1714840 (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Subclass 200 (Refugee) visa. The applicant had lodged his visa application in May 2013, providing information about his name, country of citizenship, date of birth, marriage, departure from Myanmar, and employment history. He also directed the decision-maker to a UNHCR Resettlement Registration Form which stated he had no aliases. The visa was granted in May 2014. Upon arrival in Australia in July 2017, an Australian Border Force officer discovered a Burmese passport in the applicant's possession, issued in 2002, bearing a different name and date of birth but a photograph resembling the applicant. Subsequent departmental investigations indicated the passport was genuine and had been renewed by Burmese officials. Information also emerged suggesting the applicant had departed Myanmar in October 2003 and arrived in Malaysia on the same day, contrary to his visa application. The Department issued a Notice of Intention to Consider Cancellation (NOICC) on the basis that the applicant may not have complied with section 101(b) and/or section 104 of the Migration Act 1958 (Cth), which require visa applications to be completed without incorrect answers. The applicant responded to the NOICC, denying non-compliance and asserting he had only ever been known by the name provided in his application.

The primary legal issue before the Tribunal was whether the applicant's Subclass 200 visa should remain cancelled, given the discovery of the passport and discrepancies in his travel history and identity information. This involved determining whether the visa was granted wholly or partly on incorrect information or a bogus document, and assessing the circumstances in which any non-compliance occurred. The Tribunal also considered the risk of refoulement and the applicant's mental health if the visa remained cancelled, as well as the applicant's contributions to Australian society since his arrival.

The Tribunal found that the applicant had knowingly provided incorrect information about his identity and a bogus document as part of his visa application. While the applicant initially denied this in his response to the NOICC, he later conceded to the Tribunal that he had provided critical incorrect information about his actual identity and admitted to providing a fraudulently obtained passport to conceal his lawful travel from Myanmar to Malaysia. The Tribunal noted that the visa was granted substantially, but not wholly, on this incorrect information and bogus document, as significant weight was also given to country information regarding the real chances of serious harm arising from the applicant's accepted religion and ethnicity. The Tribunal acknowledged the applicant's explanations for providing incorrect information, including a lack of legal advice and reliance on poorly informed views from fellow asylum seekers, and placed weight on these factors. Despite the applicant's admissions and his subsequent contributions to Australian society, the Tribunal concluded that the serious factors of providing incorrect information and a bogus document, coupled with the initial denial of these matters, weighed heavily against the applicant. However, the Tribunal also considered that had the applicant volunteered his actual identity and the accompanying passport, the visa would likely have been granted regardless of his departure method. The Tribunal accepted there was a risk of refoulement and potential deterioration of the applicant's mental health if the visa remained cancelled, but assessed this risk as remote and insubstantial, noting the applicant had migration options to mitigate these consequences.

The Tribunal affirmed the cancellation of the applicant's Subclass 200 visa.