1729158 (Refugee)

[2018] AATA 4786

1729158 (Refugee) [2018] AATA 4786 (12 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729158

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Michael Hawkins

DATE:12 November 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

Statement made on 12 November 2018 at 8:24am

CATCHWORDS
REFUGEE – protection visa – Bangladesh – Federal Circuit Court remittal – imputed political opinion – assaulted and kidnapped by the Awami League – circumstances preventing the grant of a visa – bogus documentation – multiple identity documents provided with different dates of birth – confusion around applicant’s date of birth – inconsistent evidence – decision under review set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 45AA, 65, 91R, 91S, 91WA, 499
Migration Regulations 1994 (Cth), r 2.08F, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Bangladesh applied for the visa on 11 June 2014 and the delegate refused to grant the visa on 6 February 2015.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of r.2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.

4. The applicant sought a review of the delegate’s decision. The Tribunal, differently constituted (“the previous Tribunal”) affirmed the decision of the delegate on 18 March 2016. The applicant appealed that decision to the Federal Circuit Court of Australia.

5. The matter is before the Tribunal by reason of it being remitted from the Federal Circuit Court of Australia on 20 November 2017.

6. The applicant appeared before the Tribunal on 29 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

   RELEVANT LAW

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations 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, or the Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

18. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

21. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the substantive decision under review should be affirmed. To give effect to the affirmation of the delegate’s decision, the Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

    Background:

23. The applicant claims to be from [Village 1], Chauddagram Upazila, Comilla District, Chittagong Division in Bangladesh.

24. The applicant claims to be a Bengali and a Bangladeshi citizen.

25. The applicant arrived in Australia on [date] May 2013.

26. At his entry interview on 1 June 2013 he claimed to have been born [on Date 1]. However in his application for the protection visa he claimed to have been born [five years earlier, on Date 2]. Documents, including two birth certificates and two Senior School Certificates provided subsequently to the Department state his date of birth as [Date 1] and [Date 2].

    Claims:          

27. The applicant’s claims were set out in a statutory declaration dated 7 June 2014 that accompanied the application:

28. The applicant claims his father was deeply religious and a member of the Bangladesh National Party (“BNP”).

29. The applicant claims that in [year] he joined the BNP while studying. He claims he became involved in student groups.

30. The applicant claims that in 2001 he joined the Jamaat-E-Islami (“JI”). The applicant claims he began to volunteer regularly and to canvass support for the party. He claims he had a formal role and position as a member. He claims his role was to talk to people and encourage involvement. He claims he became known and appreciated within the community.

31. The applicant claims he was active during the 2008/2009 election period. He claims he organised rallies and canvassed support.

32. The applicant claims he owned and operated a [shop] at this time. He claims this was located 500 metres from his home. He claims his business began to be extorted.

33. The applicant claims that in August 2002, his father and uncle were assaulted by the Awami League (“AL”) in their family home. The applicant claims the AL came looking for the applicant. He claims he asked neighbours for details of the attackers’ identities as he wanted to lodge a police report. The applicant claims the AL found out about this.

34. The applicant claims that in December 2002 he increased his canvassing. He claims that on 14 December 2012 he was sleeping at his [shop] late at night when he woke to find the shop burning down. He claims he screamed and was assisted by his father and neighbours. He claims his father said he had seen AL supporters running way from the scene.

35. The applicant claims he fled, residing in various relatives’ houses through Chauddagram. He claims he was notified regularly that the AL were searching for him.

36. The applicant claims that in January 2013, he was assaulted and kidnapped in broad daylight by AL members at a market in Chittagong. He claims he was taken to the back of the market and assaulted with sticks for half an hour and he was called a terrorist. The applicant claims that he knew then he would continue to be harmed throughout Bangladesh.

37. The applicant claims he left Bangladesh on [date] February 2013.

38. The applicant claims he fears being harmed, abused, abducted and/or killed by the AL and its supporters due to him being a JI supporter.

    Evidence:

39. The Tribunal has before it a range of material, including, relevantly:

    • The applicant’s protection visa application form lodged on 11 June 2014 (“visa application”);
    • The applicant’s identity documents being a Bangladeshi birth certificate and Senior School Certificate in the applicant’s name and stating the applicant’s birth date as [Date 1];
    • Another birth certificate in the applicant’s name and Senior School Certificate and both stating the applicant’s birth date as [Date 2];
    • Record of Entry Interview of 1 June 2013;
    • Record of interview with the delegate dated 14 October 2014;
    • The protection visa decision record (‘delegate’s decision record’) dated 6 February 2015;
    • The Tribunal Decision Record (‘previous Tribunal’s decision’) of 18 March 2016;
    • The Federal Circuit Court of Australia Order (‘FCC Order’) of 20 November 2017;
    • The review application form;
    • Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Bangladesh, published on 2 February 2018.

    Country of reference / receiving country

40. The applicant claims to be a Bangladeshi national. Based on the copies of documents purported to have been issued to him by the Bangladeshi authorities and provided to the Department of Immigration and Border Security (The Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Bangladesh is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

41. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).

    Hearing:

42. The applicant attended the hearing on 29 October 2018. He was not represented. The Tribunal confirmed that the applicant was not represented; having noted that he had been represented in the past. The hearing was assisted by an interpreter in the Bengali and English languages.

43. The Tribunal discussed with the applicant why he was at the Tribunal and summarised the applicant’s various applications and reviews and their outcomes. It explained that this Tribunal would be taking a fresh look at his application for a protection visa.

44. The Tribunal discussed with the applicant his request that day for a postponement. The applicant acknowledged that he had requested a postponement. The Tribunal advised that it had decided against granting a further postponement as the reason it had been given by his friend was that the applicant had just been released from detention and had lost all of his documents. The Tribunal noted that the applicant had been released from detention on 24 May 2018 and had already been invited to a hearing on 8 June 2018 and the applicant had requested and been granted a postponement at that time. The Tribunal noted that some five months had since elapsed which was a very reasonable time in order for him to prepare for the hearing, seek representation if he needed it and seek copies of any documents that he had lost.

45. The Tribunal asked the applicant again why he needed a postponement. He replied that people in the community were concerned that he may lose his case. The Tribunal acknowledged that there was always that risk. He said his doctor was worried that he didn’t have a lawyer. The Tribunal reminded the applicant that he has had a lawyer in the past and had five months to find another one if he was unhappy with the one he had. The Tribunal asked the applicant what papers he had lost. He said he had lost his birth certificate. The Tribunal assured the applicant that it had copies of his birth certificate, in fact both birth certificates, and Senior School Certificates and National Identification cards on file and they were available to him to view and have copied. The applicant then said that he would be able to participate in the hearing. The Tribunal assured the applicant that if it sensed that the applicant was not following the hearing, by reason of his responses to questions or if he and the interpreter were having difficulties understanding each other, it would take a break or even adjourn the hearing.

46. The Tribunal explained to the applicant that his claims for protection were set out in some detail in his protection visa application and accompanying statutory declaration and had been summarised in the decision of the delegate.

47. The Tribunal discussed with the applicant that it would consider his claims a little later in the proceedings if that was required. The Tribunal stated to the applicant that during the course of the application and interview process, he had presented two birth certificates and two Senior School Certificates, each with different information on it. The Tribunal noted that this was problematic.

48. The Tribunal explained to the applicant that it was required to consider whether s.91WA of the Act applied in his case. The Tribunal discussed with him that as he had produced two birth certificates and other documents relating to his identity containing different information the Tribunal may conclude that at least one of these birth certificates and some of the other documents were bogus documents as defined in the Act, and that if it was satisfied that he had provided these birth certificates and other documents to the Department as evidence of his identity, and if he could not provide a reasonable explanation for providing the bogus documents, the effect of s.91WA is that he cannot be granted a protection visa.

49. The applicant provided the Department with a Birth Certificate in the name of [Alias 1], indicating he was born on [Date 2] (folio 88 of the Department file).  He also provided a Nationality Certificate in this name (folio 87) and a Secondary School Certificate Examination listing the same name and date of birth (folio 86).

50. The applicant also provided the Department with a Birth Certificate in the name of [the applicant], indicating that he was born on [Date 1] (folio 85).  He also provided a Nationality Certificate in this name (folio 84) and a Secondary School Certificate Examination listing the same date of birth but in the name of [Alias 1] (folio 83).

1. At the hearing, the Tribunal put the information contained in the preceding paragraphs to the applicant. The Tribunal noted that it is aware that [Alias 1’s first name] is an abbreviation of [the applicant’s first name].  The Tribunal asked the applicant to provide his name and date of birth.

2. The applicant stated he was [full applicant name], born on [Date 2].

3. The Tribunal asked the applicant why he submitted a birth certificate with a date of birth of [Date 1] if his date of birth was [Date 2].  The applicant stated that he started school in [the year of Date 1] but was born [five years earlier, on Date 2].

4. The Tribunal asked the applicant again why he had submitted a Birth Certificate with a date of birth of [Date 1] if he now states his date of birth was [Date 2]. He responded by stating that he had asked his father to collect a Birth Certificate from the Birth Registry office and to email it to him at the Department of Immigration. The Tribunal confirmed that this was the [Date 1] version. He confirmed that was correct. He claimed he did not know what was on the Birth Certificate that was submitted by his father. He also added that his Birth Certificate was obtained on the basis of the date of birth on his Senior School Certificate. The applicant said he had sent the [Date 2] Birth Certificate by post to the Department while he was in [a Detention Centre] .

5. The applicant also stated that the officials in the Birth Registry Office know that the applicant is in Australia and have been hassling him in Australia for the last six years. The applicant also said that his father did not know what was on the Certificate he had provided as he does not speak English.

6. The Tribunal asked the applicant how it was that he was hassled by the officials in the Registry office. The applicant replied that the Certificates were exactly the same except for the date of birth.

7. The Tribunal stated to the applicant that the names are different on the two Birth Certificates, as are the respective dates of issue.

8. The applicant told the Tribunal that his father had told the Registry verbally his date of birth the first time. The applicant claims that the Registrar asked his father when he finished school and his father [stated the year of Date 3]. So the Registrar said his date of birth must have been [five years earlier, in the year of Date 1].

9. The applicant then said that the Department had told him that all of his Certificates were bogus and that he had to get correct documents. So the applicant stated that he contacted his old school to get the Headmaster to produce a new Senior Certificate with the correct information on it. He claims his father got that Certificate and took it to the Registry.

10. The Tribunal asked the applicant why he had told it that his father had got the Certificate based on the School Certificate when he had only just said that his father had told the Registry that he advised the date of birth verbally. The applicant replied that his father told the Registry his date of birth verbally. The Tribunal noted that it made no sense why he had gone to the Headmaster to produce a new Senior Certificate with the correct information on it.

11. The Tribunal asked the applicant why it was that he has two Senior School Certificates.

12. The applicant replied that when his father returned to get another Birth Certificate, the Registry told his father to go to a shop and have prepared a School Certificate that verified that date of birth. So the father went to a [shop] that had computers and the shop gave his father a bogus Senior School Certificate. The applicant went on to say that both of the Senior School Certificates are totally different except for his name. The Tribunal noted that that was not correct as the student roll number of [deleted] is recorded consistently on both versions of the Senior School Certificate.

13. The applicant replied that the first document is the bogus document. The Tribunal then queried the applicant that if that was the case, then how could the roll number be the same for the second Certificate. The Tribunal noted that the applicant had claimed that the first document was prepared by the [shop] and then claimed that the second document was authentic as it was prepared by the Headmaster of the school and was real and had the same roll number. The Tribunal asked the applicant how this could be. The applicant replied that he had some sort of document with his roll number on it which he had given to his father to create the first Certificate. The Tribunal reminded the applicant that he had previously said that the two versions of the Senior School Certificate were completely different but for his name.

14. The Tribunal discussed with the applicant, using the procedure in Section 424AA, information provided in his entry interview on 1 June 2013. In particular, the applicant had provided a date of birth of [Date 1], had stated his residence was in Bangladesh from [the same year as Date 1] and had also provided that his education was in Bangladesh from [Date 3] to [Date 4]. All of that information was consistent with a date of birth of [Date 1]. The Tribunal suggested to the applicant that this information was relevant because it suggested that the applicant had initially represented that his date of birth was [Date 1], which might lead the Tribunal to form the view that the applicant had deliberately provided a Birth Certificate to match this date. This could then form part of the basis for the Tribunal refusing the application for a Protection Visa under Section 91WA. The Tribunal invited the applicant to comment, and advised that he was entitled to request further time to comment if he wished.

15. The applicant replied that all the other details on the Birth Certificate were correct.

16. The Tribunal again asked the applicant why he had told the Department his date of birth was [Date 1] and then produced a Birth Certificate stating that date, if his real date of birth was actually a different date.

17. The applicant said that when he was in the interview, he said his date of birth was [Date 1]. He says the Department did not believe him. The applicant says that he told the Department his date of birth but he realises that he messed it up. He claims that he did not realise it would be such an important issue. The applicant stated that when he was eventually told that his Birth Certificate was important in Australia, it was too late. The applicant claims that he told the Department that the date of birth on his Identity Card of [Date 1] was not correct.

18. The Tribunal restated its concerns. The Tribunal noted that the applicant had told the Department his date of birth was [Date 1]. The applicant had told the Department that he was educated between [Date 3] and [Date 4]. The applicant had told the Department that he resided in Bangladesh from [the same year as Date 1] to 2013. The Tribunal noted that at the time of that interview, the applicant had not presented any documents corroborating those dates. The Tribunal then noted that some time later, the applicant had presented to the Department a Birth Certificate and a Senior School Certificate with that exact same information on it. The Tribunal asked the applicant how that could be.

19. The applicant replied that he was in private school from [Date 1] to [Date 3]. He said he was in secondary school from [Date 3] to [Date 5] and then was in college from [Date 5] to [Date 4], though he did not complete college.

20. The Tribunal again repeated the information that the applicant had given at the entry interview, being that he was born on [Date 1], he was educated from [Date 3] to [Date 4] and resided in Bangladesh from [Date 1] to 2013. The Tribunal noted that his Protection Visa Application stated a new date of birth of [Date 2]. The Tribunal asked was it that at the time of making his Protection Visa Application he had decided to be honest and to correct the record.

21. The applicant then stated that he had provided the first Birth Certificate to the Department knowing it was wrong.

22. The Tribunal reminded the applicant that he had previously said that his father had sent the Birth Certificate directly to the Department. The Tribunal also noted that he had a bogus Senior School Certificate as well. It asked the applicant how did he know that the Birth Certificate was wrong if his father had provided it directly. The applicant stated that he found out that the Birth Certificate was wrong when he received his Identification Card from the Department which stated a date of birth of[Date 1]. He claims he told the Department then that that date was wrong.

23. The Tribunal noted that the Identification Card was issued some time later. It asked the applicant again why it was that he had presented a Birth Certificate with a date of [Date 1]. This time, the applicant replied that he had told his father that he had told the Department that his date of birth was [Date 1] and that his father was to get a Certificate to match that date. When he received the Identification Card some time later and noticed the date of birth of [Date 1], he claims that is when he decided to correct it. He apologised to the Tribunal and said he had then wanted to give the correct information.

24. The Tribunal stated to the applicant that it had one last question and that was why did the applicant tell the Department his date of birth was [Date 1] and then produce other evidence, such as his Birth Certificate and Senior School Certificate, which was consistent with that, if it was the case that his true date of birth was [Date 2]. The applicant replied that at the time of the interview, he could not recall what his date of birth was. He said it was so spontaneous that he gave them that date of birth. He then told his father to get a Birth Certificate and a School Certificate to match those dates. The Tribunal noted again that the giving of that date of birth could not have been so spontaneous as he was able to also state his dates of residence in Bangladesh and his dates of education, all of which were consistent with a [Date 1] date of birth. The applicant apologised.

25. The Tribunal asked the applicant if there were any other matters he wished to raise. 

26. The applicant again apologised for providing the incorrect information.

    ASSESSMENT - CIRCUMSTANCES PREVENTING THE GRANT OF THE VISA

27. The Tribunal has considered whether the applicant’s visa application is required to be refused under s.91WA of the Act on the basis that he provided, or caused to be provided, a bogus document as evidence of his identity, nationality or citizenship.

28. Section 65(1) of the Act states that the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is precluded by s.91WA of the Act (emphasis added).  Section 91WA(1) of the Act requires the Minister to refuse to grant a protection visa to an applicant who provides, or causes to be provided, a bogus document as evidence of their identity, nationality or citizenship, or if the Minister is satisfied the applicant has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship.  However, the requirement that the Minister must refuse to grant a protection visa in circumstances contemplated by s.91WA(1) of the Act will not apply if the applicant:  first, has a reasonable explanation for the provision, destruction or disposal;  and second, either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s.91WA(2) of the Act.  Section 91WA is extracted in the attachment to this decision.

29. The provisions of s.91WA of the Act were introduced into the Act with effect from 18 April 2015 and apply to all applications currently before the Tribunal as at that date,[1] including this application.

    Did the applicant provide, or cause to be provided, a bogus document as evidence of his identity?

    [1] Section 2 of the Migration Amendment (Protection and Other Measures) Act 2015

30. The applicant gave evidence confirming that he had produced two birth certificates.

31. The first question to be determined in this regard is whether any documents provided, or caused to be provided, by the applicant are “bogus documents” within the meaning of that term in Section 5(1) of the Act.

32. The Tribunal is satisfied that the applicant provided the Department with a Birth Certificate in the name of [the applicant], with a date of birth of [Date 1], as evidence of his identity. At the hearing, and on his Protection Visa Application, the applicant has stated that his name was [Alias 1] and his date of birth was [Date 2].

33. The Tribunal finds that the Birth Certificate stating a date of birth of [Date 1] which was provided, or caused to be provided, to the Department by the applicant purports to have been, but was not, issued in respect of the applicant as contemplated by paragraph (a) of the definition of “bogus document”, and that such a document is a “bogus document” for the purposes of that definition in section 5(1) of the Act.

    Does the applicant have a reasonable explanation for providing the bogus document?

34. The second question to be determined in relation to the application of Section 91WA to this case is whether the applicant has a reasonable explanation for providing or causing to be provided a bogus document.

35. The applicant provided a number of explanations at the hearing.

36. The first was that his father had provided the Birth Certificate to the Department directly and by email and that he was not aware of the date of birth that had been provided.

37. The applicant’s second explanation was that he messed up the date of birth that he gave to the Department in his entry interview. He said it was a spontaneous error. The Tribunal did note during the hearing that he had also provided evidence as to his dates of residence in Bangladesh and his dates of education that were consistent with a [Date 1] date of birth.

38. The applicant also provided confusing evidence as to the creation of his Senior School Certificate. At first, he said the Senior School Certificate was used by his father to have produced a Birth Certificate. Then he said the Registrar had advised his father to go to a [shop] to have produced a Senior School Certificate. The applicant also stated that he had made contact with the school to have the Headmaster produce a correct Senior Certificate. The applicant had stated that the information on the Senior School Certificates was different in every respect but for his name. The Tribunal had pointed out to the applicant that his roll number was consistent on both versions of the Certificate.

39. The Tribunal notes that the applicant is recorded in the Delegate’s decision (a copy of which was provided to the Department) as stating that he was unsure of his correct date of birth when he first arrived in Australia. The Tribunal further notes that the applicant did not repeat this explanation at the first Tribunal hearing. It notes that the applicant did attempt to offer a similar explanation during this hearing.

40. The Tribunal had suggested to the applicant that the chances of him giving a date of birth of [Date 1] when he first arrived in Australia in error and then subsequently providing a Birth Certificate listing that exact same date of birth are so farfetched that the Tribunal could form the view that the applicant deliberately provided a Birth Certificate and Senior School Certificate to corroborate what he had told the Department on entry.

41. As it transpired, the applicant agreed with the Tribunal and stated that he had told his father that he had told the Department that his date of birth was [Date 1] and further told the Tribunal that his father obtained a Birth Certificate at the applicant’s direction to match the information he had given the Department. Accordingly, the Tribunal finds that the provision by the applicant of a date of birth of [Date 1] at the entry interview and the subsequent provision of a Birth Certificate stating a date of birth of [Date 1] to the Department is not a mere coincidence, and was knowingly a falsehood. The birth certificate containing the date of birth of [Date 1] is a bogus document and the applicant has no reasonable explanation for providing it in light of his maintaining that his actual date of birth is [Date 2].

42. Accordingly, the Tribunal finds that the applicant does not have a reasonable explanation of providing a bogus document.

    CONCLUSION   

43. The Tribunal is satisfied that the applicant has presented a bogus Bangladeshi birth certificate and a bogus Senior School Certificate as evidence of his identity.  The Tribunal is not satisfied that the applicant has a reasonable explanation for providing bogus documents to the Department. 

44. Accordingly, the Tribunal is satisfied that s.91WA(1) of the Act applies to the applicant and that, accordingly, grant of a protection visa is precluded by s.91WA of the Act.

    DECISION

45. The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

    Michael Hawkins
    Member