1714840 (Migration)

1714840 (Migration) [2018] AATA 1962 (23 April 2018)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714840
MEMBER:Brendan Darcy
DATE OF DECISION:  23 April 2018
DATE CORRIGENDUM
SIGNED:2 May 2018
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

On the decision record cover page “DATE OF DECISION: 23 March 2018, has been amended to read 23 April 2018”.
Brendan Darcy
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714840
MEMBER:Brendan Darcy
DATE:23 March 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 200 (Refugee) visa.
Statement made on 23 April 2018 at 4:30pm

CATCHWORDS
Migration – Cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 200 (Refugee) – Incorrect answers in application – Bogus document – Whether non-compliance exists as described in s.107 notice – Significant amount of incorrect information provided – Grant of visa based substantially but not wholly on incorrect information – Limited extenuating circumstances – Risk of refoulement mitigated – Decision affirmed
Migration – Whether s.375A certificate is validly issued – Whether “internal working documents” give rise to public interest immunity – Balancing release of information against requirements of Privacy Act – Subsequent s.375A certificate issued – Information pertaining to identity assessment – Information revealing investigative methods of the department – Certificate validly issued
LEGISLATION
Evidence Act1995 (Cth), s 130(4)(c)
Migration Act 1958 (Cth), ss 48, 101(b), 104, 107, 109, 140, 359A, 362A(2), 375A, 376
Migration Regulations 1994 (Cth), rr 2.12, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
MZAFZ v Minister [2016] FCA 1081
Sanky v Whitlam (1978) HCA 43
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 200 (Refugee) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect information as required by s.101(b) and because the delegate placed more weight on those unfavourable factors over favourable factors in having the visa cancelled.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 13 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.
The applicant was represented in relation to the review by his registered migration agent, who attended the Tribunal hearing. In attendance to support the applicant were three members of the Christian Chin community. He did not provide any oral evidence as witnesses.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 Immigration (the Department; now the Department of Home Affairs) of any incorrect information of which they become aware and of any relevant changes in circumstances.
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.
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.
Relevant background
Relevant information pursuant to s.107 notice
The s.107 notice advised that a delegate of the Minister considered that the applicant may not have complied with s.101(b) and/or s.104 of the Act. Section 101 states:
Section 101: Visa applications to be correct
s101. 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.
The applicant lodged a subclass 200 visa application [in] May 2013 at the Australian High Commission in Kuala Lumpur. The information was contained in a completed 842 form which stated that his name was [Name 1], his country of citizenship was Myanmar, and his date of birth was [Date 1]. The applicant claimed to have married [in] 2006 and departed Myanmar, to which country he feared returning, [in] February 2008; he arrived in Malaysia [in] February 2007.
At questions 27 and 32 of the submitted form, the applicant wrote that he departed Myanmar illegally via [Country 1]. At question 36, the applicant listed all his jobs in the last fifteen years. At questions 29, 30, 31 and 36, the applicant directed the Tribunal to consider the attached UNHCR Resettlement Registration Form (RRF) which stated that the applicant’s name was [Name 1] whose date of birth was [Date 1] and that he had no aliases.
The applicant was granted the subclass 200 (Refugee) visa [in] May 2014.
Upon the applicant’s arrival in Australia [in] July 2017, an officer of the Department at the Melbourne airport discovered in the applicant’s possession a Burmese (Myanmar) passport ([Passport Number 1]) issued [in] 2002 in Yangon, Myanmar. The passport expired [in] 2009 and bore the name [Name 2] whose date of birth was [Date 2] with a photo resembling the applicant. The Department’s Document Examination Unit verified the document to be a genuine Burmese passport.
The Department also found that the passport issued in Malaysia was renewed by Burmese officials [in] 2009; that the applicant departed Yangon [in] October 2003 and arrived in Pulau Penang on the same day; and that the applicant had successive valid work visas issued to him.
On 10 May 2017, the Department’s forensic facial image examiner found there were several indications that the person depicted in [Passport Number 1] had similarities and no unexplainable dissimilarities to the person shown in photographs taken by Australian authorities.
On the basis of this series of information, it was put to the applicant that the information appeared to be incorrect and non-compliant with s.101(b).
The applicant was forwarded a Notice of Intention to Consider Cancellation (NOICC) on 8 March 2017 which was replaced by another NOICC on 17 May 2017.
The applicant responded to the initial NOICC on 30 March 2017 in a statutory statement dated 28 March 2017 and signed by the applicant. In this response, non-compliance with s.101(b) was denied and the applicant maintained that he had only ever been known as [Name 1] and did not know the other identity mentioned in [Passport Number 1] and that he had provided the correct information. The applicant claimed the photograph in [Passport Number 1] did not resemble him and suggested one of his friends inadvertently packed the passport when his luggage was repacked into a large suitcase.
The applicant did not respond to the second NOICC or attend an interview.
The applicant applied to have the cancellation decision reviewed on 11 July 2017, with no decision record attached to the application.
The applicant also claimed that he did not attend an interview with the Department on 7 February 2017 because he did not receive the invitation.
The applicant was notified of the cancellation decision on 7 July 2017 with a record of the decision attached. The applicant then applied to have that cancellation decision reviewed by the Tribunal on 11 July 2017.
Statutory declaration to the Tribunal
On 8 September 2017, the applicant submitted a statutory declaration to the Tribunal detailing to it that the applicant’s real name was [Name 2], born in [a particular location] in Chin state in Myanmar on [Date 2]. This statutory declaration is attached to this decision record.
The statement goes on to say that the applicant fled Myanmar in 2006 and that the passport he used to travel to Malaysia by air had his genuine identity details. This was the passport that the officials discovered when the applicant arrived in Australia [in] July 2014. The applicant claimed that he used a fraudulently obtained passport with the false and misleading name [Name 1] on the basis that he feared the Malaysian authorities would find out he claimed refugee status when he held a work visa and because he was unsure whether his passport issued in Myanmar was fraudulently obtained.
The applicant provided the following background as to the reasons he did not disclose correct information to Australian authorities as he no longer wished to lie anymore.
·The applicant was unaware his expired passport was in his suitcase;
·The applicant assumed the identity of [Name 1] born on [Date 1] as he worried that if the authorities in Malaysia discovered he applied for refugee status he would be returned to Myanmar, and he was unsure whether his passport with his actual identity was real or fake;
·The applicant used this assumed identity to fraudulently obtain a Burmese passport; to register with the UNHCR and Australian officials assessing his subclass 200 visa application; and
·The applicant did not disclose his actual identity to the Department in his March 2017 responses to the NOICC and he did not attend an interview with the Department because he was afraid and illiterate.
The applicant detailed the following information about his family composition:
·The name of his [wife], was correct but the applicant and his wife were married in or around 2000, not 2006 as entered on the submitted 842 form;
·The applicant and his wife who resides in Myanmar, are separated and he is no longer in contact with her;
·His parents’ details are listed on the 842 form correctly but did not include his real siblings on the form; instead he listed his ‘cousin brothers’ and ‘cousin sisters’ as his siblings;
·The applicant did this in regards to his siblings as two of his relatives are in Australia, including his father’s niece and his father’s adopted daughter (the applicant’s sister) to improve his chances in his application for refugee status; and
·The details of his real siblings are [Sibling 1], living in Myanmar; [Sibling 2], who lives in Malaysia; and his brother, [Sibling 3] , living in [Country 2] since about 2011 as a refugee after spending time in Malaysia where he was registered with the UNHCR.
The applicant detailed the following information about his travel and employment history:
·The applicant was born in Chin state in a remote village and he started going to school at eight or nine and continued to grade 4;
·Thereafter the applicant worked with his parents doing farming work and the applicant did this work until he fled Myanmar;
·In 2003 he organised a passport through an agent and used the passport to depart for Malaysia via [Country 1];
·Between October 2003 and July 2014, the applicant lived in Malaysia and an agent helped him gain employment visas;
·Between 2003 and 2008 in Malaysia, he worked in [a business] in Penang and then moved to Kuala Lumpur where he did various low skilled jobs;
·The applicant remained in Kuala Lumpur until his 2014 departure;
·While in Kuala Lumpur the applicant had two different addresses;
·The applicant was illegally living and working in Malaysia after 2008 and found surviving difficult; and
·The applicant registered with the UNHCR in or around 2010 with an assumed identity.
During the scheduled hearing, the Tribunal put it to the applicant under the s.359A provisions regarding adverse information that the Department claimed that when he lodged Form 842 for an offshore humanitarian visa subclass 200, questions 2, 23, 25, 26, 27, 28, 32 and 36 contained incorrect information. After an opportunity to consult with his representative, the applicant conceded that he provided incorrect information to the Department and a bogus document in the form of a fraudulently obtained passport with an assumed identity of [Name 1]. He continued to assert that he had not provided incorrect information in a statutory declaration as his response to the NOICC issued on 17 March 2017 and that he did so because he feared being removed from Australia to his country of nationality.
The Tribunal also notes that the applicant instructed his representative about the whereabouts of the applicant’s siblings in its correspondence dated 15 March 2018. The submission mentions that the his sister, [Sibling 1], is no longer in Myanmar and now resides in [Country 3]; that she departed as the authorities require her to complete forced labour; that only his parents remain in his country of reference and that his parents informed the applicant they were fearful he would be harmed . It was also mentioned that the applicant fears he would be questioned on return and that the authorities ill treat him and his parents harshly because they belong to the Chin minority. In addition, it was stated on the applicant’s behalf that his mental health has been seriously impacted upon by the visa cancellation and that since the Tribunal’s hearing, his health has deteriorated as his anxiety has increased; because he does not have work rights; and he has not obtained further medical evidence as he requires an interpreter to attend his medical appointments.
Non-disclosure notices
During the scheduled hearing, the Tribunal raised with the applicant that there was a certificate of non-disclosure under s.375A of the Act issued on 14 July 2017 which covered an identity assessment of the applicant.[1] The Tribunal raised these matters under the Act’s adverse information provisions and stated that it may make up the reason, or part of the reason, for affirming the delegate’s decision to cancel the visa.
[1] [File number] Folio 129.
The Tribunal went on to further explain that the first piece of information pertained to the Department’s priority caseload assessment document outlining the dates of various decisions as this cancellation progressed. The Tribunal added that it did not find it very relevant but might indicate the amount of careful work over a period of time that the Department undertook in assessing its cancellation decision. The Tribunal explained the second piece of information pertaining to an identity assessment report was relevant in relation to the applicant’s overall credibility when assessing the applicant’s claims about facing fear into the future.
The applicant did not respond immediately and the applicant’s representative submitted a response to these matters in a post hearing legal submission. The submission stated that the Tribunal should not draw any negative credibility findings about the different information provided to the Department and to consider the reasons the applicant provided incorrect information about his identity as raised by the applicant in the hearing.
On 1 March 2018, the Tribunal invited the applicant to comment on the validity of the non-disclosure notice with a copy of the notice attached and to respond by 15 March 2018. The applicant’s representative responded on 15 March 2018 to raise the following issues: that notice was issued not to disclose “internal working documents” as it would not be in the public interest; however MZAFZ v Minister [2016] FCA 1081 held that internal working documents are not subject to this immunity and the certificate was invalid on that occasion. The representative added that as the internal working documents pertained to the applicant’s identity assessment it was the main factor for the cancellations and that the Member considered the documents relevant as it raises concerns about the applicant’s overall credibility which may make up the reason or part of the reason for affirming this delegate’s cancellation decision. Accordingly, the applicant’s representative submitted ‘that the documents should be provided to the Applicant with the relevant names redacted.’[2]
[2] AAT Folio 43-45.
Having considered the representative’s arguments, the Tribunal concurs with the argument put that this non-disclosure notice did not satisfy MZAFZ and was invalidly issued.
On 4 April 2018, the Department issued a revocation of the notice dated 4 July 2017 and then re-issued a new non-disclosure notice under s.376 of the Act. The non-disclosure notice applied to folios 8-11 and provided reasons for the non-disclosure including that it would be against the public interest as certain information was provided by a third party and a number of client identification numbers, as well as revealing confidential investigative methods used to detect breaches of the law and thus may be prejudicial to other investigations.
On 5 April 2018, the Tribunal wrote to the applicant and his representative seeking inviting comment about the non-disclosure notice pursuant to the Act’s adverse information provisions. The correspondence mentioned the information would make the reason or part of the reasons for affirming based as it reflected upon the overall credibility when assessing the applicant’s claims about facing a real chance of persecution or a real risk of significant harm should the applicant’s visa remained cancelled. Attached to the correspondence was the revocation notice, the new non-disclosure notice and Folio 7, 12 and 125-128 (as the Tribunal was no longer subject to non-disclosure obligations).[3]
[3] AAT Folio 56-68.
On 20 April 2018, the applicant’s represent responded to the 5 April 2018 invitation for comment. It was submitted that the new non-disclosure certificate was invalidly issued based on the same arguments put in its response to the earlier now revoked non-disclosure notice. It also added that the Department stated that disclosure may reveal confidential investigative methods which would not satisfy the public interest immunity test under s.130(c)of the Evidence Act (Cth), as the Department. In this regard, the representative argued that ‘may’ reveal or prejudice investigations implied there was only a possibly of non-disclosure when the provision was under s.130(c) for the evidence ‘would’ prejudice an investigation was higher test for non-disclosure. Thus, it was argued, denied the applicant procedural fairness given the seriousness of the cancellation decision under review. [4]
[4] AAT Folio 54-53.
Having carefully considered this argument, the Tribunal is satisfied that the s.376 non-disclosure notice issued 2014 was validly issued and that it would have been contrary to the public interest to disclose these documents. On re-examination of the departmental identity assessment report (folio 7-11), the Tribunal finds that these internal working documents name not only the names, personal details and photographs of other individuals but that the internal workings pertain to ensuring the integrity of Australia’s immigration system. The Tribunal finds revealing these internal working document, even if were redacted as recommended by the applicant’s representative, would prejudice the proper functioning of the government of the Commonwealth. The Tribunal accordingly is satisfied that the Department’s revocation and new non-disclosure notices balances the general desirability that documents of this kind should not be disclosed against the need to provide them in the interest of justice, as required by Sanky v Whitlam (1978) HCA 43 [38].

The Tribunal relevantly notes that the applicant has not asserted to the Tribunal that he submitted a false alias in his application for refugee visa or denied the alias was false to the Department right up to his response to the NOICC, signifying that this adverse information that cannot be disclosed under s.376 was not central to the reason for affirm the decision to remain cancelled. It is the belated timing of the applicant’s admission that is more troubling to the Tribunal.
Also relevantly, section 362A(2) does not authorise the release of information where the release of that information would override the requirements of the Privacy Act.
In parenthesis, the Tribunal outlined to the applicant the reason the documents may be relevant without any of the documents or specific information being disclosed to the applicant pursuant to s.376 and the applicant was provided with a fair opportunity to comment as required by the adverse information provisions of the Act.
Was there non-compliance as described in the s.107 notice?
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. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b).
The applicant also conceded fraud in his 8 September 2017 statutory declaration (attached to this decision) and in his oral evidence at the scheduled hearing which reiterated the non-compliance with s.101(b) referred to in the s.107 notice.
There is no dispute either between the applicant, the applicant’s representative or the Tribunal that incorrect information was provided to the Department as outlined in the s.107 notice or that the applicant was non-compliant with s.101(b).
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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 this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994. Briefly, they are:
·the correct information;
·the content of the genuine document (if any);
·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;
·the circumstances in which the non-compliance occurred;
·the present circumstances of the visa holder;
·the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
·any other instances of non-compliance by the visa holder known to the Minister;
·the time that has elapsed since the non-compliance;
·any breaches of the law since the non-compliance and the seriousness of those breaches; and
·any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.
The Tribunal has considered these elements in its consideration as to whether to exercise the discretion to cancel the applicant’s visa. The Tribunal has also considered some further circumstances in its deliberations as to whether the visa should be cancelled or not.
2.41(a) of the Regulations – the correct information
The incorrect information in the application for Subclass 200, the visa under review, included: the applicant, [Name 1], was also known as [Name 2] born on [Date 2] and that he held a passport numbered [Passport Number 1] which was issued by the Burmese authorities. Under the identity of [Name 2], the applicant departed Myanmar [in] October 2003 on a genuinely issued passport as a holder of a Malaysian visa. The applicant arrived on the same date and thereafter engaged in various forms of employment in Malaysia for a period of approximately eleven years, as the holder of various temporary Malaysian visas in the name of [Name 2], prior to being granted a subclass 200 refugee visa and travelling to Australia in 2014.
In his application for refugee status, the applicant did not disclose he had been known as [Name 2] and provided incorrect information about the dates of his residence in Myanmar, his method of travel from Myanmar to Malaysia and his dates of residence in Malaysia. The applicant’s failure, the delegate stated, to disclose his alias and provide information about the indemnity and his relevant immigration history, raised concerns about the biodata information he provided and the humanitarian claims which would have been material to the grant of the visa under review. The information also indicated to the delegate that the applicant may not have been subject to appropriate security checks.
During the scheduled hearing it was discussed with the applicant there was a great deal of incorrect information including his travel history, his marriage, his employment history, as well as his name. The applicant claimed that his ethnicity as a Chin from Myanmar was correct along with his place of birth and gender. The applicant acknowledged that his siblings include one living in [Country 2], one in Malaysia and one back in Chin province in Myanmar.
In conceding that much of the information was not correct with respect to his identity, personal particulars and family composition, the applicant acknowledged that providing such information in his submitted application forms was a serious matter.
In having regard to this prescribed provision, the Tribunal assesses that the applicant did provide critical information in his application forms to the Australian authorities that was incorrect and in doing so acted fraudulently and with no regard to the appropriate integrity and security checks implied in seeking asylum or residency to Australia.
Nevertheless it does accept that some information was correct. Accordingly, the Tribunal only places a little weight with regards to providing some correct information in favour of the visa not remaining cancelled and significant weight with regards to providing incorrect information in favour of the visa remaining cancelled.
2.41(b) – the content of the genuine document (if any)
The delegate found that the applicant’s passport – numbered [Passport Number 1] in the name of [Name 2] – bears a photograph of [the applicant] and that it belongs to him. The delegate said the passport had been assessed to be a genuine Burmese passport and was satisfied the information it provided was true information about the identity and travel history of the applicant. The delegate did not use this passport for travel to Australia and had it concealed in his luggage and continued to deny his ownership of the document in his March 2017 NOICC response. The delegate stated this demonstrated the applicant did not want his alternate identity to be known as it was likely that this identity did not support his humanitarian profile leading to the grant of this visa under review and did not provide any weight in favour of the applicant in providing incorrect information in this way.
During the hearing, the applicant stated this was a serious matter but he feared telling the truth at the time he applied for this subclass of visa. Based on the information provided, he feared that if the decision maker knew he came to Malaysia with a concealed passport, his otherwise genuine fears in returning to Myanmar would not be believed.
The Tribunal places significant weight on the applicant’s concealed passport genuinely reflecting his identity and travel history in favour of the visa remaining cancelled.
2.41(c) – 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
As the delegate noted, the applicant was referred to Australia by the UNHCR and there is little information on hand to detail the applicant’s individual claims. However there is information that the applicant informed the UNHCR that his identity was [Name 1] and did not declare he was known as [Name 2]. The information provided to the UNHCR included details about his life in Myanmar, and his departure and residencies in Malaysia, which were not correct. The applicant concealed his identity to both the UNHCR and the Australian authorities with the applicant’s subclass 200 visa application containing incorrect information. The incorrect information, as well as a bogus document, appeared to make part of the reason the applicant was granted the visa under review.
During the hearing, it was discussed that it appeared to the Tribunal the visa was granted substantially but not wholly on the incorrect information and bogus document provided to the decision maker. For instance, the Department did take into account the humanitarian situation in the applicant’s country of nationality arising from a range of independent sources. The applicant did not offer any further comment.
The Tribunal notes that the country information about persecution and systematic discrimination in Myanmar towards ethnic Chin who are Christians would have weighed in favour of the applicant’s assessment when the refugee visa was granted in 2014. To this extent, the Tribunal finds that the reason for the visa being granted was substantially but not wholly on the incorrect information provided. The Tribunal accordingly places some weight on the decision to grant the visa under review to the applicant being based partially but not wholly on incorrect information and a bogus document towards the visa remaining cancelled.
2.41(d) – the circumstances in which the non-compliance occurred
The applicant claimed in his NOICC response – signed statutory declaration – that non-compliance with s.101(b) was denied and he maintained he had only ever been known as [Name 1] and did not know the other identity mentioned in [Passport Number 1] and that he had provided the correct information. It is noted that the delegate did not accept this.
During the scheduled hearing, the applicant said that he did knowingly provide incorrect information as he feared an unfavourable outcome of his visa application. The applicant explained to the Tribunal that if he had told the UNHCR and the Australian authorities in Malaysia that he lawfully arrived by air on a valid passport they would doubt the applicant had been persecuted or was a refugee. The applicant explained that he claimed to the United Nations that he could not withstand the oppression of the military; and that the military in Myanmar forced him and his villagers into forced labour and to [undertake a particular task in] combat zones. The applicant added that the reasons for the persecution were based on his religion as a Christian and his ethnicity as a Chin Burmese. The applicant also claimed he feared this information about his identity would be shared with his then employer in Malaysia but was unable to explain either the relevance of that fear or provide a reason as to why the UNHCR or the Australian officials in Malaysia would share that information with his employer, expect to mention that he was confused by the process and that there were many rumours about that process. At this point, the applicant’s representative raised that the applicant’s trauma around forced labour and fear of authority created a circumspect approach in providing correct information and had the applicant had legal advice he would have approached the application process for refugee status differently. The Tribunal asked whether the applicant had used any services provided by co-religionists of the Catholic Church in Penang, to which the applicant responded that he worked six days a week and did not travel much, although he had moved from Myanmar to Malaysia for safety and from Penang to Kuala Lumpur for employment. The applicant claimed it was not until he arrived in Kuala Lumpur when other Chin asylum seekers explained to him about applying to the UNHCR.
The Tribunal also notes that the applicant made an additional reason for providing incorrect information in his statutory declaration submitted to the Tribunal, namely to increase his chances of being granted the visa if the Australian officials were aware the applicant had close relatives in Western countries.
It is the Tribunal’s assessment that while the applicant genuinely assessed that his application for refugee status would be enhanced by providing incorrect information for the reasons claimed, the reasons themselves were poorly considered and misinformed and do not demonstrate that there were any significantly extenuating circumstances outside his accepted background as a victim of the Burmese military. Accordingly the Tribunal only places some weight on the circumstances in which the non-compliance occurred in favour of the visa not remaining cancelled.
2.41(e) – the present circumstances of the visa holder
The applicant resides in [a particular location in Australia] where he shares accommodation with a fellow ethnic Chin. The applicant had been working in [a particular business] for five days a week but not since his visa was cancelled. The applicant claimed to be healthy and did not advance that he had any disease or disabilities. Although separated from his wife back in Myanmar, the applicant is not in any current romantic relationships or in a de facto relationship and does not have any children, either in Myanmar or in Australia.
The Tribunal notes that the delegate describes the applicant as a hard working member of the Australian community, compliant with Australian laws and an active member and supporter of the Chin Catholic Association in Australia. It also mentions the applicant has a sister in Australia and he provides financial support to family members back in Myanmar. With no evidence to the contrary, the Tribunal accepts this to be the case, at the time of the hearing.
Despite claiming to in good health since the hearing, the applicant instructed his representative to inform the Tribunal that his mental health has been seriously impacted upon by the visa cancellation and that since the Tribunal’s hearing, his health has deteriorated as his anxiety has increased; because he does not have work rights; and he has not obtained further medical evidence as he requires an interpreter to attend his medical appointments. Given the hearing was more than six months ago, it would be reasonable to expect the applicant to have provided some medical evidence from a medical professional to support this health claim of significant mental health deterioration. Nevertheless the Tribunal accepts that visa cancellation process in combination with idleness (no work rights) has been stressful. Without any evidence to support any serious deterioration of mental health, the Tribunal places some weight in favour of the visa not being cancelled due to mental stress.
In cumulatively considering these aspects about the applicant’s present circumstances, the Tribunal places some, but not a considerable amount of, weight on the applicant’s visa not remaining cancelled.
2.41(f) – the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no information available that the applicant has been charged or arrested for any offences under Australian law or any other pending court matters. Accordingly, the Tribunal places some weight on this in having the visa not remaining cancelled.
2.41(g) – any other instances of non-compliance by the visa holder known to the Minister
The delegate on behalf of the Minister was unaware of any other non-compliance and gave a little weight to it in favour of the applicant. For the same reasons, the Tribunal is also unaware of any further instances of non-compliance and places a little weight on this in favour of the visa not remaining cancelled.
2.41(h) – the time that has elapsed since the non-compliance
Almost five years have elapsed since the applicant’s admitted non-compliance occurred when he lodged an application for an offshore protection visa on 2 May 2013. In the context of the seriousness of the non-compliance, the Tribunal places only a little weight on this length of time which it considers notable but not considerable, in favour of the visa not remaining cancelled.
2.41(j) – any breaches of the law since the non-compliance and the seriousness of those breaches
A national police certificate is on departmental file indicating that the applicant does not have any disclosable court outcomes.[5] There is no available evidence of the applicant having broken any serious laws or visa conditions placed on him since the non-compliance. The Tribunal places some weight on this in having the visa not remaining cancelled.
2.41(k) – any contribution made by the visa holder to the community
[5] [File number] Folio 93.
The delegate accepted that the applicant is a member of the Lautu and Chin Catholic community in Australia and is an active participant. Similarly, the Tribunal also accepts this and places some weight on this in favour of the visa not remaining cancelled.
Other relevant factors
The prescribed circumstances as listed under regulation .2.41 are considered above. However case law provides that this is not an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case. The Department’s procedural guide also requires delegates to take into account other factors, such as whether the visa would have been granted with the correct information, Australia’s international obligations or whether an automatic cancellation may have occurred under s.140 of the Act. The Tribunal has considered the following factors in addition to those as required under r.2.41.
Overall credibility
With regard to the applicant’s overall credibility, the Tribunal finds that the applicant conceded at the scheduled hearing that he provided incorrect information and a bogus document and he did provide compelling and understandable reasons about the circumstances under which he provided them. The Tribunal is willing to provide the applicant the benefit of the doubt about his testimony during the scheduled hearing and accepts the reasons he provided about the incorrect information and the oral evidence regarding past harm in Myanmar as a Christian of Chin origin and his genuine personally-held fears of persecution in returning to Myanmar.
Australia’s international obligations
In his response to the s.107 notice, the applicant did not provide detailed humanitarian claims, other than to state he feared persecution and torture by the Myanmar military and evidence that he is a member of the Lautu and Chin Catholic communities in Australia and his UNHCR RRF details that he is a Christian of Chin ethnic origin from Chin state.

The delegate considered whether Australia may have protection obligations owed to the applicant under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention) and considered the report from January 2017 from the Department of Foreign Affairs and Trade about the situation for Christians and Chin people in Myanmar. The delegate assesses that Christians are generally tolerated in Myanmar and face only a low level of official and societal discrimination. Consequently the delegate only provided a minimal weight on the applicant facing the possibility of having claims relevant to Australia’s international agreements.
The Tribunal has considered the applicant’s claims based on his oral evidence at the scheduled hearing. It is noted that the applicant did not take into consideration Australia’s obligations outside of the Refugees Convention. It has also considered the arguments in the 13 October 2017 post hearing submission by the applicant’s representative that the applicant had been subjected to forced labour; is a survivor of trauma and severe treatment at the hands of the authorities; that he is illiterate and speaks Lautu and Chin fluently but not Burmese. The submission outlines country information that the Chin Christians have been subjected to forced labour, confiscation of land, coerced conversion to Buddhism and the destruction of Christian houses of worship and that Chin state remains heavily militarised with well documented cases of human rights violations. The Tribunal also notes that the applicant instructed his representative to mention that the his sister is no longer in Myanmar and now resides in [Country 3]; that she departed as the authorities require her to complete forced labour; that only his parents remain in his country of reference and that his parents informed the applicant they were fearful he would be harmed. The Tribunal places some weight on the applicant’s accepted personal circumstances and the country information about Myanmar regarding the visa not being cancelled when considering the applicant may be at risk of refoulement as a Christian of Chin ethnicity.
The submission also states that if the visa remains cancelled the applicant may be deported and therefore at risk of refoulement. It also argued that the effect of s.48 and r.2.12 may mitigate refoulement by permitting the applicant to apply for an onshore protection visa but that it is not a legally mandatory consequence of the cancellation of this visa in the applicant’s situation as he has already been assessed by the UNHCR and an Australian diplomatic mission. The Tribunal also considered while the operation of s.48 may not limit the applicant from applying for an onshore protection visa (as well as a limited number of visa classes); it accepts that this opportunity is not legally mandatory. However, as there are no regulations regarding protection or humanitarian visas lodged and determined outside the migration zone, the Tribunal finds the risk of refoulement in this case will be substantially mitigated when assessed against the applicant’s actual identity and detailed claims for protection.
Hardship
The Tribunal accepts there is a risk of the applicant being detained, even indefinitely, or deported as a legal consequence if this visa remains cancelled and he becomes an unlawful non-citizen in Australia. The Tribunal also accepts that the applicant is a vulnerable person suffering from moderate to severe anxiety and that if the visa remains revoked, this may deteriorate his mental health symptoms, especially if the applicant is detained or even deported. However, the Tribunal assesses this risk to be remote and insubstantial, based on the abovementioned discussion that the applicant has migration options to mitigate these legal consequences arising from being an unlawful non-citizen in Australia.
Conclusion
The applicant has conceded to the Tribunal that he provided critical incorrect information about his actual identity as part of his application for refugee status and to have an offshore subclass 200 humanitarian visa granted. He admitted to providing a bogus document, namely a fraudulently obtained passport, to convince the decision maker that he had not travelled from Myanmar to Malaysia by air in an unlawful manner. While the Tribunal acknowledges and appreciates these admissions, the applicant did not concede these matters when he responded to the Department’s NOICC and provided a statutory declaration that misleadingly claimed that the identity in the passport found on the applicant’s arrival in 2014 was not his. In providing incorrect information and bogus documents and in continuing to deny this in a statutory declaration to the Department, the Tribunal finds that the applicant was knowingly responsible for this deceit and was non-compliant with the laws regarding intentionally making false statements. These very serious factors remain the most significant in its considerations of whether this visa should remain cancelled.
Nevertheless, the Tribunal has considered that the incorrect information and the bogus document were not wholly responsible for the grant of the visa and that there was significant weight on the visa being granted based on the country information about the real chances of serious harm arising based on the applicant’s accepted religion and ethnicity. Had the applicant volunteered his actual identity and the accompanying passport [Passport Number 1], the Tribunal assesses that there is a strong likelihood that the Subclass 200 visa would have been granted regardless of the manner in which he departed Malaysia. The applicant provided persuasive reasons: he provided incorrect information based on a lack of legal advice and he relied on poorly informed views from fellow Chin asylum seekers in Malaysia at the time of application. The Tribunal places notable weight in the applicant’s favour based on these factors, when considered cumulatively.
The Tribunal also has considered that since he has arrived in Australia the applicant has not breached any laws. He has provided information that he is a capable worker, a taxpayer and a valued contributor to his community in Australia and provider to his family back in his country of nationality.
In this case where the applicant has mental health conditions and compelling humanitarian claims, there is also a risk the applicant will be detained or deported or of refoulement in having this visa cancelled. However the Tribunal is satisfied that the risk is substantially mitigated by operation of s.48.
The provision of incorrect information and a bogus document that led to a grant of this visa is a grave issue as the information is relevant to the application of Australia’s law with respect to permission to enter and reside in the Australian community. Providing non-genuine information and documents affects the ability of decision makers to make proper decisions with respect to the provision of a visa and undermines the integrity of Australia’s migration and humanitarian programmes. Departure from those laws must be taken seriously in any consideration as to whether a visa holder should be entitled to continue to hold that visa, and deliberate breaches of the law should be given significant scrutiny in determining whether the visa should remain valid.
The Tribunal finds that the applicant has provided incorrect information in breach of s.101(b) of the Act. The Tribunal also finds that the applicant has not provided correct information, as required in in s.101(b) of the Migration Act, and thus is in breach of this provision of the Act.
The Tribunal is conscious that the cancellation of a visa, in particular the nature of the visa under consideration in this matter, is a very serious matter and accordingly finds that the weight of those unfavourable factors, cumulatively considered, in cancelling the visa outweighs those factors, cumulatively considered, in favour of the visa not remaining cancelled.
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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 200 (Refugee) visa.
Brendan Darcy
Member

ATTACHMENT ONE – Migration Act 1958 (extracts)
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.
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.
108Decision about non-compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)    having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2018] AATA 1962

23 April 2018

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