1517042 (Refugee)

[2017] AATA 1686

1517042 (Refugee) [2017] AATA 1686 (13 September 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517042

COUNTRY OF REFERENCE:                  Stateless  

MEMBER:Shahyar Roushan

DATE OF DECISION:  13 September 2017

DATE CORRIGENDUM

SIGNED:27 September 2017

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

In error: Paragraph 66 of the Decision Record

For the following reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice.

Should read:

For the following reasons, the Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice.

Shahyar Roushan
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517042

COUNTRY OF REFERENCE:                  Stateless

MEMBER:Shahyar Roushan

DATE:13 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 13 September 2017 at 12:27pm

CATCHWORDS

MIGRATION – Cancellation under s.109 – Protection Visa – applicant claimed to be a stateless Rohingya from Myanmar – whether the applicant provided a bogus document – whether the applicant provided incorrect information– applicant provided incorrect information about his experiences in Myanmar and Bangladesh but provided correct information about his Rohingyan ethnicity and statelessness – finding that the applicant did not provide bogus documents but did provide incorrect information - applicant could not return or be refouled to Bangladesh or Myanmar - indefinite detention a likely consequence of cancellation – visa should not be cancelled

LEGISLATION

Migration Act 1958, ss 5H, 46A, 48, 48A (1B), 97, and s.101, 102, 103, 104, 105, 107, 108, 109, 116, 119, 189, 424A, 438,

Migration Regulations 1994, Schedule 2, r 2.41

CASES

McDonald v D-G of Social Security (1984) 1 FCR 354
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
Zhao v MIMA [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in connection with his application for a protection visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Protection visa Application

3. The applicant arrived in Australia [in] July 2007 on a Bangladeshi passport issued [in] 2006 in his own name.  At the time of entry he held a Student visa issued to him in Dhaka. The applicant applied for a further student visa in November 2008, which was granted. That visa ceased [in] March 2016. He applied for a protection visa [in] March 2010.

4. In a statement attached to his protection visa application, he made the following claims:

5. He was born on [date] in [Village 1], Maungdaw Town, Arakan State, Burma (Myanmar). His parents and [siblings] continue to reside in Myanmar. His father worked as [an occupation] and also owned a [store].

6. In [year] he started attending a community village school [where] he was taught Islam in both Arabic and English. He studied at this school until June [year]. 

7. [In]June 2006, at approximately 7.30 pm, he was at home with his mother when about [number] people came to his house. Some were in uniform and some were in civilian clothing. The applicant was taken away and put in a Jeep with [other] young Rohingya men. The applicant was taken to a military camp and was forced to work. They had to make new roads in the mountain jungles, digging the ground, cutting the trees, making cement, putting bricks on the road and cleaning the camp. They moved camp on five occasions and had to carry military packs from one camp to another. They endured hard conditions and the applicant was mistreated on three separate occasions. On each occasion he was severely beaten. On the last occasion, following a severe beating, he was released [in] September 2007(sic). Although he was wounded and exhausted, he walked for many hours and with some assistance finally reached his village.

8. The applicant’s family arranged for him to travel to Bangladesh [in] October 2006 after ‘the neighbour boy’ was taken by the military. He stayed with his father’s friend, [Mr A], for a few days before being taken to a fishing boat. A week later, [Mr A] told him that arrangements were being made to send him to Australia.

9. [In] July 2007, [Mr A] met him again and took him to a ‘broker’. The broker gave him a passport and made all the necessary arrangements for him to get a student visa. He arrived in Australia [in] July 2007. He studied for two and half years and completed a [course]. He also worked on a casual basis.

10. [In] February 2010 he lost his passport. He called the Bangladesh embassy and told them that he was born in Burma and had a passport arranged by a broker. He was told that he was not a Bangladeshi and could not be given a passport.

11. In support of his application for a protection visa, the applicant submitted the following documents:

    ·Copy and translation of his Household Members List;

    ·Copy and translation of his birth certificate

    ·A letter [from] [Organisation 1], [dated] [March] 2010, stating that the applicant is Rohingya and originated from [Village 1]. He became a member of [Organisation 1] [in] January 2010;

    ·Copy of a letter by a [Mr B], dated [June] 2010, certifying that the applicant lived in [Village 1] and studies in Arabic school in [Village 2] from [year] to [year]; and

    ·Country information, including a US State Department report and news reports relating to Rohingya refugees in Bangladesh.

12. The applicant was interviewed by a delegate of the Minister in connection with his protection visa application (the protection interview). Where relevant, the applicant’s oral evidence to the delegate at that interview is discussed below.

13. The delegate refused the application [in] July 2010. The delegate noted that the applicant had travelled to Australia on a Bangladeshi passport and had described himself as Bangladeshi in all his dealings with the Department. She also noted that the applicant had submitted results of an IELTS test with his photograph attached, which indicate that he had sat an exam in Dhaka. The delegate found that the applicant had completed his schooling in Bangladesh as he had stated in his student visa application. The delegate also found that the applicant’s Bangladeshi passport is genuine. She did not accept that the documents provided by the applicant in support of his Burmese nationality are genuine.

14. The applicant applied for a review of the delegate’s decision to the then Refugee Review Tribunal (RRT). In support of his application for review, the applicant submitted the following additional documents:

    ·Statement from the applicant essentially arguing that the delegate’s decision was based on flawed assumptions and reasoning;

    ·Copy of a marriage certificate in Burmese with a translation, relating to the marriage of the applicant’s brother in Burma;

    ·Letter from [[Organisation 1] in Australia, dated [August] 2010, stating that the applicant is a Rohingya from Burma;

    ·Letter from [Organisation 2], dated [August] 2010, stating that the applicant is an active member of the association and he is a Muslim from Burma;

    ·Letter from [Organisation 3], dated [August] 2010, stating that the applicant’s background has been investigated in Australia and Burma and he could verify that the applicant is a Rohingya from Burma;

    ·Statutory declaration from another Rohingya from Burma living in Australia, dated [August] 2010, stating that the applicant was his brother-in-law as the applicant’s brother in Burma had married the author’s sister;

    ·Statutory declaration from a distant relative living in Australia, dated [August] 2010, who confirmed that he and the applicant were raised in Arakan State in Burma;

    ·Statutory declaration from a friend of the applicant’s father living in Australia, dated [August] 2010, who verified that the applicant was a Rohingya from Arakan State;

    ·List of 16 persons from the Rohingya community in [Australia] who could provide evidence in support of the applicant’s claim that he was a member of that community;

    ·Letter about the use of council facilities by [Organisation 1] in Australia;

    ·News articles relating to the arrest of Burmese ‘nationals’ from Arakan State who were living in Bangladesh and using false Bangladesh passports; Rohingyas from Burma seeking to obtain false Bangladesh passports and work overseas; Rohingyas from Burma, working overseas and using false Bangladesh passports, causing problems for the Bangladesh government; Rohingyas from Burma working in Saudi Arabia were ‘a major irritant’ for the Saudi Arabia and Bangladesh governments; 3000 Rohingyas from Burma in Saudi Arabia awaiting deportation; and plans by the government of Bangladesh to use force in preventing Rohingyas from Burma from crossing the border, living in Bangladesh, or seeking to obtain false Bangladesh passports.

15. On 27 September 2010, the RRT remitted the matter to the Department for reconsideration without taking oral evidence from the applicant. Based on the evidence before it, the RRT, essentially, accepted the applicant’s claim that he is a Rohingya who was born in Myanmar.

    The Cancellation

    The Notice

16. [In] July 2013, the applicant was sent by email a Notice of Intention to Consider Cancellation (NOICC) of his visa. The non-compliance identified and particularised in the NOICC  was non-compliance with s.101 and s.103 of the Act in the following respects:

    The details of the possible non-compliance are as follow:

    Information provided in your Protection visa application Form 866C and information provided in your Statutory Declaration attached to this Form

    [In] March 2010, you lodged an "Application for a Protection (Class XA) visa" which included a Form 866C. In response to several questions listed within this from, you provided the following information:

    Question 8 which asks:  "place of birth"  "town/city" "Country"

    You answered: "[Village 1], Maundaw" "Burma"

    Question 12 which asks:   "Ethnic group you belong to"

    You answered: “Rohingya”

    Question 19 which asks:  "Your citizenship at birth"

    You answered: "Stateless”

    Question 20 which asks: "Your current citizenship"

    You answered: "N/A"

    Question 21 which asks: "Do you hold any other citizenship or are you a national of any other country?"

    You answered:  "No"

    Question 23 which asks: "If you are stateless, how, when and why did you lose your citizenship?"

    You answered: "Due to being Rohingya"

    Question 32 which asks: "Details of countries of former habitual residence or transit before arrival in Australia"

    You answered:   "Country 1: Burma"

    Date of departure: “[date]-Jul-2007"

    Question 34 which asks: "Give details of all addresses OUTSIDE AUSTRALIA where you have lived for 6 months or more in the last 10 years"

    You answered:  "Burma" from "Dec-1998" to "10-2006"

    Question 36 which asks: "Give full details of all the education you have undertaken (in any country)"

    You answered:   "Feb-[year] to Jun-[year]"  " [name] Madarasa"  “[Village 2] ““Burma"

    Question 41 which asks: "I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries)"

    You answered: "Burma"

    Question 47 which asks:   "When did you leave your home country?"

    You answered:  "[date]-Oct-2007"

    Question 48 which asks: "Airport or port of departure from your home country"

    You answered:  "by border"

    Question 49 which asks: "How did you leave?"

    You answered by ticking "Illegally”.  "Describe how you left"

    You answered:   "by boat through Bangladesh Burma border"

    Question 50 which asks: "Did you have difficulties obtaining a travel document (such as a passport) in your home country?  "

    You answered by ticking "yes".  "Give details"

    You answered: "As we are Rohingya we are not recognised to obtain my home country passport, I obtained an (sic) fraudulent Bangladeshi  passport. "

    Question 53 which asks:   "Is your travel document valid for return to your home country?"

    You answered by ticking “No”. "Why not?" You answered:   "Because I am a Rohingya"

    At question 65 you signed the Declaration,  which states (in part):

    "I, (1) [applicant name] ...do solemnly declare: The information I have supplied on or with this Part C of the Form 866 is complete, correct  and  up-to-date  in every detail."

    "I understand that if I have given false or misleading information, any visa issued may be cancelled.”

    I have attached a copy of your Form 866C, which includes your answers to the above mentioned Questions at Attachment A for your information.

    I have also attached a copy of your Statutory Declaration signed and dated [March] 2010, at Attachment B for your information.

    Information provided in Form 80 "Personal  particulars for character  assessment"

    [In] March 2010, you lodged an "Application for a Protection (Class XA) visa" which included a Form 866C. In response to several questions listed within this form, you provided the following information:

    Question 6 which asks: "place of birth" "town/city" "State/Province " "Country"

    You answered: "[Village 1]" "Arakan" "Burma"

    Question 8 which asks: "What is your current citizenship?"

    You answered: "Stateless"

    Question 11 which asks: "Are you a dual citizen, or have you held any other citizenship?"

    You  answered  by ticking: "No"

    Question 14 which asks: " Details of any identity documents, social security cards, or any alien  registration  numbers you currently  use or have used in the past"

    You answered: "Birth Certificate" "[number]” "Burma"

    Question 17 which asks, in part:  "Country of residence"

    You answered:  "Stateless"

    Question 27 which asks: "Your current travel document details (eg. Passport, travel authority, documentary visa)

    You answered: "N/A"

    At question 36 you signed the Declaration, which states:

    "I hereby declare that the information 1 have supplied in this form is, so far as I know or could reasonably find out, correct in every detail.”

    "I declare that I have read and understand the information supplied to me”

    I have attached a copy of your Form 80, which includes answers to the above mentioned Questions at Attachment C for your information.

    Section 103 of the Act

    This provision relevantly provides that a 'non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function  or purpose under this Act, a bogus document or cause such a document to be given, presented or provided.'

    Section 97 of the Act provides that a 'bogus document', in relation to a person, means 'a document that the Minister reasonably suspects is a document that:

    (a)purports  to have been, but was not, issued  in respect  of the person; or

    (b)is counterfeit  or has been altered  by a person who does not have authority  to do so;

    (c)or was obtained because of a false or misleading statement, whether or not made knowingly;

    You have not complied with s103 of the Act because you presented bogus documents to the Department in the form of a Birth Certificate and a Household Members List, both purported to be from the Government of the Union of Myanmar, when you applied for a visa subclass 866 [in] March 2010.

    On the basis of the above information, the documents presented to the Department are bogus documents as per s 97(a) of the Act.

    I have attached a copy of the Birth Certificate and Household Members List at Attachment D for your information.

    The Deputy Director, (Passports & Visas), Department of Immigration and Passports, Dhaka, Bangladesh, has confirmed, in writing, that you were issued with Bangladeshi Passport No. [deleted].   Bangladeshi passports are issued only to citizens of Bangladesh.   Additionally, the Department has obtained your HSC [year] result publication, from the Education Board website, which confirms that you attended, and sat for the exam at [a] Public School and College, Chittagong, Bangladesh.

    Therefore, the information that you provided in your Protection visa application and your attached Statutory Declaration dated [March] 2010, in relation to, primarily, your fear of persecution from the Burmese Government due to you being of ethnic Rohingya, and your illegal status in Bangladesh, amongst other things, are deemed to be incorrect, given the information provided by the Bangladeshi authorities as detailed above.

17. The applicant responded to the notice [in] August 2013, stating that it is a well-known fact that Rohingya cross the border into Bangladesh and obtain documents fraudulently in order to survive. He referred to a number of newspaper articles in support of this claim. He reiterated that his documents were arranged fraudulently through a broker. With regard to the HSC certificate, he stated that it was obtained fraudulently. Bangladesh is a corrupt country and any official document can be obtained through bribery. The Education Board is corrupt and can be bribed for official certificates. Many people resort to this approach in order to go abroad. The applicant referred to news articles relating to the production and falsification of a variety of educational certificates. The applicant stated that his identity has not been assessed using the documents he has submitted and requested an examination of these documents.

18. [In] November 2013, the Department again wrote to the applicant by email, stating that the documents that should have been attached to the s.107 notice sent to him [in] July 2013 were accidentally omitted. A copy of the s.107 notice with a new date of [November] 2013 was forwarded to the applicant and he was given a further opportunity to provide new or additional information.

19. [In] June 2014, the applicant travelled to Bangladesh, returning to Australia [in] October 2014.

    The First ITOA Assessment

20. [In] July 2014, the Department completed an International Treaties Obligations Assessment (ITOA) in relation to the applicant (the first ITOA). The delegate of the Minister was of the view that advice from the Deputy Director (Passports & Visas), Department of Immigration and Passports, Dhaka and the educational certificate are insufficient to ‘overturn’ the RRT’s findings regarding the protection obligations owed to the applicant. The delegate found that the applicant is stateless and a former habitual resident of Myanmar. He found that Australia has non-refoulment obligations to the applicant.

    Further Response to the Notice

21. Given the lapse of time since the applicant’s first response to the s.107 notice, he was given an opportunity to provide any further or new information that he wished to be taken into account.

22. [In] November 2014, the applicant provided a statutory declaration as a further response to the s.107 notice. In his statutory declaration he reiterated that he was born in Myanmar and that he is stateless. He stated that he is not a Bangladeshi citizen and has never possessed a genuine Bangladesh passport. [Mr A] obtained the passport from a smuggler.

23. In a covering submission, the applicant’s representative referred to the contents of the applicant’s statutory declaration and the country information previously provided to the Department.

1. The following documents were also submitted:

   ·Letter from [Mr C], President of [Organisation 1], dated [November] 2014, certifying that the applicant is a ‘Rohingya descendent born in [Village 1], Maungdaw township, Rakhine State, Burma (Myanmar). Both of his parents are also Rohingyas born in [the same village]’.

   ·Statutory declaration, dated [November] 2014, signed by [Mr C], stating that he is [an official] of [Organisation 1]. He was born and grew up in Burma. He arrived in Australia in 2009 and has known the applicant ever since and that the applicant is a good person and a member of the Rohingya community.

   ·Statutory declaration, dated [November] 2014, signed by [Mr D], stating that he has known the applicant for more than 20 years. He is the applicant’s [relative] and their families have always been in touch. The applicant is a Rohingya like him. He lived with the applicant for [number] years in Australia and worked with [him].

   ·Statutory declaration, dated [November] 2016, signed by [Mr C] stating that he has known the applicant for more than 20 years. He is a distant relative of the applicant through his mother and they are both Rohingya from Arakan (Rakhine).

   ·Letter from [a named person], stating that he has known the applicant for 3 years and that he has been a part of the community and has volunteered in activities assiting the community.

   ·Letter from [an official] of [Organisation 2], stating that the applicant is an active member of the Association.

   The Site Visit

2. In October 2014, the post in Dhaka conducted a site visit of the [Public] School and College and [the] High School. In his student visa application the applicant had stated that he had attended the former from [Jan] to [July] [year deleted]; and the latter from [August] to [September] [year deleted]. Representatives from the post met with school officials and were referred to the relevant school records, including the applicant’s Higher Secondary Certificate tabulation sheet. [In] October 2014, the Post provided the Department with photographs of the relevant pages of school records maintained in ledger books, containing the applicant’s information. The information in the record, including the applicant’s parents’ names and his address in Bangladesh, corresponded with the information he had provided to the Department in connection with his student visa. The photographs show one set of records has been typed into the ledger book and one set have been handwritten. Both sets are in the middle of the page, in between other entries, with no apparent indication of tampering.

   The Second ITOA

3. [In]  August 2015, the applicant was informed of the commencement of an ITOA (the second ITOA). He was interviewed by telephone in connection with that assessment [in] September 2015. The interview was conducted in English. Where relevant, the applicant’s evidence during that interview is referred to in the Tribunal's reasons below.

4. [In] September 2015, the Department wrote to the applicant, stating that documents in his first student visa application file included a Form 160 (Radiological report on chest x-ray of an applicant for an Australian visa) and a Form 26 (Medical examination for an Australian visa). Both documents were completed in the applicant’s name. They both attached the applicant’s photograph and both were signed by the applicant. Both forms indicated that the applicant’s passport was sighted and his details, as contained in his passport, were recorded on both forms. It was put to the applicant that this information suggested that he had presented his Bangladeshi passport at the x-ray and medical examination [in] May 2007. The applicant was invited to comment on the information.

5. [In] September 2015, the applicant responded by providing a statement to the Department. In his statement, he reiterated that all processes relating to his passport and student visa application were handled by the broker. He further stated that he did not show his passport to any radiologist or doctor [in] May 2007.

6. [In] November 2015, the Department completed its second ITOA assessment. The Department decided that Australia does not have non-refoulement obligations in respect of the applicant. An officer of the Department did not accept the applicant’s claim that he is a stateless Rohingya from Burma. The officer found that the applicant is a citizen of Bangladesh. She found that the applicant is not a refugee as defined by s.5H of the Act and that there is no real risk that he will suffer significant harm if removed from Australia.

   The Delegate’s Decision

7. [In] December 2015, a delegate of the Minister exercised his discretion under s.109 of the Act to cancel the applicant’s protection visa. The delegate found that there was non-compliance under s.108 of the Act by the applicant with s.101 and s.103 of the Act. He found that the non-compliance occurred when the applicant provided incorrect information in his application for a protection visa in relation to his fear of persecution from the Burmese Government due to him being an ethnic Rohingya. In addition, he found that the applicant has presented bogus documents in the form of a Birth Certificate and Household Members List, both purported to be from the Burmese Government.

   Application for Review

8. The applicant applied to this Tribunal for a review of the delegate’s decision.

   Pre-Hearing Submissions

9. In a submission, dated 27 July 2016, the applicant’s representative provided a brief background and a summary of this matter’s procedural history. It was stated that, following the applicant’s arrival in Bangladesh in October 2006, a broker took his photo and got him to sign various documents. He was unaware of the content of those documents. He attended a medical examination without a passport [in] May 2007 and met with the broker again [in] July 2007, when he obtained an official Bangladeshi passport in his name. He obtained a further student visa in Australia [in] December 2008, using information provided to him by his father after having consulted with the broker who had arranged his original passport and visa.

10. With regard to incorrect information, it was noted that the second ITOA related solely to information provided in the applicant’s student visa application, obtained by a broker. It was submitted that it is possible that the broker ensured the information was verifiable by bribing officers at the schools and the HSC office to amend their records. It was submitted that the records do not appear to include photos of the applicant and were not verified by witnesses to the applicant’s physical attendance at the school and therefore they should be given little weight. It was submitted that the statutory declarations and statements by the applicant’s witnesses, attesting to his attendance at school in Myanmar, their historical familiarity with the applicant and/or his Rohingya family and investigations confirming his Rohingya ethnicity.

11. Under the cover of the submission, the representative provided the following supporting statutory declarations, letters and statements:

    ·     Statutory Declaration by the applicant, dated [July] 2016;

    ·     Statutory Declaration by [the] applicant’s wife, dated [July] 2016;

    ·     Statutory Declaration by [the] applicant’s brother-in-law, dated [July] 2016;

    ·     Statutory Declaration by [Mr D], the applicant’s relative, dated [July] 2016;

    ·     Statutory Declaration by [Mr E], the applicant’s[relative], dated [July] 2016;

    ·     Statutory Declaration by [the] applicant’s childhood classmate, dated [July] 2016;

    ·     Statutory Declaration by [a] family friend, dated [July] 2016;

    ·     Statutory Declaration by [the] applicant’s childhood acquaintance, dated [July] 2016;

    ·     Statutory Declaration by [the] applicant’s childhood acquaintance, dated [July] 2016;

    ·     Statutory Declaration by [the] applicant’s childhood acquaintance, dated [July] 2016;

    ·     Statutory Declaration by [Mr F], the applicant’s childhood acquaintance, dated [July] 2016;

    ·     Copy of letter from [an official of an organisation] in [a state of Australia], dated [July] 2016;

    ·     Copy of letter from  [Organisation 3], udated;

    ·     Copy of letter from [Organisation 2], dated [July] 2016;

    ·     Copy of letter from, [an official] of [Organisation 1] in Australia, dated 20 July 2016;

    ·     Copy of letter from [a workplace], confirming employment as a Rohingya [worker]  from [February] 2012 to present, dated [November] 2014;

    ·     Copy of letter from [a workplace], confirming employment as a Rohingya [worker] from  [June] 2011 to present, dated [July] 2016; and

    ·     Letter from [a workplace], confirming employment as a Rohingya [worker] from [May] 2013 to present, dated [July] 2016.

    Document Examination Report

12. On 29 July 2016, the Tribunal wrote to the Document Examination Unit of the Department and requested an examination of the authenticity of the applicant’s Birth Certificate.

13. On 7 September 2016, the Tribunal received from the Department the Document Examination Report in relation to the applicant’s Birth Certificate.

    The Hearing

14. The applicant was invited to appear before the Tribunal on 29 July 2016 to give evidence and present arguments. The applicant specifically requested an interpreter from Arakan State of Myanmar due to variations in Rohingya dialects.

15. Prior to the hearing, the Tribunal became aware that the interpreter assigned to the hearing had previously provided a statutory declaration in support of the applicant’s claims. On 28 July 2016, the Tribunal contacted the applicant’s representative and informed her that the Tribunal has decided not to use the interpreter booked for the hearing due to perceived conflict of interest. The applicant’s representative was also informed that if the Tribunal was unable to engage a different interpreter, it may postpone the hearing. The Tribunal was unable to engage an appropriate interpreter on this occasion and the hearing was adjourned.

16. The applicant appeared before the Tribunal on 29 July 2016 to give evidence and present arguments. The applicant was assisted by an interpreter in the Rohingya language. However, it became clear at the very outset that the interpreter and the applicant were speaking different dialects and that they were unable to communicate with each other. The Tribunal was satisfied that the applicant would not have been able to, effectively, give evidence and present arguments at the hearing. In these circumstances, the Tribunal decided to adjourn the hearing.

17. On 4 August 2016, the applicant’s representative wrote to the Tribunal, stating that the interpreter at the hearing on 29 July 2016 was not Rohingya from Arakan State. She put forward the name of a particular interpreter ‘with whom [the applicant] has no conflict of interest as he has not provided evidence in this matter previously’.

18. On 8 August 2016, the Tribunal wrote to the applicant’s representative, advising her that the Tribunal's Guidelines on Interpreters require the Tribunal not to ‘engage an interpreter specifically requested by name by the applicant or their representative’.

19. The applicant appeared before the Tribunal on 16 September 2016 (reference below to oral evidence given by the applicant and his witnesses at ‘the hearing’ are only in relation to oral evidence provided on 16 September 2016. The applicant was assisted by an interpreter in the Rohingya language. It was evident to the Tribunal that the applicant and the interpreter were able to communicate with and understand each other without difficulty. Neither the applicant nor his representative raised any concerns in relation to the interpreter or the quality of interpreting. The Tribunal also took evidence from 12 witnesses.

20. The applicant had also requested the Tribunal to take evidence from two witnesses in Myanmar. The Tribunal, however, explained that it was reluctant to do so as it would be difficult for the Tribunal to determine the exact identity of the persons giving evidence. The Tribunal noted that the witnesses in question may provide written statements to the Tribunal, which it would carefully consider.

21. Where relevant, the applicant’s oral evidence to the Tribunal and the evidence provided by his witnesses are referred to below.

    Section 424A Letter

22. On 25 September 2016, the Tribunal wrote to the applicant under s.424A of the Act, inviting him to comment on or respond to certain information which it considered would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review.

23. On 5 October 2016, the applicant’s representative wrote to the Tribunal, requesting an extension of time on the basis that the applicant was awaiting the outcome of an FOI request lodged [in] August 2016 and that he was preparing certified statements from overseas witnesses.

24. On 12 October 2016, the applicant’s representative wrote to the Tribunal and provided an ‘interim submission’. In her submission, she stated that ‘it is not reasonable to suspect that the applicant is a Bangladeshi citizen without confirmation from the relevant authorities’ and that ‘the Tribunal must obtain an answer from the above post before determining the citizenship of the applicant’. The submission further stated:

    If the applicant’s visa cancellation is affirmed, he will be subject to indefinite detention or removal to Bangladesh. However, the Bangladeshi authorities are unlikely to allow the applicant the right to reside in Bangladesh merely on the basis of his lost and expired Bangladeshi Passport, high school records or any other record. The only record they would rely upon is that of the relevant Bangladeshi authorities.

    In the event that the Bangladeshi authorities are unable to confirm the applicant’s Bangladeshi citizenship, the only alternative would be indefinite detention. The total cost of keeping the applicant in indefinite detention is likely to exceed twelve million dollars ($12m) over fifty years, as life expectancy for males is eighty (80) years;2 the applicant is currently [age] years of age; and the cost of detaining a person in Australia is approximately $239,000 per year. We note also that a United Nations Human Rights Committee report dated July 2013 has found that Australia has breached the International Covenant on Civil and Political Rights and committed 143 human rights violations by indefinitely detaining 46 refugees on the basis of Australian Security Intelligence Organisation “adverse security assessments.”

    We hereby request that the Tribunal obtain confirmation of the applicant’s citizenship from the relevant Bangladeshi authorities and advise the outcome as soon as possible.

25. On 13 October 2016, the Tribunal wrote to the applicant, granting his request for an extension until 27 October 2016.

26. On 20 October 2016, the Tribunal wrote to the applicant’s representative advising her that, at this point, the Tribunal will not make an enquiry of the nature requested in his representative’s submission of 12 October 2016. The Tribunal noted that the applicant was issued with a legitimate Bangladeshi passport, which may be construed as evidence of citizenship. It was noted that certain information would have needed to be provided to the relevant Bangladeshi authorities in order for a passport to be issued to the applicant and that the Tribunal would consider any information he might wish to be submit in this regard.

27. On 26 October 2016, the applicant’s representative wrote to the Tribunal, requesting a further extension of time to provide a response to the Tribunal's s.424A letter. In her correspondence, the applicant’s representative also submitted that it would not be reasonable to rely on the applicant’s expired passport and the comments of a representative of the Bangladeshi Department of Immigration and Passports in Dhaka that ‘there is no provision of issuing a Bangladesh passport to a person who is not a Bangladeshi’ to conclude that the applicant is Bangladeshi. It was submitted that the comments of the Bangladeshi official, above, ‘conflict with’ country information cited in the second ITOA that some Rohingya managed to acquire Bangladeshi passports.’ The submission referred to the findings in the first ITOA that ‘prior to 2008 it appears to be likely that [the applicant] may have been able to acquire a Bangladeshi passport that would allow him to travel, however not confer citizenship upon him.’ The submission cited information sourced from Wikipedia relating to the means by which Bangladeshi citizenship can be acquired (Upon beginning of State on 25 March 1971, bloodline, at birth and by naturalisation). It was submitted that there is no conclusive evidence to indicate that the applicant was born in [Bangladesh]. The applicant’s place of birth is evidenced by his original birth certificate, which has been found to be ‘legitimately manufactured’ in Myanmar’ and his Rohingya ethnicity is indicated by fourteen witness statements. It was submitted that there is no evidence to indicate that the applicant could have become a citizen of Bangladesh through naturalisation and that it would not be reasonable to suspect that he is a Bangladeshi citizen ‘without positive confirmation from the relevant authorities’.

28. On 27 October 2016, the Tribunal wrote to the applicant’s representative, advising her that, in relation to her request for a further extension of time to respond to the s.424A letter, the Tribunal takes the view that the Migration Act only permits it to extend the period of time for a further prescribed period after the initial period. That is, the period of time may only be extended once and that her request for a further extension of time is not granted. She was, nevertheless, informed that the Tribunal had not made a decision in this matter and would consider any further information or evidence submitted at any point before the decision is finalised.

29. On 4 November 2016, the Tribunal received a further submission from the applicant’s representative. It was submitted that the applicant’s father has engaged an agent to obtain verification in relation to the applicant’s Bangladeshi nationality. The submission also responded to the information put to the applicant in the Tribunal's s.424A letter.

30. Under the cover of the submission, the applicant’s representative submitted the following documents:

    ·Copies of complaint letters from the Rohingya community regarding certain interpreters who they claim are not Rohingya.

    ·Letter from the Hukatta of the applicant’s village in [Myanmar]. [This person] stated that the applicant is an ethnic Rohingya and that his parents and siblings are still residing in [Village 1]. The applicant had attended [school], but had to leave home ‘because of political problems’.

    • Statutory declaration from the applicant, enclosing a statement from his father. In his statement, the applicant’s father stated that he had paid a ‘lot of money’ to [Mr A] to give to a broker to arrange everything for his son. He had to sell some of his land and his wife had to sell some of her jewellery. He was unaware of what the broker had to do to get his son to safety, be he believes that it is possible that the broker did everything as it is widely known that in Bangladesh, corruption is widespread, ‘specifically, with documents pertaining to education’. After the applicant came to Australia, he lodged a further student visa application by contacting him and he contacted the broker through [Mr A] to get the details for his son to write down in his application.

31. On 9 November 2016, the applicant’s representative wrote to the Tribunal, providing a handwritten statement by the applicant’s father. She stated that the Hukkatta of the village was arrested [in] November 2016 and was ‘unavailable to act as a qualified witness’. Maung Daw Village is surrounded by more than 100 military at the moment and people cannot move around. The applicant’s representative requested that the Tribunal ‘withhold from making a decision until more detailed submissions may be made following receipt of our departmental FOI request including a request for copies of the Bangladeshi school records, and letters from the Bangladeshi authorities confirming the applicant’s entry or otherwise in birth and citizenship registries’.

1. In his handwritten statement, the applicant’s father essentially stated that the applicant had resided in [Village 1] until the age of [age]. He was abducted by the Burmese military [in] June and departed the village for Bangladesh [in] September 2006.

2. On 15 December 2016, the applicant’s representative wrote to the Tribunal, advising that the applicant had not yet received ‘records from the Bangladeshi Birth Registry and Citizenship authorities’ and that they will be provided ‘within the next few weeks’. She also advised that she was still awaiting certain documents requested from the Department under FOI and that she will be on maternity leave from [December] 2016 to [April] 2017.

3. On 13 May 2017, the applicant’s representative wrote to the Tribunal, advising that the applicant had been unable to ‘obtain the letter from Bangladesh birth and citizenship registry’ as they can ‘issue letters from birth and citizenship registry to the citizens of Bangladesh only.’

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Section 438 Certificate

4. The Department’s file relating to the cancellation of the applicant’s protection visa [contained] a s.438 certificate in respect to a number of documents on that file. It is appropriate to address the validity of the s.438 certificate, which requires that the reason specified in the certificate for why disclosing matters contained in specified folios within the Department’s file would be contrary to the public interest must be capable of forming  ‘the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence’.

5. The only reason stated in the certificate is that the information was related ‘to an internal working document and business affairs’.  The Tribunal is not satisfied that this is reason provides a sufficient basis for public interest immunity.  The Tribunal finds the certificate to be invalid and it has proceeded to treat the documents in the usual way as if there was no certificate.

   Was there non-compliance as described in the s.107 notice?

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

7. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

8. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

9. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[1] Whilst a visa holder, whose visa is being considered for cancellation, must be invited to show that the ground for cancellation does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA, the Court stated:

   The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[2]

   [1] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.

   [2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

10. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.

11. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

12. For the following reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice.

    The Passport

13. The applicant travelled to Australia [in] July 2007 on a Bangladeshi passport. A copy of the passport located on the Department’s file [indicates] that the passport was issued [in] 2006 to [applicant name], born on [date]. The applicant’s photograph was attached to the passport. In his application for a protection visa the applicant stated that a broker or an agent had obtained a Bangladeshi passport for him in order to facilitate his travel to Australia. He stated that he received the passport from the broker [in] July 2007. In his subsequent evidence to the Department and the Tribunal, the applicant provided the same information, claiming that he had no knowledge of, or access to, this passport prior to [July] 2007.

14. [In] December 2010, the Department received a response from an enquiry it had sent to the Bangladeshi Department of Immigration and Passports in Dhaka in order to verify the authenticity of that passport. It was stated in the response that the passport ‘was issued in Chittagong [in] 2006 to [the applicant]…’.

15. The Department’s records contain a copy of an IELTS test in the applicant’s name with his photograph attached to the document. This document indicates that the applicant sat for an IELTS test at the British Council in Dhaka [in] December 2006. The applicant would have been required to present his passport at the time of this test in order for his identity to be verified.

16. Notes contained in the applicant’s electronic records with the Department indicate that, [in] May 2007, he was interviewed by an officer of the Department in Dhaka in connection with his first student visa application, lodged in Dhaka [in] April 2007. It was noted that, at that interview, the applicant had presented his passport. This indicates that the applicant’s Bangladeshi passport was presented by him at that interview [in] May 2007.

17. Documents in the applicant’s first student visa application file include a Form 160 (Radiological report on chest x-ray of an applicant for an Australian visa) and a Form 26 (Medical examination for an Australian visa). Both documents were completed in the applicant’s name. They both attached the applicant’s photograph and both were signed by the applicant. Both forms indicated that the applicant’s passport was sighted and his details, as contained in his passport, were recorded on both forms. This indicates that the applicant’s Bangladeshi passport was presented by him at the x-ray and medical examination [in] May 2007.

18. In each of the above of instances, a person had attended the relevant appointment. In each instance, the person had presented a passport for the purposes of identity verification. In each instance, the information in the passport, including the photograph of the person the passport holder, had to match the details of the person attending the appointment. In each instance, the documents or records relevant to the appointment reflected the details of the person in respect of whom the document or the record was issued. In each instance, the person identified in the document or the record was [applicant name], born on [date].

19. The above information was put to the applicant at the hearing and in the Tribunal's s.424A letter. In relation to the IELTS test, the applicant stated at the hearing that, in Bangladesh, anything, including any exam result, is possible with money. The applicant’s representative also submitted that it is possible that someone who looked like the applicant had attended the IELTS test. In the response to the Tribunal's s.424A letter, the applicant’s representative referred to an announcement posted on the website of British Council (Egypt), dated 23 October 2013, in relation to ‘further’ tightening of IELTS test security through biometric systems. It was submitted that the applicant’s test was dated [December] 2006, whereas the IELTS’ current biometric security systems were only introduced in 2013. It was further stated that the same passport photo appears on the applicant’s IELTS certificate as appears in his Bangladeshi passport, first student visa application form and medical forms. It was stated that ‘clearly’ no photo was taken on the day of the exam, in breach of IELTS biometric security policy, and the ‘highest standards of security’ were not applied in this instance.

20. The Tribunal finds the above explanations unpersuasive and farfetched. IELTS tests are international tests, subject to high security standards. Whilst it may be true that current biometric security systems were only introduced in 2013, according to the IELTS Guide for Educational Institutions, Governments, Professional Bodies and Commercial Organisations, dated March 2009, highest standards of security throughout the testing process were applicable at least four years earlier. The Guide stated:

    Test Report Forms are printed on security-enhanced paper. They are authenticated by a centre stamp, an IELTS validation stamp and a photograph of the candidate.

    All IELTS test centres are required to follow a detailed code of practice which ensures the highest standards of security throughout the testing process, from registration to the recording of results. Candidates must provide photographic evidence of identity when they register and on the day of the test. In addition, every IELTS test centre administrator is trained to the level of immigration officials in order to ensure they can detect impostors and fraudulent documents.[3]

    [3] CIS19641, "International English Language Testing System Guide For Educational Institutions, Governments, Professional Bodies and Commercial Organisations", International English Language Testing System, 01 March 2009.

21. In relation to the contention that no photo was taken on the day of the exam in breach of IELTS biometric security policy, the applicant’s representative’s source was information on the webpage (current at the time of the submission) of IDPIELTS, which manages IELTS test centres in numerous locations globally.[4] However, there is nothing in the Guide, referred to above, to indicate that, in 2009 or thereabouts, a candidate’s photograph was taken or was required to be taken on the day of the exam. The Guide stated that candidates must provide photographic evidence of identity when they register and on the day of the test. Indeed, IELTS introduced ‘Test Day Photography’ only in June 2012.[5] As indicated by the British Council website page provided by the applicant’s representative, the biometric systems were introduced to ‘further’ enhance security. According to the same webpage, IELTS has long been ‘recognised as a secure, high-stakes test’.[6]

    [4] See Mentor International, Important Information: IELTS Biometrics Security Enhancement System at The British Council, Baltic Council for International Education, Exam Day, and Notice on IELTS Biometric Security Enhancement System, British Council Egypt, Biometric systems further tighten IELTS test security,

22. The applicant’s representative also referred to an October 2015 online news report in relation to allegations of ‘operators offering to fake IELTS certificates, at a price’. She also referred to a weblog and stated that it is still possible to buy an original IELTS certificate without attending the exam. The weblog, which appears to have been last updated in June 2015, invites readers to buy ‘original IELTS certificates without you attending the exam’. There was no other information before the Tribunal in relation to the veracity of the claims made in the news report or the authenticity of the weblog. There was no information to indicate that the weblog is anything more than a hoax or a scam. Whilst the Tribunal accepts that there have been instances of IELTS fraud in different locations, the Tribunal does not accept the applicant’s explanations in relation to his IELTS test. The Tribunal finds these explanations highly unpersuasive and improbable. The Tribunal is satisfied that the applicant was a candidate for the relevant test, that he had attended the test centre and that he had sat for the test. The Tribunal is satisfied that the applicant had presented the Bangladeshi passport he had travelled to Australia at the time of the test in order for his identity to be verified. The Tribunal is satisfied that the applicant was in possession of the passport before [July] 2007. The Tribunal is satisfied that the applicant had provided incorrect information in his application for a protection visa in this regard.

23. With regard to the applicant being interviewed [in] May 2007 by an officer of the Department in Dhaka in connection with his first student visa application, the applicant stated at the hearing that he had not attended an interview and that the broker had arranged this. When asked how this would have been possible, given that his identity had been verified through the passport, he said by paying an agent in Bangladesh anything can be arranged and that Rohingyas can obtain many documents. The applicant’s representative submitted that it is possible that someone who looked like the applicant had attended the interview. In the response to the Tribunal's s.424A letter, neither the applicant nor his representative specifically commented on this issue or provided any further explanations.

24. The Tribunal finds the explanations offered at the hearing highly unpersuasive and fanciful. The Tribunal does not accept that another person had attended an interview with an officer of the Department in Dhaka, presenting a passport bearing the applicant’s photograph and pretended to be the applicant without raising any concerns. The Tribunal is satisfied that the applicant had attended an interview with an officer of the Department in Dhaka in connection with his first student visa application [in] May 2007. The Tribunal is satisfied that the applicant had presented to the officer the Bangladeshi passport he had used to travel to Australia in order for his identity to be verified. The Tribunal is satisfied that the applicant was in possession of the passport before [July] 2007. The Tribunal is satisfied that the applicant had provided incorrect information in his application for a protection visa in this regard.

25. In relation to Form 160 and Form 26, the applicant stated at the hearing that he signed the forms and was taken somewhere for x-ray and medical tests. He said in Bangladesh anything can be arranged with money. In her submission of 27 July 2016, the applicant’s representative stated that the applicant had attended a medical examination without a passport [in] May 2007. In her response to the Tribunal's s.424A letter, the applicant’s representative did not specifically address this issue, other than contending, essentially, that the applicant’s father had paid a large amount of money to the broker to make all necessary arrangements. These comments were consistent with the response provided by the applicant to the Department [in] September 2015. The Tribunal, however, finds these explanations unsatisfactory, self-serving and highly improbable.

26. Part B of Form 160, under the heading 'Applicant's declaration' states that the form is 'to be signed and dated by the applicant in the presence of the radiographer'. The Form was signed and dated [May] 2007. In Part C of Form 160, under the heading 'Radiographer to complete', the radiographer's certification reads 'I certify that I have carried out the x- ray of the person whose photograph and signature are on this form' The radiographer signed and dated the Form [in] May 2007. The applicant’s photograph was attached to the Form. Part B of Form 26 also required the Form 'to be signed and dated by the applicant in the presence of the examining doctor'. This part was signed by the applicant and dated [May] 2007. Part C of Form 26, under the heading 'Examining doctors findings', required the examining doctor to sign and date a the declaration, which stated: 'This declaration must be signed and dated by the doctor who personally performed the examination' and 'I declare that I have examined the applicant and that this is a true and correct record of my findings' The doctor signed and dated the December [in] May 2007. The applicant’s photograph was attached to the Form.

27. Having found that the applicant was in possession of the Bangladeshi passport at the time of his IELTS test and having found that the applicant was in possession of the Bangladeshi passport when he attended an interview by an officer of the Department [in] May 2007; the Tribunal finds that the applicant had attended his medical appointments in person [in] May 2007 and had presented his Bangladeshi passport for verification purposes at that time. The Tribunal is satisfied that the applicant was in possession of the passport before [July] 2007. The Tribunal is satisfied that the applicant had provided incorrect information in his application for a protection visa in this regard.

    School and HSC records

28. Information found on the website of the Education Board of Bangladesh ( (accessed 15 September 2016)) indicated that that the applicant sat for a Higher Secondary Certificate (HSC) Examination conducted by the Education Board in Chittagong. The website lists the applicant’s details, including his name, his father’s name, his mother’s name, the subjects studied and the applicant’s grades. The information on the website identified the applicant’s [school]. This information corresponds with information the applicant provided in his first student visa application in connection with his schooling. It also corresponds with information he provided in his second student visa application, lodged in Australia in November 2008.

29. According to his second student visa application, the applicant attended [a] High School in Chittagong from [January] [year]to [July][year]. [In] October 2014, a Senior Migration Officer (SMO) with the Department’s Dhaka post and a Locally Engaged Officer (LEO) visited both the [Public] School and College and the [High] School in Chittagong. Departmental records show that, at the [Public] School and College, the LEO met with the administrative officer and was referred to a registration and records official who was able to locate the applicant’s school record. Also located was the applicant’s HSC tabulation sheet which showed that he had passed the HSC in [year] at that school. The applicant’s record listed the names of his parents and his addresses in Bangladesh. The address shown in this record as his permanent address is the same as the address the applicant provided in his student visa application forms. The record also noted that the applicant’s previous educational institution was the [name] High School. The LEO enquired about foreign students studying at the school and the relevant school official stated that in his many years of service he had not seen a foreign student. Photographs were taken of the relevant record books and were provided to the Department in Australia. Colour scans of the photographs show that one set of records have been typed into the bound book and one set have been handwritten. The applicant’s specific details are situated midway down the pages.

1. At the [High] School the SMO and LEO met with the principal and school staff were instructed to locate the applicant’s records. The list of students who sat for the Secondary School Certificate (SSC) exams in [year] was retrieved and the applicant’s name, roll number, names of his parents, registration number and date of birth were located. The information contained in this record was noted by the SMO and LEO as being consistent with that contained in the HSC record from [the] Public School and College. Photographs were taken of the applicant’s records in the [High] School record books and were provided to the Department in Australia. The photographs show that his record is situated midway down the page.

2. Photographs of the applicant’s records at the [Public] School and College and the [High] School show that records are kept in hard bound ledger books, indicating that it would be highly unlikely for anyone to be able to remove or add pages to past records . There is no indication that the records have been tampered with.

3. In his statutory declaration of [July] 2016, the applicant stated that he did not know how his name was placed on the on the records of the two Bangladeshi schools and the HSC website. He denied that he ever attended [the] Public School and College and the [High] School in Chittagong. He stated that the broker had made all the arrangements relating to his passport and Australian student visa.

4. At the hearing, when the above information was put to the applicant, he stated you can buy anything with money in Bangladesh and that he was not in Bangladesh at that time.

5. In the response to the Tribunal's s.424A letter, addressing the IELTS test, departmental student visa interview, medical examination and school and HSC records, the applicant’s representative referred to the Tribunal's hypothetical comments at the hearing, in the process of questioning the applicant in relation to his claims, to the effect that one may be able to assume the type or level of service provided by a broker would match the amount of money one is prepared to pay and that the applicant must have paid ‘lots and lots of money’ for the type of service he claims to have received by the broker. The applicant’s representative submitted that, these are assumptions, unsupported by objective information, and that the Tribunal would be unable to make ‘reasonable findings in this regard as very little information exists in relation to Bangladeshi people smugglers, how they operate, and how much they cost’. Nevertheless, it was submitted that the applicant’s father had sold land and jewellery and borrowed money to pay approximately [amount] Bangladeshi Lakhs to the broker (approximately $[amount]AUD). The applicant’s father makes approximately [amount] to [amount] Lakh in Burmese Kyat per year, which is equivalent to approximately $[amount] - $[amount]AUD. It was submitted that the applicant’s father had paid ‘lots and lots of money’ to the broker to secure his [child’s] safe passage on a highly illegal and perilous journey. The applicant’s representative also referred to country information cited in the first ITOA in relation to prevalence of corruption in Bangladesh. That information indicated that, whilst passports and birth certificates can be falsely obtained, school records are reliable. It was submitted that this is illogical as ‘there would be far less security in school enrolment and HSC records than in government birth and passport records’. It was submitted that, because the enrolment and HSC records do not contain photos and cannot be verified by eye witnesses, they are not reliable, ‘whereas a series of class photos containing the applicant’s name and progressively older face, for example, may be harder to dispute’.

6. The Tribunal accepts that its comments at the hearing in relation to the correlation between the money paid to and the type of service received by a broker were mere assumptions, designed to elicit further explanations from the applicant as to how it had been possible for the broker to make so many improbably meticulous arrangements. Nevertheless, regardless of the amount of money the applicant’s father has claimed to have paid, the Tribunal considers it highly unlikely and improbable that a broker had been able to enter information relating to the applicant’s personal details, the school he had attended, the subjects he had studied and his grades on the of the website of Education Board of Bangladesh. Similarly, the Tribunal considers it highly unlikely and improbable that a broker had somehow accessed records kept by two separate schools and entered the applicant’s relevant details in these records. In light of the particular information referred to above, the Tribunal does not accept that enrolment and HSC records in the circumstances of this case are not reliable. As noted above, the records were kept in hard bound ledger books, indicating that it would have been highly unlikely for anyone to have been able to remove or add pages to past records. There was no indication that the records had been tampered with. The Tribunal finds that, in this case, the school records and ledger books were dependable. The Tribunal does not accept the highly improbable suggestion that ‘perhaps the whole book was doctored’ or ‘the whole page was doctored and the book was re-bound’. The applicant has failed to provide any persuasive reason as to why, regardless of the amount paid, without apparent instructions from the applicant or his father, a broker would have seen it necessary to take such detailed and troublesome actions. The Tribunal considers it far-fetched and fanciful that the website and the records had been altered as claimed. The Tribunal finds the applicant’s banal explanation in relation to his school records - that anything is possible in Bangladesh through bribery - unpersuasive and self-serving.

7. The Tribunal has considered the letter by a [Mr B], dated [June] 2010, certifying that the applicant lived in [Village 1] and studied in Arabic school in [Village 2] from [year] to [year]. The Tribunal has also considered the applicant’s father’s statement and the evidence of three of the applicant’s witnesses who claimed to have seen the applicant in his village in Burma in 2005 or 2006. The remainder of the applicant’s witnesses had either departed Myanmar many years earlier or had met the applicant in Australia.

8. The applicant’s [relative], [Mr E] gave evidence to the Tribunal via [telephone]. [Mr E] told the Tribunal that he departed Myanmar for Bangladesh in 2007, when he was [age] years old. He then travelled to [Country 1] and resided in that country until 2012, when he came to Australia. However, when asked where he had stayed in Bangladesh before travelling to [Country 1], he said he could not remember. When pressed, he said he did not stay long, moving from one place to another. When asked when he had last seen the applicant in Myanmar, he said he could not remember exactly and then stated that it was in 2006. [Mr E] stated that, although there was a school in his own village, he attended the school in [Village 2] for 5 years. However, when asked when he had attended the school, he said he could not remember. When asked when the last time he had attended the school was, he said he was in year [grade]. [Mr E] then stated that he was studying with the applicant at [Village 2] but he has forgotten its name. When asked when was the last time he and the applicant studied together, he said he was little and young and could not remember. He also said he had attended a school at [another] village at the same time he had attended the madrasa. As it was put to [Mr E] at the hearing, in the presence of the applicant, the Tribunal found his evidence to be vague, imprecise and evasive. [Mr E] did not provide an explanation as to why he was unable to recall events that was reasonable to expect him to remember. The applicant’s representative submitted that [Mr E] is an applicant for a protection visa, he is concerned about giving evidence and he might have been advised by his representatives to say ‘I don’t know’. The Tribunal did not find [Mr E] to be a credible or reliable witness and does not accept his evidence in relation to the applicant.

9. Two other witnesses, [Mr G] and [Mr F], also claimed to have attended school with the applicant. [Mr G] stated that he was in year [grade] and [age] years old when he last saw the applicant in Myanmar. He said it was in 2005 or the beginning of 2006. Asked what grade the applicant had been in at that time, he said he could not remember. However, he also stated that he was a close friend of the applicant. [Mr F] told the Tribunal that he resided in a village about [number] km from applicant’s village. He said his [aunt] lived next door to the applicant’s house and he visited his aunt every two or three months. [Mr F] also stated that he had last seen the applicant in 2005 or 2006. When pressed to be more specific, he said it was around 2005 or 2006. He was aged [age] or [age] at that time. The Tribunal did not find [Mr G] or [Mr F]’s evidence compelling. Despite their claimed close relationship or proximity to the applicant, neither could commit to more specific time frames in relation to when they had last seen the applicant in Myanmar. The Tribunal found this particularly troubling, given the applicant’s claims in relation to his grave experiences in June 2006.

10. In view of the Tribunal's findings in relation to the applicant’s school records, [Mr B]’s letter, the applicant’s father’s statement and the evidence of his witnesses do not undermine the compelling nature of the evidence relating to the applicant’s HSC and school records in Bangladesh.

11. The Tribunal, therefore, is satisfied that the applicant resided in Bangladesh from January 2001 to July 2007. The Tribunal is satisfied that the applicant attended the [High] School in [Chittagong]. The Tribunal is satisfied that the applicant attended [a] Public [College]. The Tribunal is satisfied that the applicant did not attend school in Myanmar from [year] to [year]. The Tribunal is satisfied that the applicant was not in Myanmar at the time of his claimed abduction in Myanmar. The Tribunal is satisfied that the applicant did not depart Myanmar in October 2006 under the circumstances claimed in his application for a protection visa.

    Other Matters

12. In making the above findings, the Tribunal has also relied on other problematic aspects of the applicant’s evidence.

13. In his evidence to the Tribunal, the applicant confirmed that he had completed his second student visa application in Australia. Whilst he stated that a friend had provided him with assistance, he confirmed that he had personally filled in the forms. He also gave evidence to the Tribunal that he did not fill in any forms in connection with his first student visa application. He stated that he had just ‘quickly’ signed some forms in Bangladesh and that he did not enter any information in his first student visa application form, Form 160 and Form 26.

14. However, a careful viewing of these documents shows that the handwriting in the applicant’s second student visa application and the handwriting in his first student visa application bear highly distinct similarities. Specific features of certain letters and numbers are unique and indistinguishable. The handwriting in Form 160 and Form 26, as well the handwriting in other forms associated with his first application for a student visa, including ‘Details of Relative’ and his ‘Student Visa Application Cover Sheet’ also bear highly distinct similarities to the applicant’s handwriting as reflected in his second student visa application. Moreover, the applicant travelled to Bangladesh [in] June 2014, returning to Australia [in] October 2014. When departing Australia he completed an ‘outgoing passenger card – Australia’. A scanned copy of the card shows distinct and unique similarities between the handwriting on the card and the handwriting in his first student visa application, Form 160, Form 26 and other forms associated with his first application for a student visa.

15. The above information was discussed with the applicant at the hearing. He responded that he had just signed the forms and did not do anything. In response to the Tribunal's s.424A letter, the applicant submitted a statutory declaration, 28 October 2016, stating:

    When I met with the broker and he got me to sign my name he also got me to write out my name in upper case and write some other letters and numbers. He may have copied my style of writing when completing my first student visa application. However there are many differences as well.

16. In her submission of 4 November 2016, the applicant’s representative also stated that there are various examples of handwriting in the first student visa application that are dissimilar to the applicant’s handwriting. She submitted that it is plausible that the broker may have attempted to imitate the applicant’s handwriting. She submitted that the Member is not a handwriting expert and obtaining an expert report is costly. She submitted that it is the Tribunal’s responsibility to obtain an expert report as evidence in support of any reasonable finding on this basis.

100.   It is uncontentious that the Tribunal is not a handwriting expert. However, a plain view comparison reveals distinct similarities in handwriting in the various documents referred to. Whilst there may also be dissimilarities, the Tribunal finds the similarities highly curious and problematic. More importantly, the applicant expressly stated at the hearing that he had just ‘quickly’ signed some forms in Bangladesh and that he did not enter any information in his first student visa application. He did not offer or provide any other explanation. The explanation provided by the applicant in his statutory declaration of 28 October 2016 is entirely new. If the broker had asked the applicant to write his name and ‘some other letters and numbers’, it would be reasonable to expect the applicant to have disclosed this to Tribunal at the hearing. He did not do so. The Tribunal is of the view that the applicant’s explanation in his statutory declaration is a belated invention designed to overcome the serious concerns raised by the Tribunal. The Tribunal finds the applicant has manufactured these claims.

101.   Finally, in the statement submitted in support of his application for a protection visa, the applicant claimed that, [in] September 2006, he was not home. When he returned home, his mother told him ‘one of the neighbour boys has been taken by the military, you can’t stay here anymore’. The applicant left for Bangladesh [in] October 2006.  However, in his second ITOA interview, conducted [in] September 2015, the applicant stated for the first time that the military had specifically come for him in September 2006, prompting him to leave Myanmar.

102. At the hearing, the applicant stated that his evidence at the ITOA interview was a misunderstanding. The military came to his home to look for him, but he was not there, so they went to next door to get the boy there. The applicant’s representative submitted that the applicant had given evidence at that interview without an interpreter and misunderstandings might have arisen in relation to his responses. In the response to the s.424A letter, it was stated that the information provided by the applicant is not inconsistent as ‘both are factual details relating to a traumatic event. We note the applicant’s sudden hysterics in the second ITOA interview when discussing the event, and we submit that this indicates some trauma in relation to that particular memory’. The Tribunal does not find these explanations satisfactory. The applicant’s explanation at the hearing and his reference to a ‘misunderstanding’ does not reconcile the inconsistencies between his written claims and what he stated at the ITAO interview. In addition, the applicant had worked for many years [using] the Rohingya and English languages. No persuasive explanation has been offered as to why this particular misunderstanding might have arisen. The applicant has provided no medical or psychological evidence to indicate that, at the time of the ITAO interview, his mental state might have affected the manner in which he provided his evidence. The Tribunal is not persuaded by the applicant’s explanation in his statutory declaration of [July] 2016 that in his ‘culture’ people don’t speak to psychologists for their problems.

103.   For all the above reasons, the Tribunal finds that the applicant has provided incorrect information in his protection visa application Form 866C and in the statutory declaration attached to the Form in relation to his experiences in Myanmar, the date of his departure from Myanmar, the period of his residence in Bangladesh, his schooling, the process and timing of obtaining his Bangladeshi passport and the process of obtaining his first student visa. However, for the following reasons, the Tribunal is not satisfied that the applicant had provided incorrect information in relation to his ethnicity and his citizenship.

104.   The applicant provided to the Department a Birth Certificate and a Household Members List, both purported to be from the Government of the Union of Myanmar, when he applied for a protection visa. On 7 September 2016, the Tribunal received from the Department the Document Examination Report in relation to the applicant’s Birth Certificate. The report concluded that the document ‘is a legitimately manufactured Burmese Birth Certificate; however it is not possible to determine whether the alteration to the personal details is authorised or unauthorised. The result is inconclusive.’ The alteration referred to in the report is in relation to marks in a column under the heading ‘date and place of birth'. As submitted by the applicants’ representative in her submission of 26 October 2016, the document ‘indicates “date of registration” five days after the applicant's uncontested date of birth, substantially identifies the applicant by name and by the names of his parents, and states separately: “District where birth occurred: Maung Daw”’. Having carefully considered the document and the Document Examination Report, the Tribunal did not reach a real state of satisfaction that the document is false or fraudulent.

105.   The applicant submitted fourteen witness statements testifying that he is a Rohingya born in Myanmar. All the applicant’s witnesses at the hearing also gave testimony to this effect. Whilst the testimony of some witnesses regarding the time when the applicant was residing in Myanmar was not persuasive, the Tribunal was unable to identify any inconsistencies or concerns in the witnesses’ evidence in relation to the applicant’s ethnicity, place of birth and the location of his parents. The weight of this evidence is overwhelming.  The Tribunal is satisfied that the applicant was born in Myanmar to Rohingya parents. The Tribunal accepts that the applicant is of Rohingya ethnicity and that his parents continue to reside in Maung Daw.

106.   In view of the Tribunal's findings above that the applicant resided in Bangladesh from January 2001, the Tribunal finds that the applicant lived in Myanmar from birth until, at least, January 2001. The country information before the Tribunal strongly suggests that laws in Bangladesh do not provide Rohingya with a means to gain any form of citizenship and that they are legally stateless.[7] Rohingya cannot derive citizenship from birth in the country or from marriage with local citizens. The laws do not afford Rohingya any opportunity to gain nationality’ in Bangladesh.[8] The Department of Foreign Affairs and Trade (DFAT) also reported in 2016 that ‘Rohingyas are not eligible for citizenship, including through marriage’.[9]

[7] United Nations High Commissioner for Refugees, Policy Development and Evaluation Service 2011, States of Denial: Review of UNHCR’s response to the protracted situation of stateless Rohingya refugees in Bangladesh, December, p. 8, CIS22193;

[8] US Department of State 2013, Country Reports on Human Rights Practices 2012 – Bangladesh, 1 April, Section 2.d, p.19, OG0DB543816.

[9] Department of Foreign Affairs and Trade 2016, DFAT Country Information Report – Bangladesh, 5 July, Section 3.13, p.11, CIS38A80121206.

107.   The US Department of State have indicated that the acquisition of passports is dependent on the possession of a birth registration document – ‘birth registration is required to obtain a national identity card or passport’.[10]

[10] US Department of State 2016, Country Reports on Human Rights Practices for 2015 – Bangladesh, 13 April, Section 6, p.27, OGD95BE926166.    

108.   According to The European Commission’s Humanitarian Aid Office, Bangladeshi authorities have, however, refused to register Rohingya at birth:

National authorities' refusal to register Rohingya at birth or provide marriage certificates and other civil documentation makes it difficult to assess the scale of the humanitarian needs of these people in Bangladesh[11]

[11] European Commission Humanitarian Aid Office 2016, ECHO Factsheet: The Rohingya Crisis, 29 May, p.3,  A 2011 Danish Immigration Service report draws on several sources to indicate that Rohingya have nevertheless historically been able to obtain passports.[12] In part, as one diplomatic source quoted in the report states, this is because ‘anything can be produced by anybody in Bangladesh, including birth certificates… corruption is very high and everything is for sale’. The report further states that ‘birth certificates from Bangladesh are issued on self-declared information’.[13]

[12] Danish Immigration Service 2011, Rohingya refugees in Bangladesh and Thailand, 1 May, pp.38-41, CIS20659.

[13] ibid

110.   The report proceeds to indicate that the illegal acquisition of Bangladeshi passports by Rohingya has historically been possible. The report canvasses the possibility of obtaining Bangladeshi passports:

The Director in the Ministry of Foreign Affairs, Ms. Ishrat Jahan Ahmed mentioned that it has been reported that some Rohingya managed to acquire Bangladeshi passports. This has also been evident from some labour migrants who travelled to the Middle East and who tried to have their passports renewed at the Embassy of Bangladesh in the Saudi Arabia, but were caught with false passports. In this connection, the Director mentioned that it is difficult for these Muslim people to obtain documents in Myanmar, and instead some of them have come to Bangladesh. The Director further explained that with the introduction of new machine readable passports in Bangladesh since 2010 and a computerized system to check national ID-cards, it has become more difficult to obtain a passport. A Rohingya would no longer be able to obtain a Bangladeshi passport according to the Director. Previously, a passport could be obtained on the basis of a letter from the local village Chairman, but now a national ID card is required.
…
The District Commissioner (DC) of Cox’s Bazar, Mr. Giashuddin Ahmed similarly informed the delegation that it is well known that some Rohingya have obtained false passports. Likewise, the DC underlined that Bangladesh has now issued national ID cards and made an efficient registration of the voters which eliminate the possibility for the Rohingyas to obtain false documents. The passports are also being issued carefully. There is now a special form which has to be completed in the Cox‟s Bazar area, as they are not yet issuing machine readable passports. The special form has to be supplemented by various documents, including documents for landownership, confirmation by five witnesses, local government certificate, electricity bills and telephone bills to certify the address etc. The process of issuing new passports is taken step by step according to the DC and gradually the old passports will be withdrawn and new ones will be issued.
…
According to UNHCR (Bangladesh) there are many instances where Rohingya may have obtained national Bangladeshi ID cards and passports, especially before 2008 when Bangladesh did not have a computerised system for ID cards. Bangladesh is at present moving towards “machine readable passports” but the old passports are still valid and apparently fairly easy to obtain. Rohingya have used Bangladeshi passports to travel often to the Middle East, Thailand and Malaysia. …The old passports are still valid for 10 years after being issued.[14] (emphasis added)

[14] ibid

111.   The report further indicates that these passports have been renewed by international Bangladesh Embassies:

Regarding passports, Chris Lewa explained that it has been reported from Rohingya in Saudi Arabia that Rohingya have renewed their passports at the Bangladesh Embassy in Saudi Arabia in order to travel to Europe and seek asylum. Chris Lewa further mentioned that some of the Rohingya in Saudi Arabia hold Pakistani documents.[15]

[15] ibid.

112.   The above information was consistent with the evidence of one of the applicant’s[relatives], [Mr D]. The Tribunal accepts [Mr D]’s evidence that he and his family departed Myanmar for Bangladesh and subsequently travelled to [Country 1] when he was a child. They obtained Bangladeshi passports and [Country 1] visas in Bangladesh. They were able to remain in [Country 1] and their passports were renewed on consecutive occasions in [Country 1]. [Mr D] stated that his aunt, however, was not successful in renewing her passport in [Country 1]. Her passport was confiscated, rendering her status in [Country 1] ‘illegal’.

113.   The country information before the Tribunal, which it accepts, indicates that there is no ‘legal’ pathway for Rohingya to obtain Bangladeshi passports. Whilst some Rohingya, in the past, have succeeded in obtaining Bangladeshi passports, this has not been through legal means or legitimate entitlements. As the Tribunal has found that the applicant is a Rohingya born in Myanmar to Rohingya parents, the Tribunal finds that the Bangladeshi passport the applicant travelled to Australia on is not a legitimate passport, obtained through legal means. Indeed, as indicated in the response to the enquiry sent by the Department to the Bangladeshi Department of Immigration and Passports in Dhaka in relation to the applicant’s passport, ‘there is no provision of issuing a Bangladesh passport to a person who is not a Bangladeshi’. The Tribunal finds that the applicant is not a Bangladesh citizen and that he is stateless. The Tribunal finds that the information he provided in his application for a protection visa and his statutory declaration in this regard in not incorrect. The Tribunal, therefore, finds that there was no non-compliance with s.101 of the Act in relation to the information provided by the applicant in his application for a protection visa and statutory declaration in this regard.

114.   Having regard to the Tribunal's findings above, the Tribunal did not reach a real state of satisfaction that the applicant’s Birth Certificate and his Household Members List are bogus and the contents of these documents are false. The Tribunal is not satisfied that there was non-compliance with s.103 of the Act.

115.   However, the Tribunal has already found that aspects of the information provided by the applicant in his protection visa application Form 866C and the statutory declaration attached to that form were incorrect. The Tribunal is satisfied that the applicant provided incorrect information in response to Questions 32, 34, 36, 47 and 65 of his application for a protection visa. The Tribunal is satisfied that the applicant provided incorrect information in paragraphs 3-20 of the statutory declaration attached to his application for a protection visa. The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice. The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

116. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2). In exercising, the Tribunal has considered the applicant’s responses to the s.107 notice about the non-compliance. The Tribunal must also have regard to the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 and to the other matters required to be considered as a matter of government policy as set out below.

The correct information

117.   The Tribunal considers that the correct information is that the applicant did not depart Burma  on ‘[date]-Jul-2007’, that he did not reside in ‘Burma’ from December [year] to October 2006, that he did not study at [name] Madarasa from February [year] to June [year], that he was not abducted from his home in Myanmar [in] June 2006, that he was not put into forced labour, that he was not treated harshly and mistreated on three occasions, that he did not  return home, that the military did not return to his village to take him or that he was ever of any interest to them, and that he did not leave Myanmar in October 2006. The Tribunal considers that the correct information is that the applicant departed Myanmar sometime before January 2001, that he attended the [High] School in Chittagong and the [Public] [College], that he obtained a Bangladeshi passport and was in possession of that passport from, at least, [December] 2006 and that he was actively involved in the process of applying and obtaining his first Australian student visa.

The content of the genuine document (if any)

118.   Whilst the section 107 notice also relied on s.103, the Tribunal has found that the documents identified are not bogus.

Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

119.   The Tribunal is of the view that the decision to grant the applicant a protection visa was based on his claims that he was stateless, that he was abducted by the Burmese military for the purposes of forced labour and that, if he were to go back, his previous difficulties with the authorities in Burma would have further attracted the adverse interests of the authorities. The Tribunal has accepted that the applicant is stateless. However, the Tribunal has also found that the applicant’s claims in relation to his experiences at the hands of the Burmese military were incorrect. The Tribunal finds that these aspects of the applicant’s claim for protection had a significant bearing on the grant of protection.

The circumstances in which the non-compliance occurred

120.   The applicant has persistently maintained that he did not give incorrect information to the Department in his application for a protection visa and statutory declaration so he has not provided any mitigating circumstances to explain why he would have done so. 

The present circumstances of the visa holder

121.   The Tribunal accepts that the applicant is [married]. The Tribunal accepts that they have both found the cancellation of the applicant’s visa and the associated processed distressful and that it has had an adverse impact on their relationship.

The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

122.   As noted above, the applicant has maintained that he did not give incorrect information to the Department in his application for a protection visa and statutory declaration.

Any other instances of non-compliance by the visa holder known to the Minister

123.   On the basis of the evidence before the Tribunal, there are no other instances of non-compliance by the applicant known to the Minister.

The time that has elapsed since the non-compliance

124.   The relevant non-compliance in the present case took place when the applicant made his application for a protection visa in March 2010 so over seven years have elapsed since then.

Any breaches of the law since the non-compliance and the seriousness of those breaches

125.   On the basis of the evidence before the Tribunal, the applicant has not breached the law since the relevant non-compliance.

Any contribution made by the holder to the community

126.   The Tribunal accept that the applicant has worked as a Rohingya [worker] for many years and that he has been actively involved in the Rohingya community in Australia. 

Other Considerations

127.   In addition to the prescribed circumstances discussed above, the Tribunal has had regard to the Department’s guidelines,[16] which set out a number of matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s.109, including:

[16] PAM 3 – Migration Act - Visa cancellation instructions > General visa cancellation powers (s109, s116, s128, s134B & s140) - s109 Deciding whether to cancel – Matters that should be taken into account (re-issue date 21/8/16).

·whether there are mandatory legal consequences to a cancellation decision; for example,

§whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with non-refoulement obligations;

§whether there are provisions in the Act preventing the person from making a valid application for any visa without the Minister’s personal intervention (e.g.s.46A, s.46B, s.48, 48A etc.); and

§whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and is liable to be detained under s.189 and removed under s.198

128.   The Tribunal has found that the applicant is not a citizen of Bangladesh and has no right to Bangladeshi citizenship. The Tribunal has also found that the applicant is a Rohingya from Myanmar and effectively stateless. As the applicant is stateless, he cannot return to or be refouled to Bangladesh or Myanmar.

129. If the applicant’s protection visa were to be cancelled, he would become an unlawful non-citizen. Under s.46A(l) of the Act, he would be barred from making a valid application for a further visa, including bridging visas. Consequently, he would be liable to be detained under s.189 of the Act. He would also be affected by the operation of s.48A(1B) of the Act, barring him from making a further application for a protection visa while in the migration zone. The effect of these provisions is that the applicant will not be able to make any valid visa application while in Australia, unless the Minister intervenes and lifts the decision bars. The Tribunal, therefore, accepts that indefinite detention is a likely consequence of the cancellation decision. The Tribunal understands that the applicant might be granted a Removal Pending Bridging Visa (RPBV) or a Bridging visa E (BVE) without application. However, there is no certainty that the applicant would be granted these visas. There is also insufficient information before the Tribunal to indicate that the applicant would be an eligible candidate for community detention. The Tribunal, therefore, is not satisfied that indefinite detention is not likely. The Tribunal has placed significant weight on these mandatory legal consequences to the cancellation.

130.   The Department’s guidelines also require that any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members) should be considered.

131.   The Tribunal has placed weight on the fact that the applicant has been married to [an] Australian citizen, since August 2015. It was evident from [his wife]’s evidence at the hearing that the marital bond between her and the applicant is strong and genuine. The Tribunal also accepts that [his wife] has been deeply affected by the cancelation of the applicant’s visa and the impact of the associated uncertainty on the relationship.

132.   The Tribunal has found that the applicant is a stateless Rohingya and that he cannot return to or be refouled to Myanmar. Nevertheless, in considering other relevant matters, the Tribunal is mindful of DFAT’s January 2017 assessment that ‘official and societal discrimination against Rohingya in Rakhine State, on the basis of their ethnicity, is endemic’.[17] DFAT also assessed that:

[17] DFAT, Country Information Report Myanmar, 10 January 2017.

[H]igh levels of religious and ethnic tensions remain, and there is a high risk of further violence. This is exacerbated by the recent emergence of an armed Muslim group in Rakhine, with alleged links to international jihadist groups. Violence in Rakhine State has potential to inflame existing religious tensions between Muslim and Buddhist communities in other parts of the country.[18]

[18] Ibid.

133.   More recently, communal tensions and violence in Rakhine state have triggered an exodus of about 300,000 Rohingya Muslims, amid reports of security forces and local militia burning Rohingya villages, and ‘accounts of extrajudicial killings, including shooting fleeing civilians’.[19] Prince Zeid bin Ra'ad Zeid al-Hussein, the United Nations High Commissioner for Human Rights, has referred to the situation as ‘a textbook example of ethnic cleansing’.[20]

[19] Rohingya: United Nations decries 'textbook example of ethnic cleansing' in Myanmar, ABC News, 12 September 2017 < Ibid

Conclusions

134.   In Sullivan v Civil Aviation Safety Authority,[21]  the Full Court of the Federal Court considered a review by AAT of a decision to cancel an aviation licence.  In that case, Flick and Perry JJ said that:

[21] (2014) 226 FCR 555

When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[22]

[22] At [120]

135.   In the present case, the Tribunal remains concerned that the applicant has continued to maintain incorrect information about the claims put forward in connection with his application for a protection visa. Protection visa applicants who provide untruthful accounts of their circumstances undermine the integrity of the migration system. The applicant has engaged in such conduct and the Tribunal considers his conduct to be serious.

136.   The Tribunal also recognises the serious consequences which flow from the decision to cancel the applicant’s visa on the basis that he provided incorrect information in his application for a protection visa.  In this case, the consequences of the cancellation are particularly grave. The Tribunal gives significant weight to the applicant’s likely indefinite detention as a mandatory legal consequence of the cancellation. The Tribunal considers this consequence to be serious, severe and harsh. To a lesser extent, the Tribunal also gives weight to the impact of the cancellation on the applicant’s wife and the potential disintegration of the relationship should the applicant be indefinitely detained. The Tribunal considers that these matters outweigh the considerations supporting the cancellation of the applicant’s visa. 

137.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. However, having carefully considered all the relevant circumstances, as discussed above, the Tribunal concludes that, in the particular circumstances of this case, the visa should not be cancelled.

DECISION

138.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Shahyar Roushan
Senior Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)     purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)     was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101Visa applications to be correct

A non‑citizen must fill in or complete his or her application form in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

103Bogus documents not to be given etc.

A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)     giving particulars of the possible non‑compliance; and

(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)     stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e)     informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)     requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)     visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

US Department of State 2013, Country Reports on Human Rights Practices 2012 – Bangladesh, 1 April, Section 2.d, p.19, 28 June 2016, OG0DB543816;
US Department of State 2013, Country Reports on Human Rights Practices 2012 – Bangladesh, 1 April, Section 6, p.27, OG0DB543816; Burmese Rohingya Organisation UK 2015, The Rohingya, the Citizenship Law, temporary registration, and implementation of the Rakhine State Action Plan, April, CISEC96CF1818; US Department of State 2016, Country Reports on Human Rights Practices 2015 – Bangladesh, 13 April, Section 2.d, p.18, OGD95BE926166.