1828193 (Migration)

[2021] AATA 1254

1828193 (Migration) [2021] AATA 1254 (3 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1828193

MEMBER:Kira Raif

DATE:3 March 2021

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 03 March 2021 at 1:01pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous protection visa application – country of nationality – claimed statelessness – Rohingya born in Myanmar – possession of Bangladeshi passports – nature of a bogus passport – eligibility of Rohingya for Bangladeshi citizenship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 107A, 109

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Zhao v MIMA [2000] FCA 1235

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant first travelled to Australia in August 2009 and was granted visas in Australia. The applicant was most recently granted a Resident Return visa (RRV) in March 2016. In December 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC, Notice) because the delegate formed the view that the applicant did not comply with s. 101 of the Act in relation to the previously held visa. The applicant provided her responses to the NOICC and her visa was cancelled on 21 September 2018. The applicant seeks review of the delegate’s decision. The applicant was represented in relation to the review by her registered migration agent.

3. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. 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.

6. Section 107A provides that possible non-compliances in connection with a previous visa may be grounds for cancellation of the current visa.

   Did the notice comply with the requirements in s.107? 

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. In her response to the NOICC and evidence to the Tribunal the applicant claims that the delegate failed to achieve the requisite degree of satisfaction, rendering the Notice invalid. The Tribunal does not accept that argument. The Tribunal is satisfied that the NOICC contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The applicant also argues that there are factual errors or misunderstandings of the various legislative provisions and country information evident in the NOICC but whether or not that is be the case, it is the role of this Tribunal to conduct a review de novo and any such errors, if they exist, can be ‘cured’ on review.

9. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

10. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

11. The applicant travelled to Australia in August 2009 as a holder of  Bangladeshi passport and a Visitor visa, the passport being issued to her [in] 2009. The passport states the applicant’s place of birth as Chittagong. In support of the Visitor visa application made by the   applicant’s partner, he provided evidence (local government lease agreement) that he owned a property in [Country 1]. That document shows the partner was the landlord and states his place of birth as Cox’s Bazar. The partner also provided in support of that application an employment reference which referred to his employment in a company in [Country 2] for approximately five years. The applicant’s partner provided evidence of his travel to multiple countries such as [Country 3], [Country 4], [Country 5], [Country 6] and [Country 1] as a holder of a Bangladeshi passport.

12. In September 2009 the applicant was included in the application for a protection visa made by her spouse and made her own claims for protection. The applicant stated that her passport was false.

13. In the protection visa application, the applicant

    a.At Question 22 of Form 866C indicated she was ‘stateless’

    b.At Question 23 of Form 866C the applicant stated she had no other citizenships or nationality

    c.At Question 30 of Form 866C and Question 27 of Form 80 the applicant was asked to give details of her travel document. The applicant referred to a false Bangladeshi passport, gave the document number, dates of issue and expiry

14. The applicant enclosed with her application a statement in which she detailed the reasons why she feared persecution and could not return to her home country. The applicant signed a declaration at Page 14 of the application Form 866C declaring that the information she supplied was complete, correct and up to date.

15. The applicant also completed and signed Form 80 in which she gave the following answers.

    a.At Question 8 the applicant stated she was stateless

    b.At Question 11 the applicant stated she was not a dual citizen and had no other citizenship

    c.At Question 13 the applicant stated that she held a false Bangladeshi passport

    d.At Question 27 the applicant referred to her false Bangladeshi passport, gave her passport number, dates of issue and expiry.

16. The applicant included with her Protection visa application a declaration in which she claims to have been born in Burma in [year]. The applicant claimed to be a Rohingya. The applicant referred to the persecution of Rohingya women by the military in Burma and states that her family decided to flee to Bangladesh but did not register with the local authorities and could not stay in a refugee camp. The family arranged through an agent to move to [Country 2] where they lived illegally and had no access to government services. The applicant referred to her husband’s activities. She stated that she was not recognised as a Burmese citizen because she was a Rohingya and a Muslim and she claimed to have feared persecution from the Burmese military as a Rohingya woman. The applicant also made claims in relation to [Country 2] where she claims to have resided illegally for 17 years and experienced discrimination.

17. The applications were initially refused as the delegate found the family to be Bangladeshi citizens but in March 2010 the RRT remitted the matter for reconsideration.

18. The primary decision record indicates that the applicant travelled outside of Australia on the following occasions

    a.Between November 2010 and February 2011. The applicant stated she had spent most time in Bangladesh.

    b.Between January and April 2012 the applicant travelled to Bangladesh.

    c.[Between] January [and] February 2015 the applicant travelled to Bangladesh

19. It is stated that upon their arrival in Australia in February 2015, the applicant and her husband were interviewed by an officer of the Department at Sydney Airport. The delegate noted that the applicant spoke Bangla as a native with the Border Force Officer.  

20. It is stated that the applicant held copies of Bangladeshi passports for herself and her family which specified their address in Chittagong. (The applicant denies this in her evidence to the Tribunal.)

21. In January 2016 the applicant was interviewed by the Department officer. The applicant reiterated the claims made in the Protection visa application, stating that she and her family were forced to flee Burma in 1991, illegally travelled to Bangladesh where they fraudulently obtained a Bangladeshi identity, and she then travelled to [Country 2] on a false Bangladeshi passport. The applicant stated that she met her husband in [Country 2] and they married but could not register the marriage due to their illegal status. She stated that the children were registered as Bangladeshi citizens relying on the parents’ false identities. The applicant confirmed that her nephew worked as a doctor and the delegate found this was not consistent with him being stateless.

22. The primary decision record indicates that in February 2016 a site visit was conducted by the DIBP officers at the Australian High Commission in Dhaka at the Chittagong address specified in the applicant’s Bangladeshi passport. The officers spoke to [Ms A], who sated that the building was owned by [Mr B] (who passed away) and who was her father in law. [Ms A] stated that her husband was in Australia and she had a pending Partner visa application. She stated that [Mr B] was from Chittagong and while he may have possible ties to Burma, he moved to Bangladesh a long time ago and was possibly a Bangladeshi national. She confirmed that the applicant’s husband was [Mr B]’s brother.

23. The delegate had formed the view that the applicant’s claims regarding false passports and visas were incorrect for a number of reasons, including the applicant’s previous visit to [Country 4], their travel to [Country 2] and the ability to find employment there and the husband’s travel to a number of other countries. The delegate formed the view that the applicant may have held Bangladeshi citizenship through her family connections prior to meeting her husband, and that the marriage to her Bangladeshi citizen husband conferred Bangladeshi citizenship on her.

24. The applicant provided several submissions and extensive evidence in response to the NOICC and additional written evidence to the Tribunal. In the submission of 11 January 2018, the applicant provided to the delegate copies of the family’s Australian travel documents with Bangladeshi visas and evidence of fines for overstay, which she claims indicates that Bangladesh considers her and the family as foreigners. The Tribunal does not accept that to be the case, because the issuance of the visa would be necessary if the family travelled on their Australian documents (as they claim to have done) but would not have been necessary if the family held valid Bangladeshi passports on which they travelled. The fact that they chose to travel on the Australian documents may indicate that they did not have Bangladeshi passports at the time of travel (which does not in any way indicate the possibility of existence of such passports earlier) or that they preferred to travel on the Australian documents even if in possession of Bangladeshi passports. Thus, the fact that the family sought and were granted Bangladeshi visas does not in any way establish that they were not Bangladeshi nationals in the past.

25. The applicant submits that the Bangladeshi passports and [Country 1] entry permit must be considered bogus documents under the Australian law because they contain incorrect information about her place of birth, name and date of birth and the passport does not contain her genuine signature. The Tribunal is mindful that the issue here is whether the applicant was recognised as a Bangladeshi national by that country, not her status, or the status of her identity documents, under the Australian laws.

26. The applicant notes that the RRT has considered her claims and found her to be a refugee. The applicant referred to the deficiencies of the NOICC claiming it to be invalid. The applicant refers to country information, noting that under the Myanmar Citizenship law of 1982, any person leaving the country using a foreign passport permanently loses their citizenship. The applicant disputes that the Bangladeshi government had issued passports to Rohingya. The applicant reiterated that she and her family were stateless and had never acquired Bangladeshi citizenship and any passports or identity documents must be considered as being bogus, having been issued through agents. The applicant provided other evidence addressing the issues raised in the NOICC. She referred to her husband’s more recent activities, stating that these give rise to sur place claims.

    Country information [1]

    Rohingya and Bangladeshi citizenship

    [1] This information is adopted from the Tribunal decision in a related matter

27. The majority of independent country information sources indicate that Rohingya have not been able to access Bangladeshi citizenship, largely due to an unwillingness of the Bangladeshi authorities to grant citizenship status even when provisions under Bangladeshi law might have been in theory available to categories of Rohingya, for example those in mixed marriages or children born in Bangladesh.

28. A limited number of sources however note instances of Rohingya who have obtained Bangladeshi citizenship. However, in these sources it is unclear as to whether the Bangladeshi authorities granted citizenship to Rohingya, or whether Rohingya obtained citizenship through means not strictly legal. An incident reported in 1978/1979 in which the Bangladesh government issued genuine Bangladeshi passports to an unknown, but substantial number of Rohingya who were fleeing atrocities in neighbouring Myanmar. The purpose of issuing the passports was to facilitate the Rohingya’s onward travel to Saudi Arabia. Commentary emerging about this incident in 2013, including by Bangladeshi officials, indicates that the granting of passports may have simultaneously conferred Bangladeshi citizenship status on the Rohingya passport holders, despite the relevant Bangladeshi laws being ambiguous on the matter.

29. The majority of independent sources consistently state that Bangladeshi authorities have not granted citizenship status to Rohingya. The European University Institute’s 2016 Report on Citizenship Law: Bangladesh provides a brief historical sketch of the Rohingya in Bangladesh, concluding that there are no legal rules facilitating their access to citizenship within the country:

    Bangladesh accepted some 200,000 Rohingyas in 1978 and 250,877 Rohingyas in 1991 as refugees (also called ‘Myanmar refugees’) ‘on a prima facie basis’ and from ‘humanitarian considerations’…

    Rohingya refugees in Bangladesh or the self-settled undocumented Rohingyas are stateless refugees (Sen 1999) or undocumented stateless immigrants. There are no legal rules facilitating their access to permanent residence or citizenship. Neither does the government of Bangladesh presently permit the local integration of refugees.[2]

    [2] 'Report on Citizenship Law - Bangladesh', European University Institute, 1 December 2016, p.33, CIS38A80125129.

30. In a December 2016 report documenting the rights of Rohingya across multiple countries, Bangladeshi academic and Rohingya specialist Ashraful Azad writes that the only Rohingya with any official status (that is, ‘refugee status’) in Bangladesh are those who entered the country during the 1991-92 influx, and who were accepted as refugees on a prima facie basis.[3] The remainder (noting this was before the 2017 influx of over 700,000 Rohingya) which then numbered between 200,000 and 500,000, were unregistered, and typically labelled as ‘illegal foreigners’, ‘illegal Burmese’, ‘undocumented Myanmar nationals’ (UMN) and ‘economic migrants’ by the Bangladeshi government.[4] Azad proceeds to list the laws regulating the status of the Rohingya in Bangladesh; none of these include the Citizenship Act:

    In the absence of domestic law specifically regulating the status of the Rohingya, the rights of Rohingya to enter and remain in Bangladesh are set out in the Foreigners Act 1946, the Foreigners Order 1951, the Foreigners (Parolees) Order 1965, the Registration of Foreigners Act 1939, the Registration of Foreigners Rules 1966, the Control of Entry Act 1952, and the Passport Act 1920.[5]

    [3] 'Confined Spaces: Legal Protections for Rohingya in Bangladesh, Malaysia and Thailand', Equal Rights Trust, 1 December 2016, p.73, CIS38A80129209.

    [4] 'Confined Spaces: Legal Protections for Rohingya in Bangladesh, Malaysia and Thailand', Equal Rights Trust, 1 December 2016, pp.74-75, CIS38A80129209.

    [5] 'Confined Spaces: Legal Protections for Rohingya in Bangladesh, Malaysia and Thailand', Equal Rights Trust, 1 December 2016, p.75, CIS38A80129209.

31. According to Azad, Bangladesh predominantly uses the Foreigners Act to regulate the entry and stay of the Rohingya in the country, specifically Article 10 which exempts individuals from liability for violating the terms of the Act.[6]

    [6] 'Confined Spaces: Legal Protections for Rohingya in Bangladesh, Malaysia and Thailand', Equal Rights Trust, 1 December 2016, pp.76-77, CIS38A80129209.

32. A 2011 report published by the Danish Immigration Service twice states that the Rohingya are not Bangladeshi citizens, despite their local integration:

    In the North of Bangladesh, a Rohingya would “stand out”, but not in the border area. However, in the villages everybody will know who is a Rohingya which make them vulnerable as they are not citizens. Between 150,000 and 300,000 live in villages and the source assumes they are integrated and has no reason to believe they are excluded from mosques etc., but they are not Bangladeshi citizens.[7]

    [7] 'Rohingya refugees in Bangladesh and Thailand', Danish Immigration Service, 1 January 2011, p.10, CISD9559B11859.

33. A Human Rights Watch report published in 2000 recommends that Rohingya be given the opportunity to acquire Bangladeshi citizenship, indicating that it was not available to them at that time.[8]

    [8] ‘Burmese Refugees in Bangladesh: Still No Durable Solution’, Human Rights Watch, 1 May 2000, 20191115160927.

34. The Australian Department of Foreign Affairs and Trade’s country report on Bangladesh continues to state that Rohingya are not eligible for Bangladeshi citizenship, writing ‘[r]egardless of their arrival date in Bangladesh, Rohingya are not eligible for Bangladesh citizenship (including through marriage) and are not legally entitled to work’.[9]

    [9] ‘DFAT Country Information Report Bangladesh’, Department of Foreign Affairs and Trade, 22 August 2019, para.3.22, p.18, 20190822132438.

1. There is a limited number of sources indicating that some Rohingya have in fact obtained citizenship status, though it is typically not made clear how such citizenship status was obtained, or whether it was legally acquired or not.

2. A 2015 report by the Calcutta Research Group indicates that citizenship via marriage has in the past been an avenue to citizenship:

   From interviews with a number of stakeholders and aid organisations, it turned out that villagers would often adopt a Rohingya family and provide an identity in exchange for free or cheap labour. Till now marriage and citizenship through it is a possibility. However, a draft law banning marriage of Bangladeshis with the Rohingyas has been in the pipeline for some time now…

   In July 2014 law minister Syed Anisul Haque announced a draft law through which Rohingya marriages could no longer be solemnised in the country. This applied to marriages within the community as well as marriage between a Rohingya and a Bangladeshi national – the latter allegedly being ‘used’ by Rohingyas to escape camp life and gain legitimacy as citizens.[10]

   [10] 'Rohingyas: the emergence of a stateless community', Mahanirban Calcutta Research Group, 27 November 2015, p.72, CISEC96CF14326.

3. A 2011 Danish Immigration Services report contains information from a Bangladeshi researcher who indicates that the informalisation of land and registration processes may mean that Rohingya can access these commodities and then gradually ‘formalise’ their status:

   A Bangladeshi researcher who studied the Rohingya, mentioned that given the dimension of informal rural economy in Bangladesh, it is possible for a Rohingya to acquire land, which over time may also lead to registration on voters’ lists and this may facilitate gradual assimilation and “formalization”. New comers may also attempt to use the identity of family members in Bangladesh to obtain a passport. Once a Rohingya has a passport it cannot be proved that you are Rohingya.[11]

   [11] 'Rohingya refugees in Bangladesh and Thailand', Danish Immigration Service, 1 May 2011, p.41, CIS20659.

4. The same report also appears to indicate that pre-2008, marriage could be a pathway to citizenship:

   According to [Ms I], mixed marriages are quite common. Rohingya men are marrying Bangladeshi women in order to be able to protect their children in Bangladesh. In this connection [Ms I] explained that a new law introduced in Bangladesh, the Citizenship (Amendment) Act 2009, entitling a Bangladeshi woman to transmit citizenship to her children, is allowing women to transfer their nationality to their children, even if the father is not a Bangladeshi citizen. Similarly, Mr Tin Soe stated that mixed marriages between Rohingya and Bangladeshis are quite common both for Rohingya men as well as for women. Previously, it was also possible for the Rohingya to have their marriage registered with the Bangladeshi authorities, but after the last elections (2008) and the change of the ID registration system, this is no longer possible.[12]

   [12] 'Rohingya refugees in Bangladesh and Thailand', Danish Immigration Service, 1 May 2011, p.18, CIS20659.

5. A 2011 UNHCR report indicates that some ‘longstanding’ Rohingya based in Bangladesh have obtained citizenship, without specifying the means of citizenship acquisition:

   Those Rohingya currently living in Bangladesh can be divided into four principal groups:

   An unknown number who can trace their origins to Rakhine State but whose families have been long settled in Bangladesh and who enjoy Bangladeshi citizenship. As such, they are not of concern to UNHCR.[13]

   [13] 'States of Denial: Review of UNHCR's response to the protracted situation of stateless Rohingya refugees in Bangladesh', Esther Kiragu et al, United Nations High Commissioner For Refugees, Policy Development And Evaluation Service (PDES), 1 December 2011, p.8, CIS22193.

6. A 2017 article published by Radio Free Asia reports on Rohingya continuing to marry Bangladeshis in an effort to obtain citizenship, an outcome that is sometimes achieved:

   Lacking adequate food, shelter and sanitation, many Rohingya Muslim refugees who fled into Bangladesh from Myanmar are marrying local men in the hope of achieving citizenship and basic services.

   Such marriages are illegal, and often involve polygamy, child marriage or abandonment, BenarNews, an RFA-affiliated online news service, learned during a recent visit to Rohingya refugee camps in southeastern Bangladesh…

   “Getting Bangladeshi citizenship is not easy even when they marry the locals; but the procedure is easier if they marry a Bangladeshi,” said Mozammel Haque, president of Rohingya Resistance Committee, a Teknaf-based organization that opposes Rohingya integration into Bangladesh.

   If a wife or husband lives with a Bangladeshi spouse, they may be entered onto voter lists or put in line to receive a national identity card, because the two populations are hard to tell apart, locals told BenarNews.

   Authorities say they have no data on how many Rohingya are marrying Bangladeshis, or how many achieve citizenship this way.[14]

   [14] 'Marriage an Uncertain Path to Citizenship for Rohingya Refugees in Bangladesh', Radio Free Asia, 27 January 2017, CXBB8A1DA27300.

7. While the above does not clarify whether those Rohingya who appear to have obtained Bangladeshi citizenship have done so in accord with Bangladeshi citizenship laws, there are several avenues under such laws which in theory could be used to avail Rohingya of Bangladeshi citizenship. Country information indicates however that such avenues as discussed below, in practice are typically either not implemented by authorities, or it is not known whether authorities grant citizenship to Rohingya in such circumstances.

8. The report of the Rohingya specialist Ashraful Azad, discusses the interaction of Bangladeshi citizenship laws with the status of the Rohingya in Bangladesh.[15] Jus soli and jus sanguinis are the two traditional paths to acquiring citizenship. Jus sanguinis is citizenship based upon descent and jus soli is citizenship based upon place of birth. Bangladesh has historically recognised the principle of jus soli in only a very limited fashion, as people who were residing in the territory of Bangladesh on 26 March 1972 (when Bangladesh declared independence) became citizens of Bangladesh.[16]

   [15] 'Confined Spaces: Legal Protections for Rohingya in Bangladesh, Malaysia and Thailand', Equal Rights Trust, 1 December 2016, CIS38A80129209.

   [16] 'Confined Spaces: Legal Protections for Rohingya in Bangladesh, Malaysia and Thailand', Equal Rights Trust, 1 December 2016, p.79, CIS38A80129209.

9. Following independence, Bangladesh has largely followed the jus sanguinis principle in determining citizenship. Until 2008, only children born of a Bangladeshi father could acquire Bangladeshi citizenship ipso facto, regardless of whether the child was born within the country or abroad. The Citizenship (Amendment) Act of 2009 replaced the word ‘father’ with ‘father or mother’, with the result that a child can acquire citizenship provided it has at least one parent who is a Bangladeshi citizen. In practice then, the country follows the jus sanguinis principle in determining citizenship at birth.[17]  Consequently, Bangladeshi citizenship laws based on the principle of jus sanguinis have made generations of Rohingya people living in Bangladesh – the vast majority of whom arrived in the country after 1972 – effectively stateless, with this statelessness passed on from generation to generation.[18]

   [17] 'Confined Spaces: Legal Protections for Rohingya in Bangladesh, Malaysia and Thailand', Equal Rights Trust, 1 December 2016, p.79, CIS38A80129209.

   [18] 'Confined Spaces: Legal Protections for Rohingya in Bangladesh, Malaysia and Thailand', Equal Rights Trust, 1 December 2016, pp.79-80, CIS38A80129209.

10. Beyond this general statement of Rohingya statelessness in Bangladesh due to the jus sanguinis provisions contained within the country’s citizenship law, there are questions as to the citizenship status of Rohingya children born to mixed marriages and to Rohingya spouses (particularly women) married to Bangladeshi partners.  The first question, that of children born to mixed marriages, is addressed by Azad. He finds that while the right to citizenship exists in law, and the circumstances exist in practice, there are no known cases of citizenship conferral:

    A child born in Bangladesh to alien parents cannot be a citizen of Bangladesh by birth or by descent. Consequently, a Rohingya child born to two Rohingya parents cannot be Bangladeshi citizen. However, if a child is born to parents at least one of whom is a Bangladeshi citizen, he or she can acquire Bangladeshi citizenship. In such a situation, it is unclear whether the grant of citizenship is automatic or must be granted by the government.[19] Although such a child has an entitlement under law to nationality, in practice, Bangladeshi authorities are reluctant to register and provide nationality to children with a Rohingya parent. There are no known cases where a child born of one Bangladeshi parent and one Rohingya parent (so-called “mixed-marriages”) acquired Bangladeshi citizenship using this legal provision. This practice results in the children of mixed-marriages becoming de facto stateless.[20]

    [19] Note that a footnote within the original text states: ‘Interview with UNHCR staff members, 10 October 2015, Dhaka. The UNHCR thinks this process is automatic while the government thinks it needs to be granted’. 'Confined Spaces: Legal Protections for Rohingya in Bangladesh, Malaysia and Thailand', Equal Rights Trust, 1 December 2016, FN.130, p.80, CIS38A80129209.

    [20] 'Confined Spaces: Legal Protections for Rohingya in Bangladesh, Malaysia and Thailand', Equal Rights Trust, 1 December 2016, p.81, CIS38A80129209.

11. Although, while the right exists in law, the UNHCR has reported on practical difficulties in parents of mixed marriage children accessing citizenship status for their children, due to the need to furnish birth certificates. Given the fact that many Rohingya (including mixed marriage) births are unregistered, unregistered children of parents in couples where one is a parent are therefore unable to apply for citizenship.[21]

    [21] 'States of Denial: Review of UNHCR's response to the protracted situation of stateless Rohingya refugees in Bangladesh', Esther Kiragu et al, United Nations High Commissioner For Refugees, Policy Development And Evaluation Service (PDES), 1 December 2011, p.14, CIS22193.

12. The European University Institute’s December 2016 Report on Citzenship Law: Bangladesh also finds that Rohingya children born to mixed marriages have not been able to access citizenship. The report states:

    Consequently, children born of Rohingya parents living in camps are not accepted as citizens of Bangladesh, although the present rule of citizenship by birth arguably supports their right to Bangladesh citizenship…

    Nor do their children born in Bangladeshi camps have a right to be naturalised on the basis of residence/domicile in Bangladesh for a certain period.[22]

    [22] 'Report on Citizenship Law - Bangladesh', European University Institute, 1 December 2016, pp.11-12, CIS38A80125129.

13. Azad also addresses the question of mixed marriages, finding that while they are common, there is no data on whether such relationships have eventuated in citizenship for the Rohingya partner:

    Another possible route to acquiring citizenship open to Rohingya women is marriage to a Bangladeshi citizen. In accordance with the Citizenship Act 1951, a female non-citizen can be a citizen of Bangladesh if her husband has Bangladeshi citizenship…

    A recent study claims marriage between Bangladeshis and Rohingya are quite common in the areas hosting refugees. Such marriages are often used by the Rohingya as an “integration strategy”. There is no official data on the number mixed marriages between Rohingya and Bangladeshi and number of children born in such marriages. However, after the first phase of the census on unregistered Rohingya completed, a news report which claims its source is in the Cox’s Bazar District Statistics Office, mentions that among the 37,000 Rohingya families covered in the census, 17,000 consist of mixed marriages between Rohingya and Bangladeshis. If these statistics are representative, almost half of all unregistered Rohingya are married to local Bangladeshis.

    However, there is no data on whether any Rohingya woman acquired Bangladeshi citizenship using the marriage relationship. It has been reported that such marriages are often not registered officially. Without official proof of marriage, acquisition of citizenship would not be possible.[23]

    Possession of passports – Evidence of nationality?

    [23] 'Confined Spaces: Legal Protections for Rohingya in Bangladesh, Malaysia and Thailand', Equal Rights Trust, 1 December 2016, pp.80-81, CIS38A80129209.

14. In the late 1970s, the Bangladesh government issued Bangladeshi passports to an unknown number of Rohingya in order to facilitate their onward travel to Saudi Arabia. As outlined below, sources provide conflicting information as to the legality of this process and whether it had the effect of simultaneously granting citizenship status to the receiving passport holders.

15. In July 2013, the Dhaka Tribune published an article reporting that in 1978-79 the government of former President, General Ziaur Rahman, had ordered that passports be issued to ‘Arakanese Muslims’ (that is, Rohingya) who fled to Bangladesh following atrocities in Myanmar in 1978.[24] According to the article ‘hundreds of thousands of the Rohingya Muslims from Myanmar received Bangladeshi passports not by fraudulent means, but by a military regime’. Following a request from the Saudi government, both Bangladeshi and Pakistani officials agreed to issue passports to Muslims (Rohingya) fleeing Myanmar, enabling them to fly onwards to Saudi Arabia. According to the article, ‘no official record is available regarding the number of Rohingya Muslims who got Bangladeshi passports during Ziaur Rahman’s rule’. At the time of the article’s publication however, the then current Expatriates’ Welfare Minister Mosharraf Hossain was quoted as having recently said that ‘around 500,000 Rohingyas are living in Saudi Arabia with Bangladeshi passports’.[25]

    [24] The following section is taken from 'Rohingyas in KSA must forgo Bangladeshi passports', Dhaka Tribune, 20 July 2013, CX318251.

    [25] Most sources place the number of Rohingya currently residing in Saudi Arabia at around 250,000 – see for example: ‘Culture, context and mental health of Rohingya refugees’, UNHCR, 9 October 2018, p.16, CIS7B8394110370; 'Trapped: The Rohingya who flee to Saudi Arabia', Middle East Eye, 1 January 2019, 20190911161213.

16. The same article also quotes several officials who address the question of the legality of the historical exercise of issuing Rohingya with Bangladeshi passports. The then (2013) Bangladeshi Foreign Minister Dipu Moni was quoted as saying that the issuing of passports to Rohingya ‘was not only a historic mistake, but an offence too… Passports cannot be issued to any foreign national. We are trying to correct the mistake that the then government of the country made’.[26]

    [26] 'Rohingyas in KSA must forgo Bangladeshi passports', Dhaka Tribune, 20 July 2013, CX318251.

17. The article proceeds to indicate that the passports may have had the effect of conferring Bangladeshi citizenship on their Rohingya holders, at least in Saudi Arabia. For, according to the article, the Foreign Minister ‘also said the Saudi foreign minister had requested her to issue a document that would strip the Rohingyas of Bangladeshi nationality but would also contain some basic information necessary for their rehabilitation in the Kingdom as Myanmar Muslims’.[27]

    [27] 'Rohingyas in KSA must forgo Bangladeshi passports', Dhaka Tribune, 20 July 2013, CX318251.

18. In February 2014, the (Australian) Department of Immigration and Citizenship, in conjunction with the Refugee Review Tribunal, sought clarification from the Australian Department of Foreign Affairs and Trade (DFAT) on the matters raised in the aforementioned article. DFAT’s response is copied below.

19. There are several sections that are particularly pertinent, indicating that the Bangladeshi passport office claimed to have no record of whether the exercise of issuing passports to Rohingya had occurred (and therefore of numbers involved), but that if it did occur, then it would be indicative of Bangladeshi citizenship of the passport holder.

20. The cable response also quotes a Foreign Ministry official stating that ‘if any Rohingya held a Bangladeshi passport it was illegally obtained’. It is however unclear whether this comment refers to Rohingya in Bangladesh or Rohingya in Saudi Arabia. DFAT’s response states:

    R.1. On 29 January Post [...], spoke to [an official] of the Department of Immigration and Passports over the telephone. When asked about questions raised in reftel, [the official] confirmed that the passport office did not provide passports to anyone other than a person proven to be a Bangladeshi national. The Ziaur Rahman (military) government may have provided Bangladeshi passports to Rohingya but as it was a matter of over three decades ago, the passport authority did not hold any records that could prove such an occurrence.

    R.2. According to [the official of the Department of Immigration and Passports], if a Rohingya holds a Bangladeshi passport it would be if that the person had received the passport as a Bangladeshi national, not as a Rohingya. There is no passport category that allows a Rohingya to get a Bangladeshi passport, therefore there is no way that it can be ascertained through the passport if the person was originally a Rohingya holding a Bangladeshi passport.

    R.3. [The official of the Department of Immigration and Passports] also commented that there are 'rumours in the market' that during Ziaur Rahman's regime due to pressure from the international community Bangladeshi passports were given to some Rohingyas but there was no way to determine their whereabouts or prove that they are Rohingya holding Bangladeshi passports.

    R.4. On 2 February [Post] emailed the Ministry of Foreign Affairs to verify information in the article attached to the reftel, particularly the Former Foreign Minister Dr Dipu Moni's alleged comments in the article regarding the Saudi Foreign Minister requesting her to issue a document that would strip the Rohingya of Bangladeshi nationality.

    On 13 February with reference to the email query, [Post] spoke to [an official] of the Ministry of Foreign Affairs over the telephone. Islam said that the former Foreign Minister Dr Dipu Moni's comments in the Dhaka Tribune article (of 20 July 2013) were misconstrued. He said, "the information in the article has been twisted and there was no such discussion amongst the two Ministers". [The official] further advised that he had been present during the bilateral meeting between the senior government officials of Saudi Arabia and Bangladesh government. The discussion was held with a view to resolve the Rohingya issue in a peaceful way, as the Saudi Government was facing similar problems as the Bangladeshi government over Rohingya settlement.

    With reference to the article, [the official of the Ministry of Foreign Affairs] also said that if any Rohingya held a Bangladeshi passport it was illegally obtained. Bangladesh restricts Rohingyas from entering the country to avoid an influx and so does the Saudi Government. It was agreed in the meeting that Bangladesh was ready to cooperate and work together with the Saudi Government to resolve this issue.[28]

    [28] 'COIS Request No BGD15859 Rohingya with Bangladeshi passports/nationality', Department of Foreign Affairs and Trade (Australia), February 2014, CX318250.

21. Limited additional information has been found addressing the question of whether the issuing of passports, in practice, has the automatic effect of conferring citizenship status. The previously mentioned Ashraful Azad is relevant, stating that the acquisition of a Bangladeshi passport is a right particularly reserved for citizens, referencing the Bangladesh Passport Order 1973, (‘Passport Order’) in support of his assertion.[29]

    [29] 'Confined Spaces: Legal Protections for Rohingya in Bangladesh, Malaysia and Thailand', Equal Rights Trust, 1 December 2016, p.72, CIS38A80129209.

1. In support of Azad’s position, Article 6(1)(a) of the Passport Order for example states:

   6. Subject to the provisions of this Order, the passport authority-

   (1)      may refuse to issue a passport or travel document on any one or more of the following grounds-

   (a) that the applicant is not a citizen of Bangladesh;

2. A closer reading of the Passport Order however indicates that the order envisages circumstances in which passports may be granted to non-citizens in particular situations, specifically in those deemed to further the ‘public interest’. Article 15 states:

   Notwithstanding anything contained in the foregoing provisions relating to issue of a passport or travel document, the Government may issue, or cause to be issued, a passport or travel document to a person who is not a citizen of Bangladesh if the Government is of the opinion that it is necessary so to do in the public interest.[30]

   [30] 'The Bangladesh Passport Order 1973', Government of Bangladesh, Refworld, 8 February 1973, Article 15, 20190705110605.

3. It does not appear then that Article 15 supports either Azad’s conclusion or the statement of the Bangladeshi authority in R2 of the DFAT response above to the effect of ‘‘There is no passport category that allows a Rohingya to get a Bangladeshi passport’. That is, Article 15 appears to be just such a category, and one which would not confer nationality status on the recipient of the passport. However, there does not appear to be any country information indicating whether this was the legal mechanism under which passports were issued to Rohingya, and as the Bangladesh immigration authorities noted above, they do not appear to have records of the event which might clarify the proceedings.[31]

   Persons born in Bangladesh around 1977 and acquisition of Bangladeshi nationality

   [31] 'COIS Request No BGD15859 Rohingya with Bangladeshi passports/nationality', Department of Foreign Affairs and Trade (Australia), February 2014, R1, CX318250.

4. As previously noted, Bangladeshi authorities issued genuine passports to Rohingya fleeing Burma in 1978/79, documents which may have attached Bangladeshi nationality status to them. An unknown number of Rohingya are reported to have obtained Bangladeshi nationality, including in ways which may have been lawful (particularly inter-marriage).

5. Rohingya who were present in Bangladesh at the time of independence should, according to law, also have had Bangladeshi citizenship conferred upon them. However, it is unclear whether any Bangladeshi citizenship status attached to the issue of genuine Bangladeshi passports (in 1978/79) and whether if so it would be considered to have continued should such passport holders have returned to Bangladesh. Sources do not indicate the expiry period for these passports. A 2013 article published in Arab News for example reports that Bangladeshi officials were urging Saudi-based Rohingya to ‘forgo’ their (genuine) Bangladeshi passports, indicating that the passports remained in effect (as citizenship documents, if not valid travel documents) at that time.[32]

   [32] ‘Dhaka wants Rohingyas living in KSA to forego Bangla passports’, Arab News, 12 August 2019, 20191114161014; see also 'Rohingyas in KSA must forgo Bangladeshi passports', Dhaka Tribune, 20 July 2013, CX318251.

6. Somewhat more conclusively, a February 2006 ‘confidential’ cable released by Wikileaks and authored by the United States Mission in Yangon, Myanmar, contains information which appears to address the situation of Rohingya who had entered Saudi Arabia on Bangladeshi and Pakistani passports, stating that these had not been renewed (thereby indicating that they had expired):

   Saudi Arabia: They have just opened an Embassy in Rangoon. The Saudi Charge made clear that the primary goal of this Embassy is to repatriate 120,000 Rohingyas living without documents in Saudi Arabia for many years. They had entered Saudi Arabia on Pakistan and Bangladesh passports, but those countries refused to renew them.[33]

   [33] ‘Burma’s vast internment camp: Northern Rakhine State’, Wikileaks, 17 February 2006, 20191114165236

7. A further source notes however that some Rohingya in Saudi Arabia have been able to renew their passports at the Bangladeshi Embassy in Saudi Arabia, although this renewal was in the context of the passport holders seeking onward travel to Europe in order to seek asylum.[34] It is unclear what nationality status this renewing of the passport conferred onto the passport holders.

   Departure from Burma

   [34] 'Rohingya refugees in Bangladesh and Thailand', Danish Immigration Service, 1 January 2011, p.41, CISD9559B11859.

8. In terms of whether the residency rights obtained by NRC card-holders under the terms of the Registration Act can be lost should a person depart the country, the Act is silent.  Article 7 states that ‘The President of the Union may by order exempt any person or any class of persons from any or all of the provisions of this Act or Rules thereunder’.[35]

   [35] 'The Residents of Burma Registration Act, 1949 (Unofficial Translation)', Government of the Union of Burma, 1949, Articles 6,7, CIS961F9402604.

9. The Residents of Burma Registration Rules, 1951, (‘The Rules’) which attaches to the Registration Act, provides some additional information.[36] In terms of departure from one’s residence, the Rules only contemplate the domestic departure from a person’s place of residence, for temporary purposes or in terms of changing address, and the requirement to register one’s arrival at a new place of residence within the country.[37]

   [36] 'Residents of Burma Registration Rules (Unofficial Translation) 1951', Government of the Union of Burma, 11 January 2012, CIS961F9402603.

   [37] See for example Articles 25 & 26.

10. There is limited additional sources addressing the question of whether residency rights would be lost should a person depart Burma/Myanmar. For example, Human Rights Watch, in a 1997 publication, indicated that Rohingya who were repatriating from Bangladesh (that is, had previously ‘departed’ Burma) around that time, upon return, were re-issued NRCs, under the auspices of the Registration Act and Rules, even though these had been ‘superseded’ by the Citizenship Act 1982, under which Citizenship Scrutiny Cards (CSCs), not NRCs, were from thereon to be issued.[38] This occurred at a time when the military State Law and Order Restoration Council (CLORC) had begun to make serious efforts to implement the 1982 Citizenship Law, including through asking ‘citizens’ to exchange NRCs for CSCs.[39] As a general statement, from around 1988, the Rohingya found it increasingly difficult to access CSCs, or any other indicators of citizenship.[40]

    [38] 'Bangladesh / Burma: Rohingya refugees in Bangladesh: the search for a lasting solution', Human Rights Watch/Asia, 1 August 1997, p.8 CIS10460.

    [39] ‘Myanmar’s Citizenship Law: An Analysis’, Center for Diversity and National Harmony, August 2018, p.10, 20190723140406.

    [40] This topic is beyond the scope of the present report – for a brief account see 'Rohingya: Issues relating to statelessness (Myanmar, Bangladesh and Malaysia)', Country of Origin Information Services Section (COISS), 14 July 2017, pp.5-7, CRF00C22F98.

11. A suite of correspondence in the form of telegraphs (cables) between various British embassies dating from May through to September 1957, housed on the publicly available online Arabian Gulf Digital Archive, an online trove of diplomatic material reproduced courtesy of the National Archives, United Kingdom, contains several relevant points to the question of what might occur to Muslims who departed Burma, in this case in the year 1957.[41]

    [41] ‘FO 371/126999 1957 - Repatriation problems of destitute pilgrims abandoned on coast of Trucial States’, Arabian Gulf Digital Archive, Telegraphs generated by various British Missions, Dated 24 May to 15 November 1957, complete correspondence, 20191118153253.

12. The cables, containing some 185 pages of correspondence, mainly between British embassy staff at their respective missions in Rangoon, Dhaka, Karachi, Dubai and Bahrain – discuss the plight of a group of 83 Burmese Muslim pilgrims originating from Maungdaw in northern Rakhine (Arakan) State, who had left their hometown via neighbouring Chittagong in then East Pakistan to embark on the religious pilgrimage of hajj, only to find themselves abandoned by their ship’s captain and left destitute in Abu Dhabi. In summarising the cables, the correspondence indicates that Burmese authorities would not re-admit Muslims into the country, or at least people of Indian/Pakistan origins, even if they possessed Burmese identity documents, were born and long-term resident in Burma, unless they could prove their Burmese ‘nationality’ status.[42] According to the cables:

    The Burmese however, would certainly refuse to readmit to Burma anyone of Indian or Pakistani origin [that is, Muslims] who had left the country and could not prove that they had been granted Burmese nationality, or a re-entry permit.[43].

    [42] ‘FO 371/126999 1957 - Repatriation problems of destitute pilgrims abandoned on coast of Trucial States’, Arabian Gulf Digital Archive, Telegraphs generated by various British Missions, Dated 24 May to 15 November 1957, complete correspondence, pp.65-66, 20191118153253.

    [43] ‘FO 371/126999 1957 - Repatriation problems of destitute pilgrims abandoned on coast of Trucial States’, Arabian Gulf Digital Archive, Telegraphs generated by various British Missions, Dated 24 May to 15 November 1957, complete correspondence, pp.61, 94, 20191118153253.

    Findings

13. The key issue before the Tribunal is whether the applicant was a national of Burma and had acquired Bangladeshi nationality and therefore provided incorrect answers in response to several questions on the application forms by claiming to be stateless. This is the basis for the cancelation set out in the s 107 notice.

14. The country information set out above indicates that laws in Burma and Bangladesh do not provide Rohingya with the means to gain any form of citizenship and that they are legally stateless.[44]  This is consistent with the claim made by the applicant in her protection application and in response to the NOICC. Importantly, the country information indicates that  those Rohingya who were able to acquire Bangladeshi citizenship would have been unlikely to have been able to do so through lawful means. Again, this is consistent with the claims made by the applicant in her protection visa application.

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

15. The Tribunal has formed the view that many of the matters that formed the basis of the delegate’s findings are circumstantial and speculative. For example, the reference to the applicant’s nephew and his ability to work as a doctor and the assessment of the family’s decision not to bring all the children when fleeing Bangladesh. There is also the reference to the ability of the applicant’s husband to travel, which is not necessarily inconsistent with the claim that he held a genuine (but illegally acquired) Bangladeshi passport. In the Tribunal’s view, such findings are not of sufficiently probative nature as to form a positive satisfaction that the applicant had breached 101 of the Act.

16. In Zhao v MIMA [2000] FCA 1235 the Court stated at [25] and [32].

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

17. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109. Furthermore, although the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 have no direct application in the context of administrative decision making, in the context of s.109, particularly where questions of fraud are involved, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.

18. The Tribunal shares some of the delegate’s concerns set out in the primary decision record. In particular, the Tribunal has concerns about the applicant’s and the family’s travel to Bangladesh and [Country 2] following the grant of the protection visa. However, these were not matters that formed the basis of the cancellation. The grounds for cancellation, as set out in the s. 107 notice, relate to the applicant’s country of nationality and whether she was in fact stateless, as claimed. The NOICC is not concerned with the veracity of other claims the applicant made in her protection visa application. As the Tribunal must determine if there was non-compliance in the way described in the Notice, the Tribunal has limited its consideration to the issue of the applicant’s nationality. Should another NOICC be issued to address other concerns, these could be given further consideration. With respect to the applicant’s nationality, in the Tribunal’s view the cited country information establishes that the applicant could not have legitimately acquired Bangladeshi nationality.

19. The Tribunal is satisfied that the applicant is a Rohingya born in Myanmar. The delegate accepted that the applicant could not have held the citizenship of Myanmar (Burma) and the Tribunal accepts that the applicant was not a citizen of Myanmar. The Tribunal has also found, on the basis of the country information, that the applicant could not have acquired the citizenship of Bangladesh, either through her family connections or by marriage. The Tribunal finds that the Bangladeshi passports the applicant used prior to her entry to Australia and to travel to Australia were not obtained through legal means. While the delegate refers to some facts which may suggest the applicant acquired Bangladeshi nationality or was a national of Burma, the Tribunal places greater weight on the country information which offers a strong basis for a conclusion that the applicant could not have legitimately been a national of either country.

20. Overall, the Tribunal finds that the applicant is not a Bangladeshi or Burmese citizen and that she is stateless, as claimed in her protection visa application. The Tribunal finds that the information the applicant gave in response to several answers in her application for the protection visa in relation to his nationality, was not incorrect. The Tribunal has formed the view that the ground for cancellation has not been made out.

21. The Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

    DECISION

22. 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.

    Kira Raif
    Senior Member

    
    
    

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