1717145 (Migration)

1717145 (Migration) [2019] AATA 2785 (20 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1717145
MEMBER:Meena Sripathy
DATE:20 June 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Statement made on 20 June 2019 at 2:34pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous visa application – names applicant was known by – family composition – place of residence – humanitarian claims – alleged inconsistency based on Departmental interview – conducted in unsatisfactory manner – no audio recording – vulnerabilities of applicant – unsafe to rely upon information – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 107A, 109
Migration Regulations 1994 (Cth), r 2.43
CASES
McDonald v D-G of Social Security (1984) 1 FCR 354
MIAC v Brar (2012) 201 FCR 240
Mian v MILGEA (1992) 28 ALD 165
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Saleem v Migration Review Tribunal [2004] FCA 234
Singh v MIEA, unreported, FCA
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
SZEEM v Minister for Immigration [2005] FMCA 27
Zhao v MIMA [2000] FCA 1235
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235
Zhong v MIAC (2008) 171 FCR 444
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 (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that applicant did not comply with s101 of the Act and determined, having considered the prescribed circumstances under r.2.43, that the visa be 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 31 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. 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 her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Notice of intention to consider cancellation (NOICC) letter
A notice of intention to consider cancellation (NOICC) was sent to the applicant on 23 June 2017. The notice said the delegate considered that the applicant has not complied with s101(b) of the Act which required that no incorrect answers are given or provided in her visa application. The notice advised that the non-compliance relates to a visa that she previously held, namely a [refugee] visa granted on 31 March 2011. Section 107A of the Act allows for cancellation of a current visa if there has been non-compliance with a previous visa.
The NOICC provided particulars of information given by the applicant in her [refugee] visa application that were alleged to be incorrect. Specifically, particulars were provided of information provided in [Form 1] and [Form 2], completed by [Ms A] and the Burmese Community Welfare Group (BCWG) and [Form 3] for Group Submission to Australia and a statement written and signed by the applicant detailing her experiences in Myanmar. The information included personal details relating to herself, including her name, date of birth, place of birth, citizenship; information about her family members overseas and in Australia; her history of addresses and claims regarding the country she fears returning to (Myanmar) and manner of departure.
[Form 3] included the following information under the hearing Refugee claim:
·The applicant is a Myanmar national of mixed Chin and Wa ethnicity from [Village 1], [Town 1], [Division 1]. Her mother is deceased and father remains in Myanmar. She is an only child and has a cousin in Australia. She claimed she was subjected to forced labour from 1998, to or three times a year. She was forced to porter, carrying bags for Myanmar soldiers for periods up to one to two weeks at a time. She described an incident [in] January 2007 when she was returning home after selling vegetables in a neighbouring village. She was accosted by a group of five Myanmar soldiers who forced her to carry their bags. She managed to escape from them and fled to her uncle’s farm. Her uncle and father subsequently arranged for her to flee Myanmar. [In] January 2007 she travelled from there to [District 1], [District 2], [City 1], [Town 2] and [Country 1] before arriving in [Country 2 in] February 2007. She was informed by her father that the Myanmar authorities confiscated the family’s [farm] after she fled the country.
The applicant’s own statement of claims included the following information:
·She lived with her father selling vegetables daily near their village. [In] January 2007, while coming back from selling vegetables she was met by five soldiers accompanied by five porters. She was forced to carry some of their things with them. The soldiers used abusive language towards her and kicked and scolded her to carry more even though she was so tired she could not walk. After walking for three hours she fell far behind and when there was a bit of distance between them, she put down the materials and ran away. She fled to her uncle’s farm because she was afraid to go home. The soldiers came to her house looking for her the next day and confiscated her ID card. [In] December 2007 (sic) they tried to escape from the country because it became life threatening and to save their dignity. They reached [Country 2 in] February 2007.
The NOICC indicated that, on the basis of this and all the information contained in her application, she was found to be a person subject to persecution in her country and granted a Refugee visa on 31 March 2011.
The NOICC indicated that on 7 November 2016 the applicant departed Australia and travelled to [Country 1]. She lodged an application for a Class BB Subclass 155 Resident Return visa in [City 2] on 10 November 2016 and was interviewed by an officer in relation to that application at the Australian Embassy on 21 November 2016. The following information is recorded as provided at that interview:
·She confirmed that the email address provided on the Resident Return visa application ([email address]) was used by her to register a [social media] account in the name of [Alias 1] in January 2011.
·She stated that she had used this name for some 7 or 8 years and she used this name in [Country 2]. She also said it was used by her parents as it was common with her race.
·When asked about her race and ethnicity she said her father is Chin and her mother is Wa and that is why she has two names.
·She advised that she resided in her birth village of [Village 1] Myanmar until approximately [age] years of age when she moved to a small village under Tanyan District called [Village 2] Northern Shan State. She said she lived in Tanyan District with her parents until her mother passed away when she was [approximate age] years old, and her brother, [Brother B], now aged [age] years, also lived with them. She also mentioned having some cousins and an older sister called [Sister C] who was born to her biological mother and a different father, and was now aged approximately [age] years old.
·She said she returned to [Village 1], described as her father’s home town, with her father one time in 2007 or 2008 for around one week. She said while in [Village 1] she was forced to porter for a Burmese soldier who wanted to kill her and so her father told her to run away. She ran away, slept overnight at her father’s farm and then walked, took boats and eventually came to [Country 2]. She said that she travelled by truck, car and boat to leave Myanmar but could not remember the route.
·She said she is currently living in Australia with her uncle (mother’s brother) [Mr D] and his wife [Ms A]. She told the officer that [Ms A] is not her cousin but actually her aunty. Her uncle had been living in Australia for 14 to 15 years prior to her arrival in Australia.
The NOICC advised that on the basis of information provided by the applicant at the interview on 21 November 2016 it appears she provided incorrect information in her Refugee visa application lodged on 18 January 2010 as follows:
·The information she provided at Question 3 on [Form 2] that she is not known by any other names than [Name 1] is incorrect as she has also been known as [Alias 1] for the past 7 to 8 years.
·She stated in her application form and [Form 3] that her mother passed away when she was [age] years old and she had no siblings. This is incorrect as she advised at the interview her mother passed away when she was [older] and that she had a brother and a half sister. This indicates she has provided contradictory and inconsistent information about her family composition and the information in her Refugee application is incorrect.
·She stated in her Refugee application at question 23 of [Form 1] that she lived her entire life in [Village 1] and that she was forced to labour and porter there from 1998 to 2007 when she left. This is incorrect because at the interview on 21 November 2016 she said her family left [Village 1] when she was [age] years old and moved to Tanyan District, only returning to [Village 1] once in 2007 or 2008 and she displayed limited knowledge of [Village 1].
·The account of the incident described by the applicant in January 2007 and account of her departure from Myanmar following is incorrect on the basis of the information provided in the interview in November 2016, where she said she lived in Tanyan District and had only returned to [Village 1] once in 2007 or 2008. The account of the incident with the soldier provided at the 2016 interview failed to mention many of the details provided in the earlier account and failed to mention her uncle or his role in her departure. The very different accounts of how she left Myanmar in the 2016 interview and earlier application also casts doubts on the genuineness of her refugee claims.
·She stated in her application for a Refugee visa at question 19 of [Form 1] that she had a cousin in Australia called [Ms A] and no other relatives. However she told the officer at the interview in November 2016 that she has an uncle in Australia called [Mr D] and that [Ms A] is his wife and not her cousin.
Applicant’s Response to the NOICC
On 7 July 2017 the applicant provided a response to the NOICC. The following information is provided in her response:
·To the best of her knowledge, she maintains that the information provided during her refugee visa application is correct.
·She was granted a refugee visa on 31 March 2011. She spent about 5 years in a refugee camp in [Country 2] and arrived in Australia [in] August 2011.
·She is currently about [number] months pregnant. She is very afraid for her unborn child if she is deported from Australia as she is certain she would be arrested and imprisoned if returned to Myanmar.
·She currently lives with her aunty and uncle in [Suburb 1] and works full time as [Occupation 1] at a [workplace]. Evidence of her employment is provided.
·She was born in [Village 1], Chin State, Myanmar. There were few facilities in the area including primary or high schools. As a result, she did not attend primary school on a regular basis, and never attended high school. Her father owned a farm and she helped him most days. As a result of her low education level she does not always understand questions or concepts.
·Her first language was Chin, which was spoken at home with family and friends. She cannot read or write Chin.
·Her second language is Burmese. At the time of her refugee application her Burmese was not very good as she mostly spoke Chin. She now speaks Burmese better because most people she meets speak Burmese, and only learned to read and write Burmese a little once she arrived in Australia.
·She had to use interpreters throughout the process for her refugee visa. She does not know exactly what was written there. She also had to use interpreters for her interview in 2016 and recalls struggling with the interpreters during the interview.
·She is a refugee from Myanmar and has suffered trauma there. She tries not to remember past life experiences because she cries a lot and gets depressed. She escaped brutality and cruelty and was in a refugee camp for 5 years in [Country 2].
·She provides the following responses to information contained in the 23 June 2017 letter:
·The name [Alias 1] is a Wa family pet name. She was given this name by her mother but her birth name was given by her father. She has used this name on the internet. A friend set her up with an email account in [Country 2]. When she set up a [social media] page she used [Alias 1] because she was afraid that officials from Myanmar would find her if she used her birth name.
·She does not know exactly when her mother passed away but she was young, around [age] years. She passed away from malaria. As far as she knows there is no death certificate. She does not recall what she said at the interview in 2016, but she was afraid and overwhelmed at that time and apologises if the information was incorrect.
·When she arrived in Australia she learned she had a half sister, related on her mother’s side of the family. She has never met this person. When she arrived to Australia she was told by her father that she had a half brother. Her father never told her when she was in Myanmar. He worked outside the village when she was young and she was looked after by her uncle and other villagers. She doesn’t know exactly when her father remarried. When she was in Australia she was told by her father that he moved to [Village 2] in Tangyan to live with his wife.
·When she lived in Myanmar she always lived in her rural birth village, [Village 1] until she left Myanmar in 2007. She never moved from [Village 1] at age [age]. After she left, her father remarried and he now lives in [Village 2] in Tangyan district with his new wife and her step brother. She may have been confused about the question. She has never been to [Village 2].
·She escaped Myanmar from [Village 1] without her father or uncle. Her memory of her escape causes her a lot of trauma. She was with other refugees in a group. At the interview in 2016, she was very stressed and had trouble with the interpreter. She found it hard to talk about past traumatic experiences.
·At the time of her refugee application, she did not know she had family in Australia, aside from her aunty. She is technically her step aunty, and is also her cousin. She is related to her through her great great great grandmother on her mother’s side. She married the applicant’s step uncle and so now she is her step aunty. Her step uncle is from her mother’s side, she did not meet him until she came to Australia. Her aunty told her about him when she was in [Country 2].
Other information on Department File [number]
Included in the Department file, relevant to the decision under review, are the following documents and information:
·Record of Integrity Interview held with the applicant on 21 November 2016 at the Australian Embassy in Bangkok in relation to her application for a Resident Return Visa.
·Three separate Identity Assessment Reports one undated and two dated 16 November and 30 November 2016. These reports include details of investigations conducted relating to the applicant’s residential, family and ethnicity information provided at various times to the Department, investigations of financial records and analysis of her [social media] account and social media activity.
On 2 August 2017 a delegate of the Minister made a decision to cancel the visa, having considered the applicant’s response to the NOICC and the matters relevant to exercising the discretion whether or not to cancel the visa.
Evidence provided to the Tribunal
On 30 May 2019 the Tribunal received a pre hearing submission from the applicant’s representative. The submission sets out details of the applicant’s background, including her mixed ethnicity, family, religion and education background. It reiterates the applicant’s claims of risk of harm in Myanmar and immigration procedural history, including the interview she was subjected to in November 2016 in Bangkok in the context of applying for a Resident Return Visa while overseas. The submission argues that it is apparent from the written record of the interview that it was conducted with an improper purpose and denied the applicant procedural fairness. It is submitted that the applicant was in a vulnerable situation, given her limited education, language difficulties, history of trauma, and being in a foreign third country with no support. The written record of interview discloses her confusion and distress. A request was made of the Department to provide an audio recording of the interview to ascertain the full context, however the response from the Department was that no audio recording was made. It is submitted in these circumstances the record of interview is unreliable as it is not possible to verify the line of questioning that led to certain responses. In summary, the submission argues that the evidence on which the delegate has relied to conclude there was non compliance is wholly unreliable and must be treated with caution.
It is submitted that the applicant relies on the information provided in [Form 3], [Form 1] and [Form 2] and there has been no non-compliance and the Tribunal should set aside the cancellation. In the event that the Tribunal finds there has been non-compliance pursuant to s108 of the Act, the representative seeks leave to make further submissions with respect to matters relating to the exercise of the discretion not to cancel the visa. A birth certificate evidencing the birth of the applicant’s [daughter] was also submitted.
Tribunal hearing
The applicant appeared at a hearing before the Tribunal on 31 May 2019 to give evidence and present arguments arising in the review. The Tribunal also received oral evidence from [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages. She was represented and her representative was present at the hearing.
A summary of evidence she gave at the hearing follows. She lives in share accommodation with her daughter. She was previously living with her aunt and uncle ([Ms A] and [Mr D]) for 7 years. She only moved out after both she and her aunt gave birth to babies and there was insufficient space. She intends to move back with them in future when they get a bigger place. She works full time as [Occupation 1] at [a workplace]. The wife of her co-worker, who lives at the same address, takes care of her baby while she works.
The baby’s father is in Myanmar. They met online in 2015. She travelled to [Country 1] in November 2016 to meet him in person with a view to marrying him. While there she became pregnant, returning to Australia in February 2017. He returned to Myanmar. The relationship is ongoing. They speak each night and he also has contact by phone with his daughter. She lodged an application for a Partner visa for him after she returned to Australia but it was returned to her after a week. After that she was afraid and did not lodge another application. This was before the cancellation letter was issued to her.

The Tribunal asked the applicant about other names she has used. She said she is known by the name [Alias 1] by family and friends only. Her mother gave her this name. She uses it for her email and [social media], which she set up from the time she was in [Country 2]. She uses the name [Name 1] for all other purposes and this is the name she used at school in Myanmar. The other name she uses is [Alias 2]. It is used at her church. It was given to her by people at church because it means nice and beautiful. This name has only been used since she came to Australia. The Tribunal asked about the reference to the name ‘[Alias 3]’ by the UNHCR. She said she has no idea about this and never heard of it. She has never used that name in any place.
The Tribunal asked about her family composition. She said she has only her daughter, [Ms A] and [Mr D] who are related to her here. [Ms A] is her uncle’s wife. She is not otherwise related to her. [Mr D] is related to her mother’s side of the family but she is not sure exactly what the relationship is. He told her he is related to her mother, but not exactly how. Her mother died when she was young so she does not know all the relatives. The applicant said she only learned about [Mr D] after she came to Australia. She met [Ms A] when she was in [Country 2]. She met her in the context that she was living with [Ms A]’s sister, [Ms E] (she is also known as [Alias 4]). When [Ms A] came to [Country 2] she told the applicant she is married to her uncle who is in Australia. She decided to sponsor her because she saw the difficult circumstances she was in and wanted to help her.
The Tribunal asked about the applicant’s parents and siblings. She named her parents and said she has no siblings. She does not know how her parents came to meet each other. They lived together in [Village 1] and this is the only place the applicant lived in Myanmar before coming to [Country 2]. When asked to describe [Village 1] she said it was mostly populated by minority people, there were Chin, Chinese and Lisu and Burmese people there. When asked what languages she spoke at home, she said mostly Burmese. They also spoke Wa but then her mother passed away. Her father and uncle brought her up after that. The Tribunal asked whether she had a household register during this time. She said she did not and no one had them in that period. When asked to described her schooling, she said it was not a government school, but more informal. She studied only to about year 4 level. After that she sold vegetables. Her father was a farmer and grew vegetables which she sold. He also left the village from time to time to find other work. The Tribunal asked about her mother’s family. She said they are Wa people but she does not know anything about that side of the family. They were from Lashio area.
The Tribunal put to the applicant her answers at the Department interview in Bangkok were very different to what she has told the Tribunal. She said at that interview she lived at Tanyan from the age of [age] years. The applicant responded that she does not know what she said at that interview. She was very scared and confused. When asked why she referred to Tanyan, she said her husband lives there so maybe it was because if that. The Tribunal put to her that she also said she lives with her half brother [Brother B], who was [age] years old. She said this is the son of her father’s other wife. She only learned about him after she came to Australia. Her aunty returned to Myanmar in 2015 she coincidently met her father in the market and put him in touch with the applicant and that is when she found out about his remarriage and son.
The Tribunal asked the applicant how and why her father went to Tanyan from [Village 1] given that these places are very far apart. She said he often travelled looking for work and he may have ended up in Tanyan in that context and also his wife is there. She was in contact with her father every 3 months or so. He passed away in March 2019. The applicant’s partner informed her and he was the one who made the arrangements at the time of his death. She is not in contact with her half brother. The Tribunal asked the applicant about the half sister she mentioned at the interview. She said her father told her about her after 2015 also. He just told her he found some relatives from her mother’s side at the market but he never mentioned the exact biological relationship. She said she does not know what she said at the Department interview but has come to know now that much of it was wrong information.
The Tribunal asked the applicant if she had any evidence to support what she is saying about her father’s residence, such as household registers or death certificate. She said she does not have any such documents.
The Tribunal asked the applicant why she left Myanmar. She said she used to sell things and one day on her way to market she was met by military soldiers and they forced her to do hard labour. It was too difficult and she managed to run away. She ran to her uncle’s farm and he helped her to flee the country. She remembers this incident occurred [in] January 2007. When asked why and how she remembers the exact date given her recollection of other things is quite poor, she said she remembers because she fled for her life.
The Tribunal asked about her journey to [Country 2] and where she crossed into [Country 1]. She said she remembers going through [City 1] and [Town 2]. When put to her that at the Department interview she mentioned [Town 3] she said she doesn’t know why she said that because it was [Town 2] that she went through.
The Tribunal asked the applicant about the photos from [social media] shown to her at the interview. She confirmed the persons she identified then.
The Tribunal took evidence from [Ms A]. She told the Tribunal she came to Australia in 2005 on a Partner visa. She married her husband in Myanmar. They are both from the Wa community. They were known to each other when they were young through church and were introduced to each other later by their parents for marriage. She lived in Lashio state and he was from Tanyan which is very close by. The witness confirmed her family composition, including her sister and brother in the US.
The witness confirmed that the review applicant is not her blood relative, but they are from the same ethnic group so there could be some relationship there. She met her when she was in [Country 2]. She said that when she was in [Country 2], her husband found out that his relative (niece) may be there and then they located her. The Tribunal asked the witness if her sister was there at the time. She said she was and then said the applicant was living with her. She came to sponsor her because she could see that she was in a difficult situation. The Tribunal asked why her uncle was not the sponsor if he was the relative. She said they had no evidence to establish the relationship so she was told to just put down cousin. She just wanted to help the applicant because she was in a difficult situation. When asked what she knew of the applicant’s circumstances the witness said she did not know anything at that time, she learned later that she lived in Chin state. The witness confirmed she is not the applicant’s mother’s sister’s daughter as stated in the UNHCR records. The witness confirmed that she met the applicant’s father after the applicant came to Australia, and put them back in contact with each other. She said it was a coincidental meeting. She does not know anything about why or when or how he came to be in Tanyan.
The Tribunal discussed with the applicant the NOICC sent by the department and the allegation of non-compliance it made. It put to her that it is detailed and sets out the basis for the allegation of non-compliance, which is substantially the contradictory information provided by her at the Department interview in November 2016. It put to her that while she has provided an explanation about this in her response to the NOICC, pre hearing submissions and in her evidence today, the Tribunal has a concern that all the connections she has since coming to Australia, being her aunt and uncle and now father’s place of residence are connected to Tanyan and not [Village 1] and that this may suggest her responses at the Department interview about her family composition and place of residence was correct. It also noted that the evidence about her family language indicates a stronger connection to the Wa side of her family, which is also more connected to Shan state than [Village 1]. In response the applicant said that there were Wa speaking people in [Village 1].
The representative made brief oral submissions. He corrected an error made by him in the response to the NOICC where a reference to her family language being Chin should properly have been Wa. He said he can file an affidavit in necessary to confirm this was his error not the applicant’s. He said her evidence today, and instructions to them, has been that the parents spoke Wa between them and that there were other Wa speaking people in [Village 1] area. He said that she mentioned her father moving around to find work and looking for gems and this may explain why and how he came to live in Tanyan eventually. Regarding the family relationship, he submitted that concepts of family are very different in the applicant’s community and therefore the description of [Ms A] as her cousin should not be considered literally as it would be in western concepts. He believes the Department was prepared to accept that broader family concepts are common in other cultures.
The Tribunal indicated to the applicant that it would consider the evidence and material it has before it. If not satisfied there has been non-compliance as described in the NOICC, then that is the end of the matter and the cancellation must be set aside. If it finds there has been non-compliance, it will consider the discretionary factors and in that case it will invite her to submit further material addressing these.
The applicant confirmed that her daughter is [age] and healthy. The applicant works full time and has been working consistently in Australia for the past 5 years. The father of her daughter lives in Tanyan, Myanmar with his mother. He moved from another area some 2 years ago because of security issues in the area. She said she would be very afraid if she had to return to Myanmar because she is afraid of being arrested by the authorities for fleeing the country. Her daughter would face hardship and a very difficult life there.
CONSIDERATION
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.
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.
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.
Did the notice comply with the requirements in s.107?
For the following reasons, the Tribunal finds that the notice of intention to consider cancellation (NOICC) of 23 June 2017 is valid. The Tribunal accepts that the delegate reached the necessary state of mind to issue the NOICC because the delegate expressly stated in the NOICC that she has formed the view that there has been non-compliance and provided a basis for her findings (regardless of the strength or logic of this basis). The Tribunal accepts that the delegate reached the required state of mind.
The next question relates to the sufficiency of the notice. That is, whether the notice included particulars of the possible non-compliance. The NOICC particularised the non-compliance as set out above in paragraphs 8-13.
Having regard to relevant case law about the role and sufficiency of particulars, specifically that they must be sufficient to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open[1] and that It would not be enough to generically claim that the visa holder has breached a section of the Act without giving particulars of the facts and circumstances which are said to give rise to the possible breach of the particular provision,[2] the Tribunal is satisfied in the present case that the allegation of non-compliance has been sufficiently particularised. The manner in which it has been particularised frames the inquiry before the Tribunal, as the relevant task for the Tribunal is to decide whether there has been non-compliance in the way described in the notice.[3]
[1] Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25]. In that case the Court was considering the requirements of s.119 notifications for the purposes of Subdivision D cancellation but the principle would be equally applicable to s.107 notifications. The decision was cited with approval by the Federal Court in MIAC v Brar (2012) 201 FCR 240: see [57]-[58], a decision that was concerned with a s.107 notification.
[2] Zhong v MIAC (2008) 171 FCR 444 at [80].
[3] SZEEM v Minister for Immigration [2005] FMCA 27, relying on Allsop J in Saleem v Migration Review Tribunal [2004] FCA 234
In this case, the Tribunal finds that the NOICC particularises the possible non-compliance as providing incorrect information about names she is known by, information provided about her past family and life circumstances including family composition, where she lived and her humanitarian claims. The information is alleged to be incorrect on the basis of contradictory or conflicting information the applicant is alleged to have provided in an interview on 21 November 2016 in the context of her claim for a Subclass 155 visa.
The Tribunal considers that given that the notice has identified the specific claims that are alleged to be incorrect information and indicated reasons for why it is alleged to be incorrect (ie. inconsistent or contradictory information provided by her in a subsequent interview) accordingly, the Tribunal is satisfied that the NOICC complies with s.107.
Was there non-compliance as described in the s.107 notice?
The next 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 Tribunal notes that the delegate’s conclusion that there was non-compliance by the applicant in her application for her [refugee] visa was substantially based on the inconsistent information she provided at the November 2016 interview.
However, on the evidence now before it, the Tribunal finds that the weight and reliance it can give to the information contained in this interview record is substantially diminished by the circumstances in which it was conducted. The applicant contests the information she is alleged to have given at that interview. The Tribunal has considered, and is inclined to agree with, the applicant’s representative’s concerns about reliance on information contained in the 21 November 2016 interview. It agrees that the interview appears to have been conducted under a false pretext that it related to her application and eligibility for a Subclass 155 visa. There is no evidence that she was informed about the actual purpose of the interview, which appears to have been to test the integrity of information and claims made in her earlier refugee application. The applicant was affected by a number of vulnerabilities at the time of the interview. She was in a foreign third country, had no access to legal advice or an appropriate support person, had a background of limited education, was not proficient in English and was therefore reliant on an interpreter, and had a possible past history of trauma. The Department has confirmed there is no audio recording of the interview. It is also relevant that the applicant has subsequently denied and/or retracted information alleged to have been said at the interview and the way the interview record was written up raises legitimate questions about the line of questioning used to elicit responses (for example there are numerous references to the applicant ‘being prompted’). Therefore, while the Tribunal has considered the evidence of the interview conducted by the officer on 21 November 2016, it finds that it is an unreliable source of evidence and not a sufficient basis to form any firm conclusions of a factual nature.
With regard to the onus of establishing non-compliance, it is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[4] However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal).[5] Although the visa holder must be invited to show that the ground 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. at [25]:
‘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.’ [6]
[4] 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.
[5] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].
[6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000). While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.
In a case such as the present, in deciding whether the ground for cancellation is made out the Tribunal also considers it is appropriate to bear in mind the nature of the allegations and the gravity of the consequences.[7] In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in her refugee visa application are, undeniably, serious.
[7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 and Sun v Minister for Immigration and Border Protection [2016] FCAFC 52. Eg. The Court in Sullivan observed at [120] ‘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.’

The Tribunal has considered all of the evidence available before it in light of these authorities, and makes the following findings relating to whether the applicant has provided incorrect information in the manner described in the NOICC.
Incorrect information about names applicant was known by
The NOICC alleged that the response to Question 3 of [Form 2], where her proposer responded “No” to whether the applicant has been known by any other name, is incorrect on the basis that she has also been known by the name [Alias 1], used by her in her [social media] account and email address.
The applicant has acknowledged that she has used the name “[Alias 1]” in her [social media] account and email address. She explained in her response to the NOICC and evidence to the Tribunal, that this is a family, ‘pet’ name, used by family and friends only. She stated that she never used this name for school or any other official purposes. There is no other evidence before the Tribunal to indicate use of this name other than in her [social media] account and email address. The Tribunal notes Q3 of [Form 2] suggests in brackets that what is contemplated by this question is ‘name at birth, alias, previous married name.’ The applicant’s explanation of the nature and use of the name [Alias 1] does not appear to fall into any of these categories. In these circumstances, the Tribunal accepts that the omission of [Alias 1] does not constitute an incorrect answer to this question as there is no evidence to suggest the proposer had knowledge of it at the time and, in any event, it is arguable whether as a family, pet name it was within the contemplation of the question.
Incorrect information about applicant’s family composition
The NOICC alleges that the applicant provided incorrect information at Q13 of [Form 1] in omitting reference to any siblings. It is also alleged that page 1 of [Form 3] referred to her as an only child and that her mother passed away when she was [age] years old. The NOICC states that, contrary to this, in her interview on 21 November 2016 the applicant referred to having a half-brother and a half-sister, and her mother passing away when she was [several] years [older].
In her response to the NOICC and evidence to the Tribunal the applicant has clarified that she learned about the existence of a half sister and half brother after she came to Australia. She also explained that she was young when her mother died and cannot remember exactly when she died and was traumatised as a young child at that time. In her response to the NOICC and before the Tribunal the applicant maintains that the information provided in in the application was correct as at the time it was given. She has provided an explanation for the information that was allegedly given at the interview, consistently to the Department and Tribunal, which is reasonable and plausible. Earlier, the Tribunal identified a number of problems it had with reliance on the 21 November 2016 interview. Furthermore, the Tribunal observes that there is no other evidence before the Tribunal as to the existence of any siblings of the applicant. For all of these reasons, it finds that it cannot be satisfied that the information provided in the refugee visa application about the applicant’s family composition is incorrect as it was known at that time.
Incorrect information about where the applicant lived
The NOICC alleges that the applicant said in her application for the refugee visa that she lived all her life in [Village 1] until she departed Myanmar in 2007, and that she was forced to labour and porter for the military several times a year but in her interview in November 2016 she said she moved from [Village 1] to Tanyan district when she was about [age] years old and only returned once to [Village 1] in around 2007 or 2008. The NOICC alleged that this contradictory information and open source information indicating the substantial distance between [Village 1] and Tanya, casts doubts on the truthfulness of the information she gave in the refugee application and on this basis it is alleged to be incorrect.
This allegation relies substantially on the applicant’s information at the interview that she moved from [Village 1] to Tanyan district at the age of [age] years. The applicant denied that she said this in her response to the NOICC and again before the Tribunal. Unfortunately there is no audio recording to verify her responses and the context of the questions put to her. There is no other evidence before the Tribunal to support that she moved from [Village 1] and lived in Tanyan district. In light of the concerns identified with the interview record and the applicant’s consistent and emphatic denial of this information now, the Tribunal cannot be satisfied on the material before it that the applicant provided incorrect information in the refugee application.
Information about humanitarian claims
The NOICC alleged that the claims made in the application for the refugee visa, in her statement and as detailed in [Form 3] were incorrect on the basis of inconsistent information she gave at the November 2016 interview about where she lived and her account of escaping from the soldiers at the time she departed Myanmar.
Again, this allegation substantially relies on the applicant’s responses at the interview, which she has contested. For the same reasons mentioned previously, the Tribunal cannot rely with confidence on the evidence of her responses at the interview to base a conclusion on this allegation. It notes the applicant has maintained consistently in her response to the Department and Tribunal that the information she gave in her refugee application is correct. In the absence of other evidence contradicting this, and noting that there is country information consistent with the claims she made[8], there is no basis for the Tribunal to find that the information provided regarding her humanitarian claims is incorrect.
Incorrect information about journey from [Village 1] to [Country 2] via [Country 1]
[8] See for example, Guardian Unlimited, 2007, ‘Burmese army rape to terrorise villagers, says report’ 2 April, Attachment 3 ; ‘Oppression in Chin state force people to abandon homeland’, Khonumthung News, Burmanet.org, 21 February – Attachment 4
The NOICC alleged the information the applicant provided in her refugee application that she travelled from [Village 1] via the towns of Kale and Tamu to [City 1] and then to [Town 2], to [Country 1] and on to [Country 2] is incorrect because at the interview she was unable to recall the route she took to leave Myanmar but she believed she entered [Country 1] from [Town 3]. The applicant explained that she felt very stressed and affected by the trauma of the circumstances of her departure from Myanmar when asked about this at the interview and also had trouble with the interpretation. Before the Tribunal she stated that she remembers going through [City 1] and [Town 2], and does not know why she would have said [Town 3] at the interview but retracts that. In the absence of a recording of the interview, and the concerns mentioned previously, the Tribunal is not inclined to place great weight on the alleged response she gave at the interview and as the interview evidence appears to be the only basis for this allegation of non-compliance, the Tribunal is not satisfied this response in her refugee application was incorrect.
Information about applicant’s relationship with [Ms A] and description of her as a cousin and failure to mention uncle, [Mr D]
The NOICC alleges that the applicant’s answer at Q19 in [Form 1] that [Ms A] was her cousin sister is incorrect as she provided conflicting information at the interview in November 2016 that she is the wife of the applicant’s uncle [Mr D].
The applicant explained in the response to the NOICC that she did not know much about her uncle until she came to Australia. She stated further in her evidence before the Tribunal that she met [Ms A] in [Country 2] as she was the sister of the woman with whom she was living. She explained that she referred to her as a cousin-sister in a loose sense as is the practice in Myanmar. She now refers to her as aunty because she is married to the applicant’s uncle. She maintains that she did not know the precise relationship at the time of the refugee application and it was not incorrect at that time on the basis of the knowledge she had of their relationship.
The Tribunal has considered all of the evidence before it relating to this matter. The applicant has provided an explanation for the description of [Ms A] and failure to mention [Mr D] in her refugee application consistently before the Department and Tribunal. In the absence of any other evidence to contradict her claims, the Tribunal is prepared to accept the explanation as plausible and reasonable, and therefore, it is satisfied that the answers she gave in her application regarding [Ms A] were accurate as far she knew at that time and the omission of [Mr D] was not incorrect as she did not know of his existence or relationship to her at that time.
Conclusion on non-compliance
In reaching the above conclusions regarding the allegations of non compliance raised in the NOICC, the Tribunal has had regard to all of the information and evidence before it, including the applicant’s response to the NOICC, her submissions, arguments and oral evidence to the Tribunal. It has also considered information contained in the Department’s three Identity Assessment Reports and investigations conducted in November 2016 to explore the issue of her identity, background and migration history. It appears that the investigations undertaken in preparing the Identity Assessment Reports informed the lines of questioning undertaken by the officer who interviewed the applicant on 21 November 2016. The Tribunal finds it concerning that the applicant was not, in these circumstances, put on notice or even informed that this was the purpose of the interview at that time. While it acknowledges that there may have been cause for concern about aspects of the applicant’s information and claims as a result of information that had come to the attention of the Department, and this prompted the Department to make further enquiries, the manner in which this has been done in this case is less than satisfactory. Given the serious consequences that follow from a decision regarding non-compliance, it is imperative that conclusions are based on evidence which is substantive and reliable. In this case, the only evidence on which the allegations were made was an interview conducted with the applicant under circumstances that were far from ideal and that was not audio recorded. In circumstances where the applicant contests this evidence and the manner in which it was adduced, the Tribunal considers that it is unsafe to rely on.
As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Meena Sripathy
Member

ATTACHMENT – 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.

[2019] AATA 2785

20 June 2019

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