the Department of Immigration and Border Protection (the Department), received 24 November 2016, an uncertified copy of his certificate of marriage dated 2 December 2006, an uncertified copy of “International Organization for Migration (IOM) Intensive Cultural Orientation Course Certificate” dated 28 March 2012, and an uncertified copy of Kumpulan A.C.T.S Community Healthcare Co-ordinators Training Programme participation certificate dated 21 - 23 January 2011 from Malaysia. (T2 11)(R1)
On 7 June 2016, the Department wrote to ZVNT advising him that his application was invalid as he had not paid the correct fee, and that had provided insufficient documentation. (T7 93)(R1)
ZVNT was asked to provide certified copies of at least 3 of the following documents containing his:
·photograph
·signature
·current address
·date of birth and birth name
·proof of change of name, if applicable
·proof of identity declaration
ZVNT was advised that any foreign language documents must be accompanied by English translations. (T7 93-95) (R1)
On the 18 November 2016, ZVNT attended a test appointment interview at the Department’s Perth office and was asked to provide documents including but not limited to his:
·National identity card
·Military service card
·Birth certificate
·Family register
·Marriage certificate
·School records
·Expired driver’s licences
·Expired passports or travel documents. (T2 12)(R1)
A delegate of the Minister wrote to ZVNT on the 29 May 2017, advising him that his application for citizenship was refused. The delegate stated: “I am prohibited from approving your application as I am unable to be satisfied of your identity. This is in accordance with subsection 24(3) of the Act.” (T2 11) (R1)
In the Department’s decision record, dated 29 May 2017, the delegate of the Minister stated “to date you have not provided any original documents, certified copies of documents or any NAATI translations of documents, as requested.” (T2 12)(R1)
ZVNT was assessed for citizenship against requirements for citizenship under section 21(2) of the Citizenship Act. He satisfied sections 21(2)(a), 21(2)(b), 21(2)(c), 21(2)(d), 21(2)(e), 21(2)(f), 21(2)(A) and 21(2)(g) of the Citizenship Act. Section 21(2)(h) of the Citizenship Act was not assessed and section 24(3) of the Citizenship Act (stating that “The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person”) was assessed as “prohibition applies.” (T2 11-16)(R1)
ZVNT’s citizenship application also contained SWQL’s document for travel to Australia (T6 91), GNGJ’s document for travel to Australia (T6 92), responses to additional questions by the Department, an uncertified copy of a marriage certificate from Myanmar and uncertified training certificates from Malaysia. (T2 12)(R1)
The Delegate of the Minister assessed SWQL as a dependent child applicant. SWQL was included in ZVNT’s application.[2]
[2] References to T-documents in relation to SWQL refer to T-documents from SWQL’s initial application (reference number ‘2017/3736’).
The Delegate of the Minister advised that SWQL satisfied section 21(5) of the Citizenship Act; however the prohibition to approve her becoming an Australian Citizen under s 24(3) of the Citizenship Act also applied for the same reasons as her father, ZVNT. (T2 15)(R1). SWQL’s assessment was based on the Department’s Citizenship policy guidelines under the heading “Relevant considerations for children under the age of 16 applying in their own right.” (T2 14)(R1)
MFYW lodged a separate application for citizenship on 7 July 2016.[3]
[3] References to T-documents in relation to MFYW refer to T-documents from MFYW’s initial application (reference number ‘2017/3732’).
MFYW produced a West Australian driver’s licence, document for travel to Australia, Australian government issued health care card, responses to additional questions by the Department received 24 November 2016, an uncertified copy of marriage certificate dated 2 December 2006, an uncertified copy of IOM Intensive Cultural Orientation Course Certificate dated 28 March 2012, 4 uncertified copies of documents that were untranslated, undated and stamped ‘Hospital Kuala Lumpur,’ 2 uncertified copies of documents that were dated 21 July 2011 – these were untranslated and stamped ‘Dr M Sivasangkari, Hospital Kuala Lumpur,’ and an Australian Federal Police National Police Clearance Certificate. (T2 12)(R1)
MFYW was assessed for citizenship against requirements for citizenship under section 21(2) of the Citizenship Act. She satisfied sections 21(2)(a), 21(2)(b), 21(2)(c), 21(2)(d), 21(2)(e), 21(2)(f), 21(2)(A) and 21(2)(g). Section 21(2)(h) was not assessed and section 24(3) (“The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person”) was assessed as “prohibition applies.” (T2 12-17)(R1)
On the 29 May 2017, MFYW was advised that her application had failed because the Department was not satisfied that the documents she produced validated her identity. (T2 12)(R1)
GNGJ formed part of ZVNT’s application as a dependent child applicant. His application contained an uncertified and untranslated birth certificate that was issued by the Malaysian government, document for travel to Australia, and responses to additional questions by the Department (received 24 November 2016). The Department advised that GNGJ satisfied section 21(5) of the Citizenship Act, however the prohibition to approve him becoming an Australian Citizen applied pursuant to section 24(3) of the Citizenship Act.
In the decision record relating to GNGJ’s application, the Delegate of the Minister stated, “While I am not satisfied of your identity, I am satisfied that the information I have taken into consideration when making my decision is related to you, as a dependent child of the main application, MFYW.” The delegate further stipulated; “… the prohibition set out in subsection 24(3) for your mother, main applicant MFYW also applies to you, as a dependent child applicant…” (T2 12)(R1).[4] This issue was discussed at the hearing on 30 July 2018.
[4] References to T-documents that are relevant to GNGJ refer to T-documents from of her initial application (reference number ‘2017/3735’).
Each member of the family sought review to the General Division of the Administrative Appeal Tribunal on the 27 May 2017.
The jurisdiction to hear this matter is derived from section 52(1)(b) of the Citizenship Act.
As mentioned earlier in this decision, this matter was heard in Perth on 11 June 2018 and 30 July 2018. On 30 July 2018, ZVNT and MFYW appeared in person. The Respondent was represented by Mr Gerrard. An interpreter assisted the Applicants.
RELEVANT LEGISLATION AND PRINCIPLES
Section 24(3) of the Citizenship Act provides that the Minister must not approve an Applicant becoming an Australian citizen “unless the Minister is satisfied of the identity of the person”.
The Explanatory Memorandum to the Australian Citizenship Bill 2005, (which was ultimately enacted as the Citizenship Act) states: “There 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”.
Chapter 5 of the Department’s Australian Citizenship Instructions (ACIs) sets out the relevant legislative requirements and policy guidelines for Australian citizenship by conferral. The ACIs state that “in addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.”
Further, the ACIs state (at 5.27.1), under the heading “Minister’s decision (s24) – summary,” that: “There are a number of circumstances where an application for citizenship by conferral must not be approved. These relate to: identity…”
The Tribunal is also aware of the Attorney-General’s Department’s National Identity Proofing guidelines which are reflected in chapter 13 of the Department’s Citizenship Policy. The Guidelines observe “that a person’s identity is not a fixed concept; it is highly dependent on context”.
ISSUE
The issue for determination by the Tribunal is whether ZVNT, MFYW, SWQL and GNGJ satisfy section 24(3) of the Citizenship Act.
The Tribunal accepts that in circumstances where identity cannot be satisfactorily produced or a decision maker is not satisfied as to the Applicant’s identity, the Citizenship Act prohibits the approval of a person becoming an Australian citizen.
EVIDENCE
The Tribunal received the following:
·Exhibit A1 – Statutory Declarations of ZVNT dated 27/10/2017) and MFYW (dated 31/10/2017).
·Exhibit A2 – Marriage certificate of ZVNT and MFYW.
·Exhibit R1 – T documents of ZVNT (T1 to T10, page 1 – 135), MFYW (T1 – T9, page 1 – 111), SWQL (T1 to T10, page 1 – 134) and GNGJ (T1 – T9, page 1 – 109).
·Exhibit R2 – Respondent’s Statement of Facts, Issues and Contentions dated 2 March 2018.
·Exhibit R3 – Respondent’s Further Submissions dated 9 July 2018
·Exhibit R4 – Hearing Certificate dated 6 February 2018.
Having reviewed all the evidence before it, the Tribunal is satisfied both parties were provided an opportunity to address the evidence. Relevant aspects of the evidence are referred to below.
The Respondent contends:
28. that the Tribunal is faced with an application where it cannot be certain of the applicants’ identity to the standard expected for the conferral of Australian citizenship. A certificate of Australian Citizenship is a legal document of considerable significance: see Beyan at [38]. The Tribunal should not countenance an outcome which could lead to certificates being issued in circumstances where, as here, the identity of the applicants is far from clear.
29. In the cases of all of the applicants, sufficient documentation has not been provided which should lead the Tribunal to conclude that it can be satisfied as to their identity to the requisite degree.
30. The respondent contends that having regard to the country information it is reasonable to expect the applicants to produce any or all of the following evidence:
30.1. Birth certificates for ZVNT, MFYW and SWQL having regard to the fact that a birth certificate is required to be added on to a Household Registration list; and
30.2. Citizenship Scrutiny Cards (pink cards) for ZVNT, MFYW and SWQL having regard to the fact that the applicants are said to be Myanmar citizens.
31. Furthermore, in light of the concerns expressed by DFAT in respect of the prevalence of fraud. The Department should have the opportunity to examine the original copies of these documents should the applicant provide them.
(Emphasis added)
32. The respondent acknowledges that there are circumstances where an applicant should not be required to produce documents appropriate to an established society: Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 at [117]; YMPL and Minister for Immigration and Border Protection [2017] AATA 1458 at [34]. In this case, having regard to the high standard of satisfaction required for Australian citizenship, the applicants have not provided evidence which the country information indicates should be available.
33. Furthermore, the respondent contends that what is strikingly absent from the statutory declarations provided by ZVNT and MFYW is any explanation of the attempts the applicants have made to obtain documentation from Myanmar. There is simply an unsupported assertion that it is “impossible” for them to obtain birth certificates. There is certainly no evidence that the applicants have “exhausted [their] avenues of search for such documentation”: see Confidential and Minister for Immigration and Citizenship [2013] AATA 144 at [27].
34. Finally, the respondent acknowledges that the issue of GNGJ’s identity raises different questions in light of the fact that he was born in Malaysia and has produced a Malaysian birth certificate. Nevertheless, no evidence or explanation has been provided which explains what documentation was produced to obtain the Malaysian birth certificate. In light of the concerns raised above, the respondent contends that the Tribunal should be cautious in accepting the Malaysian birth certificate as determinative.
35. In these circumstances, the respondent contends that the each of the applicant’s identity is unclear and cannot be satisfactorily ascertained. (R2)
The Respondent has provided the following country information in respect to Myanmar:
Relevantly, the DFAT Report provides the following information in respect of the importance of Household Lists. At 5.22 – 5.25 it provides: (R1)
Household registration is required to obtain identification documentation and to gain access to services such as electricity and water. Household lists are also used by townships for population estimates. Township Administration offices administer household lists. If a member of a household wishes to change their registration, the formal process is for the head of the household to go to the township and have them removed. The household member would then be issues [sic] with a relocation notice. This notice, together with money and other identification documents, are then taken to the Township Administration office in the person’s new location where they are then added to the list for their new household. The types of documentation and the amounts of money required for this process vary across different jurisdictions.
When a baby is born, their birth certificate is required to add them to their household list. Each household must have an officially nominated ‘head’. While this is largely now just a tradition, at times the household head can be called upon to represent the household.
It is rare for a citizen of Myanmar who is resident in the country to not be registered on a household list. If a person is found to be unregistered, the penalty is a maximum of seven days’ detention at the police station, during which time the person must prove they belong to a household and have the head of the household come to register them on their household list”.
[Emphasis added]
The Secretary claims this substantiates the requirement that a birth certificate is required for the purpose of being added to the ‘Household List’
The Respondent refers to the 2017 Department of Foreign Affairs and Trade Report (DFAT Report) and further contends in respect to identity material:
The DFAT report also provides the following information in relation to identity documentation at 5.42 – 5.43
In 1989 the government began a process to implement the 1982 Citizenship Law which involved replacing the previous National Registration Cards (NRCs) with a new series of identification documents. Under the 1982 law, the government issues full Myanmar citizens with Citizenship Scrutiny Cards (CSCs, also known as ‘pink cards’), naturalised citizens with Naturalised Citizenship Scrutiny Cards (NCSCs or ‘green cards’), and associate citizens with Associate Citizenship Scrutiny Cards (ACSCs or ‘blue cards’).
Non-citizens are typically issued with Foreign Registration Certificates.
The CSCs issued to full citizens contain information including the bearer’s photo, name, father’s name, nationality, religion and occupation. The identity cards take the form of a pink credit card-sized document, made of stiff card and sometimes laminated. Forgeries are reportedly difficult to distinguish from genuine documents. The identity card grants relative domestic travel within Myanmar and can be used to access some services, including voting and government schooling.
At [paragraph] 5.46 the DFAT Report states:
Household registration is required to obtain a CSC, and to gain access to some services such as electricity and water.
The DFAT Report also notes that there is a high prevalence of document fraud in Myanmar at 5.50:
Document fraud is highly prevalent in Myanmar. Fraud can take the form of fake documentation, or genuine documentation provided on the basis of fraudulent information. The prevalence of corruption in Myanmar means that fake documentation can be purchased with relative ease. As noted above, the unsophisticated nature of CSCs, ACSCs and NCSCs means that fake documents are relatively easy to produce. While passports have more sophisticated security features, it is possible to obtain a genuine passport using a fake CSC. (R2)

ZVNT and MFYW stated in statutory declarations dated 27 and 31 October 2017 respectively: (A1)
ZVNT’s statutory declaration states:
I am writing this statement regarding the requirement for my identity since birth which has been required for my Australian Citizenship Application. Since I was born in Myanmar, I have never had a Birth Certificate. Due to the war, I had to escape from my home country to Malaysia in March 2007. At that time, my wife was pregnant, and she gave birth to my daughter – SWQL in 2007 in Myanmar. Similar to my case, my daughter also has never had a Birth Certificate. My wife arrived Malaysia [sic] with my daughter in 2009. In 2012, we arrived Australia as refugees under Visa 200, which made us unable to ask for any assistance from Myanmar. For these above reasons, it is impossible for me and my daughter to obtain our Birth Certificates from our home country.
MFYW’s statutory declaration states:
I am writing this statement regarding the requirement for my identity since birth which has been required for my Australian Citizenship Application. Since I was born in Myanmar, I have never had a Birth Certificate. Due to the war, I had to escape from my country of origin to Malaysia in May 2009 with my daughter – SWQL. We united with my husband who fled in March 2007 as I was pregnant when he escaped. Similar to my case, my daughter also has never had a Birth Certificate. In Malaysia, our second child – GNGJ was born in 2010. Please kindly find attached his original and translated Birth Certificates. In 2012, we arrived in Australia as refugees under Visa [sic] 200, which made us unable to ask for any assistance from Myanmar government.. For these above reasons, it is impossible for me and my daughter to obtain our Birth Certificates from our home country.
At the hearing on 11 June 2018, The Tribunal raised issues in relation to following country reports:
(a)Lutheran World Federation: Submission to the UN Universal Periodic Review, 2 - 3 November 2015 (the 2015 LWF report); and
(b)Lives on Hold: Making sure no child is left behind in Myanmar, UNICEF, May 2017 (the 2017 UNICEF Report).
The Respondent’s further submissions mention paragraphs 12 to 14 of the 2015 LWF report:
According to UNICEF, 3 out of 10 children under 5 in Myanmar had no birth certificate. While most children in Yangon are registered, 76% of children in Chin State do not possess a birth certificate and 35% of children affected by armed conflict are unregistered. Among other things, this has major implications for obtaining a Citizen Scrutiny Card (CSC) which is the main document confirming the legal identity of an individual.
Although the government has taken some steps since 2014 to address this issue and improve the birth registration system at all levels, challenges still remain. The field survey conducted showed that major barriers to birth registration; limited government capacity; time and cost implications and the inconsistent management of the registry system by the Government Health Department and other responsible departments. Furthermore, community members consulted reported that many midwives, even where the system is functioning, refuse to issue a birth certificate to children delivered without their direct support or when a child is born outside their assigned area.(1)(R3)
The 2015 LWP report goes on to state at paragraphs 14 to 16:
Due mainly to the issues relating to birth registration, a large number of Myanmar’s population do not possess the CSC even when they are legally entitled to one under the Citizenship Law. This includes, but is not limited to, those who live in remote and non- government controlled areas.
The Immigration and National Registration Department launched its “Moe Pwint” project in 2011, which aims to provide a CSC to all individuals that are entitled to one so that they can participate in the 2015 general elections. Challenges still remain to achieve this, particularly due to poor awareness of the importance of having a CSC; lack of clear procedures on how to obtain CSC; limited government capacity; time and cost implications (despite the government advertising it as a one-stop service with no costs); the lack of information about the campaigns; and inconsistent application and management of the legal registry system by the Immigration Department. (2)(R3)
The Respondent has submitted:
LWF REPORT
3. This report is said to be based on primary data collected from field surveys, focus group discussion and individual interviews including 16 consultations which took place between November and December 2014 (2015 LWP report at [1])....
…
6. The respondent contends that the 2015 LWP report is not inconsistent with the 2017 DFAT report nor does it provide an answer to the central question of why the applicants have not provided either a birth certificate or a Citizenship Scrutiny Card.
7. Indeed, the 2015 LWP report indicates that the Myanmar authorities are engaged in a process to assist citizens in gaining a Citizenship Scrutiny Card if they are entitled to receive one. (1-2) (R3)
2017 UNICEF REPORT
8. While the 2017 UNICEF report considers the difficulties faced by residents of Kachin State, the report does not identify any difficulties with obtaining legal documentation. This is to be contrasted with its analysis of the situation for Muslim residents of Rakhine State where the report states at [15]:
The [Advisory Commission on Rakhine State] also recommended a comprehensive, door-to-door, birth registration campaign that would reach and register all children in the state. It pointed out that birth registration of Muslim babies came to an almost complete stop after the violence in 2012, with the result that many Muslim children – and some Rakhine children – possessed no birth certificates.
“The Government has broadly welcomed the Commission’s findings, which is a very positive step”, said Justin Forsyth. “UNICEF stands ready to work with the authorities to implement vital measures that will benefit children from all communities in Rakhine State
9. The 2017 UNICEF report is of limited assistance to the Tribunal as it provides no information which would suggest that Christians who lived in Kachin State faced the same difficulty with birth registration as Muslims in Rakhine State. In any event, the 2017 UNICEF report is indicative of a government which is broadly amenable to increase registration. (2)(R3)
The Respondent further stated:
10. In this matter, the applicants have produced evidence that ZVNT, MFYW and SWQL are registered on a Household Registration List. As a result, they are not “unregistered” in the sense identified in the 2015 LWP report.
11. Two conclusions flow from the Household Registration List;
11.1. Firstly, according to the 2017 DFAT report a birth certificate is required to enter a name on a Household Registration List. It follows, that ZVNT, MFYW and SWQL should be able to produce birth certificates.
11.2. Secondly, As [sic] a result of being registered on a Household registration list they should have been issued with Citizenship Scrutiny Cards (pink cards). It follows that they should be able to obtain these documents if they now apply for them from the Myanmar authorities.
12. There is nothing in either the 2015 LWP report or the 2017 UNICEF report which is inconsistent with this.
13. The respondent submits that where credible country information identifies the type of documentation that should be expected to be produced or be obtained, that documentation should be produced. Where it is not, then an acceptable and credible explanation should be provided as to why it has not been produced including evidence of attempts to obtain documentation.
14. In this regard, the respondent refers to the recent decision of CDNB and Minister for Immigration and Border Protection [2018] AATA 757 per Member Kennedy at [9] the 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 [the Tribunal] to reach a state of positive satisfaction of the identity of the applicants
15. What is strikingly absent from the applicant’s evidence is any detail of any attempts to obtain documentation.
16. The authorities are clear that while a person from a disrupted society is not expected to produce the same level of documentation as those from countries with bureaucracies like Australia, nevertheless efforts must be made, and evidence of efforts being made must be demonstrated, In Confidential and the Minister for Immigration and Citizenship [2013] AATA 144 (Confidential) the Tribunal referred to a need to show that an applicant had exhausted all avenues of search for documentation.
17. In Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310, Nicholson J found that Confidential stood for the proposition that: where an applicant has failed to avail themselves of opportunities to secure evidence of identity which might reasonably be expected to exist and which they had been advised to secure, the application ought to be rejected.
18. In light of the country information before the Tribunal, the authorities referred to above and the high level of satisfaction required to establish identity for Australian citizenship, the respondent contends that the applicant should either produce:
18.1. Birth certificates and Citizenship Scrutiny Cards; or
18.2. Evidence of, at the very least, an approach to Myanmar authorities to try and obtain these documents. (R3)
The Respondent relied on its Statement of Facts and Contentions (SOFIC), in its opening statement on 30 July 2018, and focused on the fact that the Applicant had not produced sufficient documentation to satisfy the requirements of identity pursuant to section 24(3) of the Citizenship Act. The Respondent further submitted that citizenship was a significant step in the process of being adopted by the Australian country, and that there was no evidence to show that the Applicants had made any constructive attempt to secure necessary documentation.
In their opening statement, the Applicants claimed that they both had pink cards which were ultimately stolen or lost in Malaysia, or stolen or lost in transit to Malaysia.
Under cross examination, the Tribunal learnt the following:
·ZVNT, MFYW and SWQL were born in Myanmar.
·ZVNT was born on the 6 November 1975 and MFYW on the 20 October 1986.
·ZVNT and MFYW married in Anisakan.
·The Applicants are a Christian family.
·After marriage ZVNT and MFYW resided in the Chin state.
·Four months after marriage, ZVNT left for Malaysia.
·MFYW stayed back in Myanmar whilst she was pregnant. She lived with her in-laws.
·Both ZVNT and MFYW had access to pink cards – a major source of identification.
·Neither ZVNT and MFYW, or their daughter, SWQL, had a birth certificate.
·SWQL did not have a pink card as she was only one and a half years.
·When the family left Myanmar they used their pink cards.
·They travelled to Malaysia by car, boat and by walking through the forest at different times.
·Having no passports they entered Malaysia illegally, ZVNT who arrived earlier was arrested by the authorities.
·It appears that ZVNT was released into the community with support and assistance from the local church - there he laid the foundation for his wife and daughter to join him.
·Both ZVNT and MFYW either lost or had their pink cards stolen. In ZVNT’s case, he had 2 pink cards, having to reapply for the second one.
·In Malaysia, they had a Chin Community Identity Card – they no longer have that.
·As they left Malaysia for Australia, under the Refugee and Humanitarian (Class XB) Subclass 200 visa they were required to leave the documents they had at the United Nations office.
CONSIDERATION
What is required in this application is for the Tribunal to be satisfied of the identity of the Applicants.
The Tribunal notes the Respondent’s concerns that the Applicants have not produced any official or reliable documentation from their place of origin to substantiate their identities.
The Respondent claims that the Applicants have not taken appropriate steps to inquire as to their identity from appropriate authorities.
The Respondent claims, given both ZVNT and MFYW had previously been issued with pink cards, that no effort has been made to attempt, at any level, to secure copies of these documents.
When put to ZVNT and MFYW as to why they did not make an attempt to secure copies of their pink cards, ZVNT and MFYW stated that they just didn’t know that they could secure copies of the documents. The Tribunal accepts that for people who are not familiar with the vagaries of bureaucracy, this may well be the case.
The Tribunal notes commentary in Confidential v Minister for Immigration and Citizenship [2013] AATA 144 at paragraph 32, stating that evidence of using a name in the local community is insufficient to enable the Minister to properly form an opinion as to the identity of an Applicant. Paragraph 34 of Confidential v Minister for Immigration and Citizenship [2013] AATA 144 further states:
[34] I have concluded that the Minister has not been provided with any documentation to enable the Minister to form an opinion on the identity of the applicant. For this reason the application was, in my view, correctly rejected by the delegate.
The Tribunal notes commentary in Dhayakpa v Minister for Immigration and Border Protection [2015] AATA 310 at paragraph 117:
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.
The Tribunal accepts that a certificate of Australian Citizenship is a legal document of considerable significance (Beyan v Minister for Immigration and Citizenship [2015] AATA 256).
The Tribunal, having considered all the evidence before it, given that the ZVNT and MFYW were issued with pink cards, finds that ZVNT, MFYW and SWQL, should be required to make an attempt to secure certified copies of pre requisite documents required for citizenship. The Tribunal supports the contention of the Respondent that there was no effort made to do so, and consequently, this has impacted adversely on the success of this application.
The Tribunal now will consider GNGJ’s application as a dependent child applicant. As mentioned in paragraph 24 of this decision, GNGJ was born in Malaysia and has produced a required birth certificate. The Tribunal finds that despite producing an uncertified and untranslated birth certificate, there is no evidence before the Tribunal to suggest that GNGJ’s birth certificate is a fraudulent birth certificate.
As a dependent child applicant, the Tribunal finds that the prohibition to approve GNGJ becoming an Australian Citizen under s 24(3) of the Citizenship Act applies for the same reasons as his father, ZVNT. The Tribunal agrees that GNGJ was not covered by any policy guidelines set out in the Citizenship Policy, under the heading “Relevant considerations for children under the age of 16 applying in their own right” (T2 12-15)(R1). The Tribunal does not however agree with the delegate’s reasoning that GNGJ was a dependent child applicant on MFYW’s application (T2 12-15)(R1). The Tribunal finds in this sense, that the delegate’s decision was made in error.
The Tribunal finds however, even if GNGJ was assessed as a dependent child Applicant on ZVNT’s application, the outcome of GNGJ’s decision would remain unchanged.
Having considered all the evidence before the Tribunal, the Tribunal holds the view that further inquiries and production of documents are required to satisfy the criteria for identity under the Citizenship Act.
CONCLUSION
For the above reasons The Tribunal affirms the decision of the Minister’s delegate.

I certify that the preceding 63 (sixty one) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

...........................................................................
Associate
Dated: 17 August 2018

Date(s) of hearing:

Applicant: In person

Solicitors for the Respondent: Arran Gerrard, Australian Government Solicitor

[2018] AATA 3045

17 August 2018

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:
Applicant:	In person
Solicitors for the Respondent:	Arran Gerrard, Australian Government Solicitor