1833850 (Migration)

[2019] AATA 6512

1833850 (Migration) [2019] AATA 6512 (25 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833850

MEMBER:Antoinette Younes

DATE:25 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 25 November 2019 at 4:40pm

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 citizenship – stateless Rohingya – holder of Bangladeshi passport – independent country information – Bangladeshi authorities have not granted citizenship status to Rohingya – possession of Bangladeshi passport is not unequivocal evidence of citizenship – decision under review set aside

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

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Sullivan v CASA (2014) 226 FCR 555
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 Immigration 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 delegate cancelled the visa on the basis that the applicant did not comply with s.101 and s. 107A of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. 

3. The applicant appeared before on 24 September 2019 to give evidence and present arguments.  Multiple submissions were provided post-hearing.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages to avoid a conflict of interest with any Rohingya interpreter. In relation to a potential witness, the Tribunal contacted the witness on two occasions on the telephone number provided but it was not answered.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

8. In submissions by email dated 9 October 2018, the representative argued that the s.107 is invalid. The submissions refer to, amongst other things failure to accept a number of claims. The Tribunal is satisfied that the submissions focus more on the merits of the case rather than issues with the s.107 notice.

9. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

10. 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. 

11. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.107A of the Act.

12. Section 101 of the Act provides that:

    Visa applications to be correct

    A non-citizen must fill in or complete his or her application form in such a way that:

    (a)  all questions on it are answered; and

    (b)  no incorrect answers are given or provided.

13. Section 107A of the Act provides that:

    Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa

    The possible non-compliances that:

    (a)  may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and

    (b)  if so specified, can constitute a ground for the cancellation of that visa under section 109;

    include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

14. The matter was initially listed on 17 September 2019 however at the beginning of the hearing, the Tribunal became aware that the applicant knew the interpreter professionally and personally.  The Tribunal decided that there was a clear conflict of interest and the Tribunal decided to adjourn the hearing. 

15. In the course of the hearing on 17 September 2019, without being requested to do so and on the representative’s advice, the applicant presented to the Tribunal a folder containing documents claimed to be original documents.  The Tribunal requested the representative to confirm that copies of all documents contained in the folder would be provided to the Tribunal.  The Tribunal observed that a number of those ‘original documents’ appeared to be in good physical condition, inconsistent with their claimed age, raising concerns about their authenticity.  The Tribunal discussed the Department of Foreign Affairs (DFAT), DFAT Country Information Report Bangladesh, 22 August 2019, concerning document fraud. 

16. The Tribunal referred to the representative’s request to undertake investigations.  The representative withdrew the request.  The representative discussed another matter relating to another family member.  The applicant made a claim that the Department is using other sources of undisclosed information.  The Tribunal explained that its role is to consider the matter afresh and it is a matter for the applicant to put his case in full before the Tribunal.  The Tribunal requested copies of all documents discussed in the hearing to be provided to the Tribunal with submissions about their relevance.

17. In the course of the hearing on 24 September 2019, the Tribunal discussed with the applicant information contained in the delegate’s decision record a copy of which the applicant provided to the Tribunal in support of the application for review.  Relevantly, the Tribunal noted the following:

    i)   [In] February 2009, the applicant arrived in Australia as the holder of a [student visa] on a Bangladeshi passport, number [specified], issued at the Bangladesh Consulate in [City 1], Kingdom of Saudi Arabia (KSA), [in] 2005. The passport records the applicant’s place of birth as Chittagong, Bangladesh and his permanent address of [Address 1], Chittagong, Bangladesh. 

    ii)     On 12 November 2010, the applicant lodged an application for a protection visa, subclass 866. Departmental records indicate that the applicant’s mother [Ms A] who arrived in Australia as the holder of a subclass 676 visitor visa [in] September 2010 and his sister [Ms B] who held a student visa at the same time also lodged applications for protection visas on 12 November 2010. As part of the applicant’s 866 application, the applicant completed a Form 866C – Application for an applicant who wishes to submit their own claims to be refugee.

    iii)   At question 1 of the Form 866C asking “What is your full name”, the applicant replied that his family name is [Family Name 1] and his given name is [Given Name].  At question 7 of the Form 866C asking about the applicant’s date of birth, he responded “[Date 1]”.  At question 8 of the Form 866C asking about the applicant’s place of birth, he replied Town/city “[Village 1], Maungdaw, Burma”.

    iv)   At question 19 of the Form 866C asking about the applicant’s citizenship at birth, he replied Stateless. At question 20 of the Form 866C asking about the applicant’s current citizenship, he replied Stateless. At question 21 of the Form 866C asking if the applicant holds any other citizenship or if he is a national of any other country, he replied “No”.  At question 22 of the Form 866C asking if the applicant has any right to enter or reside, whether temporarily or permanently, in any country(s) other than the country of his nationality or former country of habitual residence, he replied “No”.  At question 23 of the Form 866C asking “if you are stateless, how when and why did you lose your citizenship?”, he replied “Rohingya regarded by Burmese authority as stateless (Check Statement)”.

    v)    At question 28 of the Form 866C asking about the applicant’s current travel document, the applicant replied “…Passport (false)... Document number: [specified]… Country of document: Bangladesh (false)… Date of issue: [date in] 2005… Date of expiry: [date in] 2011… Issuing authority: Consulate General of Bangladesh, [City 1], Saudi Arabia”.

    vi)   At question 30 of the Form 866C asking “Have you ever had, or used, any other passport or travel document?”, the applicant replied “No”.

    vii)  At question 32 of the Form 866C asking about details of countries of former habitual residence or transit before arrival in Australia, the applicant replied Saudi Arabia from which he departed [in] February 2009 and that he did not have valid residence – he was stateless.

    viii) At question 41 of the Form 866C asking “I am seeking protection in Australia so that I do not have to go back to (give name of country or countries)”, the applicant replied Burma. At question 42 of the Form 866C asking “Why did you leave that country?”, the applicant referred to his Statement.

    ix)   In his Statement, the applicant claimed the following:

    I was born on [Date 1] [Village 1] in Maung Daw Township in Arakan State Burma. I am Rohingya the Muslim ethnic minority, are generally known as Rohingyas, who live in northern Rakhine State, Western Myanmar, continue to suffer from several forms of restrictions and human rights violations. The Rohingyas’ freedom of movement is severely restricted and the vast majority of them have effectively been denied Myanmar citizenship.

    When I was small, my parents explained to me that, they have fled from Burma to Bangladesh in 1978. They fled again from Bangladesh to Saudi Arabia by using false Bangladeshi passport. They luckily escaped military junta’s persecution. They did because they wanted to run for their life and try to survive…

    x)    At question 43 of the Form 866C asking “What do you fear may happen to you if you go back to that country?”, the applicant referred to his Statement.  In his Statement, the applicant indicated:

    When I was growing up, I have seen my family always thinking about applying asylum. They are always worried about us because we don’t have any valid documents or citizenship to stay in any country legally in the world.

    I cannot return to Burma because I am a Rohingya Muslim. Even if I could re-enter Burma I would be in constant risk from the military violence, I know that the Rohingya population lives under threat of torture and killing.

    xi)   At question 44 of the Form 866C asking “Who do you think may harm/mistreat you if you go back?”, the applicant referred to his Statement. In the Statement, the applicant noted that the “Burmese government authority does not accept me a citizen because I am Rohingya. Even if I could re-enter Burma I would be, I know that the Rohingya population lives under threat of torture and killing”.

    xii)  At question 45 of the Form 866C asking “Why do you think this will happen to you if you go back?”, the applicant referred to his Statement where he indicated “I cannot return to Burma because I am a Rohingya Muslim. Rohingya are not allowed to practise their religion in Burma. I do not speak Burmese.”

    xiii) In response to question 46 of the Form 866C asking “Do you think the authorities of that country can and will protect you if you go back? If not, why not?”, he referred to his Statement where he claimed that the Burmese authorities do not accept him as a citizen because he is Rohingya.

    xiv) The applicant signed the Declaration at page 14 of the Form 866C which states:

    I do solemnly declare:

    ·The information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail

    ·I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.

    xv)  In support of the application, the applicant provided a copy of a letter dated [October] 2010 written by his mother to the Consulate General of Bangladesh in [City 1] KSA on behalf of her and her children, stating that she was returning the false Bangladeshi passports to that office. The letter included a copy of an Australia Post receipt dated [October] 2010 for the cost of the postage.

    xvi) In support of his protection visa application, on 12 November 2010, the applicant lodged a Form 80 Personal Particulars for Character Assessment (Form 80). At question 19 of the Form 80 asking for information relating to his parents, the applicant indicated that his father’s name is [Mr C], born on [date] in [Village 1], Maungdaw, Burma, nationality Stateless, living in Saudi Arabia. In relation to his mother, the applicant indicated that her name is [Ms A], born on [date] at [Village 2], Maungdaw, Burma, nationality stateless and living in Australia.         

18. On the basis of the stated claims, the applicant was granted a protection visa on 26 July 2011.

19. The delegate’s decision record further indicates that on 25 February 2016, Departmental officers based at the Australian High Commission (AHC) in Dhaka, Bangladesh, conducted a visit that  revealed issues of concerns as discussed with the applicant.  The delegate also referred to a number of matters that raised concerns about the applicant’s claims, as discussed in the course of the hearing. 

20. The delegate concluded that the applicant is a citizen of Bangladesh, he holds a genuine Bangladeshi passport and that he has the rights and privileges of all Bangladeshi citizens. Consequently, the delegate found that the applicant is not stateless as claimed.

    Notice of Intention to Consider Cancellation

21. The Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC) dated 17 July 2018. 

22. In response to the NOITCC, dated 6 August 2018, the representative provided an analysis of the delegate’s decision and raised the following issues:

    1)    As the Department of Foreign Affairs and Trade (DFAT) is aware, there is no legal process of naturalisation available for Rohingya who entered Bangladesh illegally. The applicant is a stateless Rohingya from Myanmar and he has no legal right to enter or reside in any other country. The applicant does not have effective protection in Bangladesh.

    2)    The applicant’s Bangladesh passport was obtained through document fraud by the provision of false information as to his country of birth, and as to his parents’ citizenship status at birth.  AAT Case number 1606601 refers to advice of DFAT in 2016 that “Rohingya in Bangladesh are not eligible for citizenship, including through marriage”. Birth in Bangladesh only prior to 1971 confers citizenship. Bangladesh has never had a policy of issuing citizenship or passports to Rohingya refugees from Myanmar. It is “notorious that large numbers of Rohingya have fraudulently obtained genuine Bangladeshi passports, over many decades, through document fraud”[1].  There was no way possible for the applicant or his family members to obtain Bangladeshi citizenship through naturalisation or any other means as they were not resident in Bangladesh for eight years before acquiring fake or fraudulently issued passports.  In any event, as they did not enter the country legally, they had no period of residence there at all to count towards any process of naturalisation and had no legal pathway to naturalisation.

    3)    Family members were granted an Iqama as Myanmar nationals during the amnesty in the 80s or early 90s (attached a copy of one of the early Iqamas recognising the applicant as a Myanmar national). The applicant and family members were not born in Chittagong and they are not and have never been citizens of Bangladesh. It was only in 2005 that the applicant first obtained fraudulently a Bangladeshi travel document using a fake identity by which he falsely claimed to have been born in Bangladesh and to have been born as a Bangladeshi citizen. DFAT has reported the high prevalence of document fraud in Bangladesh.     

    [1] At page 10 of the submissions.

23. In further submissions dated 9 August 2018, the representative referred to the delegate’s comments that in 1978 – 1979 Major General Ziaur Rahman (founder of the political party BNP) issued Bangladesh passports to Arakanese Muslims to facilitate travel to KSA. The representative stated that it is “disappointing in the extreme that the Department of Home Affairs is prepared to accept blatantly false propaganda issued by the Awami league in order to discredit the BNP as allegedly not being tough enough on Rohingya’s. The newspaper statement alleges that the BNP was naïvely benign towards the Rohingya and granted them citizenship and passports so that they could flee to Saudi Arabia... The reality was much more brutal… I request that you provide some real evidence as to this alleged genuine grant of citizenship by Bangladesh to the 1978 Rohingya refugees or withdraw the allegation. As it presently stands the allegation is utterly unsupported and is unconscionable. In order to avoid such mass murder, many Rohingya disappeared illegally into the Bangladesh community illegally and remained undocumented. In order to avoid deportation to Myanmar, many paid brokers to obtain false or fraudulently issued passports falsely claiming the holder to be a Bangladesh citizen, and fled from Bangladesh to Saudi Arabia…”[2].

    [2] At pages 2 and 3, paras 4-6 of the submissions.

    Submissions to the Tribunal Received 13 September 2019

24. This Submission seeks to substantiate the claim that the father of the applicant [Mr C] ([DOB]) did not have Bangladeshi citizenship. In summary, the representative submitted that:

    ·The site visit report was flawed and lacked clarity.  It attributed some information to the applicant’s wife that must have come from other sources. The conclusion that the passports of [Mr D][3] and the applicant’s father were genuine is contradictory to the finding by the Department that the two were born in Burma.

    ·The decision made by the Department not to revoke the cancellation under section 131 of [Ms B][4], the applicant’s sister shows that the Minister accepted that the applicant’s father was born in Burma.

    ·There are two categories of fraud, namely, fraudulently acquired citizenship and fraudulently acquired documents used as false evidence of citizenship.  The applicant’s father fraudulently obtained evidence of citizenship and did not de jure acquire citizenship of Bangladesh.

    ·The Bangladeshi passport that his father obtained, as well as the passports obtained by himself and his family, were fraudulently obtained on the basis of false identities, and thus were not evidence of citizenship – “It could never be a true identity because it is based on a lie, a lie that he was born in Bangladesh.  [Mr C], born Chittagong, is, on the facts, a fictitious person”.

    [3] Applicant’s cousin whose visa has also been cancelled.

    [4] Up until the review, the Tribunal had no knowledge of this matter or any of the reasons for cancellation.  The representative included a copy of the Departmental decision record in relation to [Ms B].

    Statutory Declaration of [Ms E], wife of the applicant, received 16 September 2019, unsigned

1. The first part of this declaration details the events that led to the marriage of [Ms E] and the applicant. [Ms E] states that a go-between, [Mr F], had introduced her to the applicant and in doing so mentioned that the applicant’s family owned the building in which she [worked]. [Ms E] states that this statement by [Mr F] has to do with the role of the go-between in Bangladesh, which is to boast about prospective spouses and their families.

2. The second part of the Declaration details the site visit of the building in which she worked by officers of the Department of Home Affairs. She expressed concerns about the detail of notes that the two officers were taking. She stated that she confirmed to the officers that the house was owned by her father-in-law, but that she later found out from her husband that this was not the case.  Her husband told her that the building was owned by [Ms G].

   Submissions dated 16 September 2019

3. The submissions make the following observations:

   i)   The applicant, his mother and his sister arrived in Australia on fraudulent Bangladeshi passports. Scans of passports belonging to the mother and father, claimed to be fraudulent were provided. This supports the family’s contention that they travelled to Saudi Arabia using false passports with Umrah religious visas in July 1979 and that those passports have been taken by the agent upon arrival in Saudi Arabia. As a result, the parents were undocumented in Saudi Arabia. Subsequent to a significant period of time of being undocumented, a broker arranged for them to have fraudulent passports with stamps purporting to be issued in Chittagong. The passports for both parents have a different address which would not be the case of a genuine passport for a husband and wife. Moreover, neither passport has the address of the house indicated in the later passports

   ii)     The Iqama (work permit) issued in Saudi Arabia indicates that the family are Burmese and that there is no such person as [Mr C], and that this substantiates the claim that the applicant’s father used multiple identities to survive as a stateless Rohingya refugee. The Australian authorities have misunderstood the three identities used by the applicant’s father. There is no such person as [Mr C] and this was an identity created from the Saudi Iqama (which indicates the family are Burmese). The Bangladeshi passports themselves indicate [Mr C] but the next lines say father but then it is written in pen “late [Alias 1]” or “[Alias 1]”. Cumulatively those matters suggest that both the initial 1980 passport for [Mr C] and his wife were fraudulent and consequently the whole series of subsequent passports acquired by the applicant’s parents, his sister and himself were also fraudulent. In 2010, the applicant, his sister and his mother were accepted as refugees with the country of reference being Burma. The delegate accepted that they were stateless.

   iii)   On 4 February 2016, the Department sent a request to the Bangladeshi Post requesting an investigation into the family apparently to determine whether the passports were genuine. The report concluded that “As per our assessment, it appears that [Mr D] and the other individuals listed in the above report are drawing upon the ancestral ties to Burma to obtain Australian entitlements.” The site report concluded that the Bangladeshi passports were genuine, contrary to the claims that although the passports were genuine, they were fraudulently obtained. Consequently, the site visit of 25 February 2016 was conducted on the presumption of information in the passports and that the applicant and [Mr D] were originally from Cox’s Bazar in Bangladesh, – that is to say born in Bangladesh with only ancestral ties to Burma. The site visit conversation with [Ms E] was conducted by the Bangla-speaking PMO with very limited notes taken. Three weeks after the visit, on 17 March 2016, an email was sent by the English-speaking officer which is subsequently referred to as the site visit report. Upon receipt of this report, the identity officer accepted the conclusions from the site visit that the Bangladeshi passports were genuine, but could not support that finding. Although the identity officer considered it plausible that the applicant and [Mr D] were originally from Bangladesh, the officer ultimately rejected the theory and substituted a finding that they were originally Burmese citizens who migrated to Bangladesh – the officer concluded that the applicant’s father was originally a Burmese citizen with strong ties to Bangladesh, either through family or business, which enabled him to apply for, and be granted Bangladeshi citizenship.

   iv)   The Department “failed to investigate the inherent contradiction of the finding within the identity assessment...” and found that the applicant was born in Chittagong, Bangladesh as a Bangladeshi national. The s.107 notice does not address these fundamental dichotomies.

4. In an email of 16 September 2019, the representative stated “I request that the Tribunal request to be sent the Chittagong site visit report, and identity assessment, as well as the email of 4 February 2016 request in the investigation, from the Department of Home Affairs”. This was discussed in the course of the hearing and the representative retracted that request. He however did not articulate the exact reasons and the nature of the request.

5. On 16 September 2019, the representative provided amended submissions of 16 September 2019 in relation to the permanent address listed in the table on the second page of the submissions for [Ms A].  There were no other changes to the previous submissions.

   Submissions of 23 September 2019

6. The representative attached to those submissions house lists for the applicant’s father’s younger stepsister [Ms H]. The representative noted that the first and oldest house list was previously provided to the Tribunal and the second house list was provided to the Department in 2009 by the applicant’s uncle [Mr D]. The representative indicated that the third house list is the most recent. He also provided photographs of the site where the house stood and submitted that [Ms H] was forced to flee with her family in 2017 to Bangladesh and she is a registered refugee with UNHCR. The representative noted that the relevance of her status in Bangladesh is the same as of her brothers, [Mr D] and the applicant’s father, namely as unlawful non-citizens. The representative noted that they have been attempting to re-establish contact with her or her sons to give evidence to the Tribunal however the Bangladesh government has cut communications to the camps as part of its repatriation strategy.

   Evidence at hearing on 24 September 2019

7. As noted above, in the course of the hearing the Tribunal referred to the information contained in the delegate’s decision. 

8. The applicant gave evidence that he was born on [Date 1] in Burma.  He has three younger sisters aged [age], [age], and about [age] years.  All were born in Saudi Arabia.  One of his sisters is in Bangladesh and the other two are in [Country 1].  His father was born in Burma and he died at the age of [age]/[age].  He was living in [Country 1] at the time.  His mother was also born in Burma.

9. The applicant gave evidence that his father was educated at a Burmese university and that he completed a [qualification], majoring in [discipline].  The Tribunal asked the applicant how his father managed to obtain tertiary qualifications, given that he was not Burmese but stateless.  The applicant stated that the Department misunderstood.  He said in the seventies things were different.  He referred the Tribunal to “the documents”.  The Tribunal pressed the applicant to provide an explanation about how his father who is claimed to be stateless managed to obtain tertiary qualifications.  He said the law was flexible at the time.  The applicant said he was not born at that time and he did not know all but perhaps his father expressed interest to study and was therefore allowed.  He said the main problems occurred after 1975/1976.  He said prior to 1978, his father had an ID – a national registration number given by the Burmese authorities.  He said he understands that this was proof of Burmese nationality.  The Tribunal indicated this would suggest that he was considered to be a national of Burma.  He said his father was “accepted by the government before 1978…all trouble started after 1976”.  He said his father was born in [year] and he was accepted by the Burmese government to be a Burmese citizen and therefore he was able to go to university.  The Tribunal indicated that this would suggest that his father was not stateless.  He said in [year], his father was born as a Burmese national but problems started in 1970s when the Rohingya began to face problems.  He said his father was not accepted as a police officer and he became frustrated.   

10. The applicant stated that his parents left Burma sometime in 1970’s when he was about [age] and went illegally (as far as he knows) to Bangladesh where they lived for about a year.  He said as far as he knows, they had no passports.  His father worked as a volunteer in a refugee camp and they lived in an unregistered camp near the UNHCR camp.  They left around 1979 and went to Saudi Arabia using Bangladeshi passports obtained fraudulently.  His father worked in Saudi Arabia initially as a [Occupation 1] but later worked for [companies] as a [Occupation 2] initially and he was later promoted to [Occupation 3].

11. The Tribunal queried how his father managed to work legally in circumstances of illegal entry.  He said they entered Saudi Arabia on Umra (Pilgrimage) visas as he was told by his mother.  He said they were illegal for some time until they got the Iqama. The Tribunal asked how his father managed to work if they were illegal for some time.  He said he does not know as he was about [age] years old at that time.  He said the Saudi Arabian government was sympathetic towards the Rohingya who were taking [Occupation 1] jobs that were undesirable to others.  He said Rohingya had nowhere to go.  Essentially, he said the Saudi Arabian government would have known that the family was illegal but they were sympathetic.

12. He said the family lived in Saudi Arabia for about 30 years but he did not want to integrate in “that society…”.  He was educated in [Country 2] and completed a [qualification], in English.  The Tribunal asked how he learnt English, he said at school as well as through newspapers.  He said in Saudi Arabia, he went to a community school that followed the Bangladeshi school final board exams and curriculum.  The applicant said the school that he attended was a private school with the aid of “rich people”.  He said they paid small fees.  He said at the school he learnt the Bangladeshi curriculum.  He learnt Urdu and Bengali, as well at school. 

13. The Tribunal queried why he went to such a school when they were not Bangladeshi nationals.  He said the standard of Saudi Arabian schools was lower than others.  He said initially he started in a Pakistani school where he was for six months.  After finishing high school, he went to Bangladesh for a year using a genuine Bangladeshi passport obtained fraudulently.  He said his father got the passport through a broker.  He said he was there for about 6 months to a year.  He lived at his cousin’s place and sat for an exam.  He returned to Saudi Arabia and later returned to Bangladesh for the second part of the exam.  He travelled by plane and was never questioned by the Bangladeshi authorities.  Subsequently in 1997, he went to [Country 2] which did not require a visa for Bangladeshi passport holders.  He said [Country 2] was a culture shock and he returned to Saudi Arabia after 6 months.  He went back to [Country 2] in 1999 and finished the [qualification].

14. The applicant gave evidence that he went to Bangladesh on 5-6 occasions.  He wanted to be a football player but his parents did not agree.

15. The Tribunal discussed with the applicant the information contained in the delegate’s decision record that on 25 February 2016, Departmental officers based at the Australian High Commission (AHC) in Dhaka, Bangladesh, conducted a visit as follows:

    ·At [Address 1], Chittagong which appears on the applicant’s passport and those of his parents and sister.

    ·The four story building is owned by [Mr C], the applicant’s father who has passed away. The building houses a primary school and the top floor is occupied by the owner’s family. The school has occupied those floors for the last 10 years.

16. The Tribunal queried why his father owned the building in light of living in Saudi Arabia for 30 years.  He said his father used that address for passport purposes.  He said his father did not own the building.  He said his cousin ([Ms G]) lived in the top floor because it was her house which she owned with her husband.  He said his father used her address in order to get the Bangladeshi passports.  That is, his father provided false information to the Bangladeshi authorities in order to get the passports. 

17. The Tribunal indicated that on his own evidence false information and fraudulent documents were provided making it difficult to be satisfied that the documents he is providing are authentic and or contain truthful information.  He said they had to adopt false identities in order to survive.

18. The Tribunal discussed with the applicant the information contained in the delegate’s decision record that on 25 February 2016, the Departmental officers found that:

    ·The applicant’s family visited Chittagong every year and stayed there between 2 to 3 months.

    ·Relevant Bangladeshi laws relating to the regulation and transfer of property in Bangladesh suggest that the applicant’s father held Bangladeshi citizenship. Departmental officers concluded that although the applicant’s father might have been born in Myanmar, he was a Bangladeshi national which means that the applicant is himself a national of Bangladesh.

    ·[Mr C] was from Cox’ Bazar district of Chittagong and he moved to Chittagong city with his family. He started a business in Saudi Arabia and became a successful businessman. He then expanded his business in [Country 1].

19. The applicant said it is not correct that the family visited Chittagong every year and stayed there between 2 to 3 months.  He said he had evidence in support but then later said he did not.  He said this was “fabricated” by the Departmental officers.  The Tribunal pointed out that allegations of wrongdoing against officials are very serious.  Later he corrected himself and said they did not include information in his favour.  The applicant subsequently apologised and retracted the allegations against Departmental officers. He said they must have misunderstood.  He gave evidence that his father is not from Cox’s Bazar district which is incorrect.  He said his father was not a businessman but was a [Occupation 2].  In relation to ownership of the property, he disputed that his father owned the building and said that it is incorrect that foreigners cannot own land in Bangladesh.  The representative interjected and indicated that documents have been provided in relation to the sister’s case (of which the Tribunal has no knowledge) about ownership.

20. The Tribunal discussed with applicant the information contained in the delegate’s decision record that:

    ·His mother, [Ms A] arrived in Australia [in] September 2010 as the holder of a subclass 676 visitor visa. In her application for the visa, she provided a letter from the applicant’s father’s employer in KSA certifying the applicant’s father’s position of [Occupation 3] in the company, the income he was earning as well as his Saudi residence permit number. In support concerning adequate funds for her stay in Australia, the applicant’s mother provided bank statements from four accounts that his father held at the same time as well as letters from two of these banks, Chittagong Bangladesh office ([Bank 1] and [Bank 2]), confirming active accounts and holding significant funds to which she had access.

    ·His mother provided copies of her Bangladeshi passport, which she later claimed was fraudulently obtained, which had multiple entry and exit stamps to countries including travel to Bangladesh in 2004, 2006, 2008 and in 2009 and to [named country] and [named country] in 2005.  The applicant’s mother provided a copy of her Iqama or Saudi Arabia residence permit. The [Bank 1] certificates which the applicant’s father provided in support of the mother’s visitor visa application list his residential address as [Address 1], Chittagong, Bangladesh. This address is also listed on the applicant’s Bangladeshi passport as well as those of his sister and mother.

21. The applicant gave evidence that it is easy to obtain financial documents and that they paid bribes through an agent to get the financial statements which are false.  He said the family did not have this sort of money and when they were living in Saudi Arabia.

22. The Tribunal referred to information contained in the delegate’s decision record that in her statutory declaration in support of her application for a protection visa, the applicant’s mother claimed that she and her husband left Myanmar and arrived in Bangladesh in July 1978. She claimed that the applicant’s father found a broker through friends in Bangladesh who arranged for the false passports. She claimed that they flew from Dhaka to [City 1] in KSA in July 1979 as the holders of the Bangladeshi passports claimed to be fraudulent.  She claimed that upon arrival in KSA, their passports were taken by a broker and they were taken by bus and driven to [City 2] to begin residing in [a] district in [City 2] where there were many Rohingya communities. She stated that the applicant’s father tried to find work but this was not easy because they were unlawful but he at times worked as a casual [Occupation 1].

23. The Tribunal referred to information contained in the delegate’s decision record that the applicant’s father previously travelled to Australia between [September] 2009 and [October] 2009 as the holder of a visitor visa granted on 7 July 2009 using a Bangladesh passport [number]. His passport includes evidence of travel to countries including [named country], [Country 1], [named country] and [named country]. He held a [specified] position with a high salary indicative of someone who holds genuine documents and with the capacity to travel internationally on a genuine Bangladesh passport without the fear of detection by the relevant authorities. He renewed his passports on numerous occasions and his Iqama was also frequently renewed to permit him to remain for over 30 years.

24. The applicant gave evidence that his father came to Australia on one occasion.  He said his father came to see him and had travelled to a few countries for work.  He said his father used a fraudulent passport but “…all information was right”.  He gave an example of the Bangladeshi Embassy issuing false documents undetected by the Australian authorities.

25. The Tribunal referred to information contained in the delegate’s decision record that on 13 January 2014, the applicant’s father applied for a subclass 309 partner visa sponsored by the applicant’s mother. In support of this application, the applicant’s father provided a genuine Burmese passport, issued [in] 2013 in Yangon Myanmar. This recognition by Myanmar of the applicant’s father’s citizenship and the issuing of a valid passport 31 years after the Burma 1982 citizenship law (that officially left Rohingya stateless) indicates that at the time, the father was a citizen of Myanmar suggesting that the father was not Rohingya.  The applicant said his father bought the passport through a broker.  That is, it is not a genuine passport. 

26. The Tribunal noted that a review of the United Nations High Commissioner for Refugees response to the protracted situation of stateless Rohingya refugees in Bangladesh dated December 2011, which states that “Rohingya currently living in Bangladesh can be divided into four principal groups: (a) 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[5]”.

    [5] As noted in the delegate’s decision record.

1. The Tribunal referred to information contained in the delegate’s decision record that the marriage certificate for the parents provided in support of the Partner visa application indicates that the applicant’s father held a national registration card in Myanmar. The applicant’s parents married [in] July 1975 prior to the changes initiated under the 1982 citizenship law which removed Rohingya from the previous 144 ethnic groups eligible for citizenship in Myanmar. The marriage certificate included national registration details – name [Mr C], [age] years, national registration [number], race and religion Muslim/Islam.  The applicant said his father was registered as a citizen of Burma until he left the country in 1978.  The Tribunal asked how then he was able to obtain the Burmese passport in 2013 to which he reiterated his earlier evidence that it was fraudulent. The Tribunal expressed concerns again about the difficulties in accepting documents as genuine given the multiple admissions of fraudulent documents.

2. The Tribunal referred to information contained in the delegate’s decision record that in the application for a protection visa, the applicant provided documents indicating that according to the Ministry of Education in Rangoon, Myanmar, his father completed his high school education in [month year] and a [Qualification] from [University 1] in Rangoon Myanmar in August [year]. To be eligible for education in Myanmar, he would have had to provide evidence that he held a national registration number which indicates that he was a citizen of Myanmar.  The applicant said that his father was a citizen of Burma but he lost his citizenship when he departed and became stateless.

3. The Tribunal referred to information contained in the delegate’s decision record that in his application for a protection visa, the applicant claimed that his family was residing illegally in KSA. In support of his father’s visitor visa application, the father provided evidence of valid Saudi residence permits for him and his family members. The applicant’s father claimed to have lived and worked in KSA from 1979 until 2012. Evidence from the father’s application for the visitor visa included his Saudi Iqama national identity work card (permit) [number] which was valid [to] November 2011. A check of this number on the official KSA Ministry of Interior website indicates that the Iqama was legitimate and was further extended [to] November 2013.  Under the Saudi employment and Labour Law, all individuals who go to the KSA to work must have a sponsor, which can be either a Saudi Arabian national or international company. In order to live in KSA, as an employee a person must obtain a residence permit or ID(IQAMA) which is the main identity card for expatriates in KSA (at all official dealings) including government offices, banks, checkpoints and airports. The Iqama is issued by the immigration and passports Department of Saudi Arabia and is valid for either one or two years. The permit holder’s passport is held by the employer for the duration of his employment. Given that the father held an Iqama would suggest that the family did not leave illegally in KSA. He said they were not lawful in KSA and lived there under false identities, namely passports.  He said sometimes his father was not able to renew the Iqama. 

4. The Tribunal referred to further information contained in the delegate’s decision record that to obtain an Iqama, an applicant requires a formal invitation from the company or individual sponsorship which means that the sponsor makes the application on behalf of the applicant. The invitation includes a visa number and is a statement that the sponsor has obtained a visa for the visitor and for the authority to issue the visa. Once the visa number is issued, the visitor then goes to the relevant embassy to obtain the visa, without a visa number, no visa would be issued. Therefore the visa number contained in the sponsor’s invitation would match the visa number sent to the Saudi Embassy and the number on the visa issued to the visitor. On arrival in Saudi Arabia, the visitor is required to show evidence of the existing employment contract and relevant academic or professional credential documents to match the occupation nominated.[6] A condition of the Iqama is for the sponsoring employer to hold on to the employee’s passport during their residence in Saudi Arabia. The employee must also request his employer for permission for him and his family members to travel outside of Saudi Arabia.  He said this was “absolutely” correct under current conditions which did not apply in the 1980s.

   [6] The delegate's decision record refers to

5. The Tribunal referred to information contained in the delegate’s decision record that the applicant’s father provided bank certificates issued on [date] and [date] June 2010 with the address: [Address 1], Chittagong, Bangladesh, a property which was found to be owned by the applicant’s father indicating that he was documented and not stateless.  He did not agree.

6. The Tribunal referred to information contained in the delegate’s decision record that since his first arrival in Australia [in] February 2009, the applicant has entered Australia on 14 other occasions from August 2010 until September 2017. On 12 of those occasions, he indicated on his incoming passenger card that the country where he spent most time abroad was Bangladesh. In total, the applicant spent 631 days outside of Australia since his initial arrival on the student visa in 2009, and a total of 597 days outside Australia since the grant of the protection visa. The frequency of his travels and the length of stays suggest that the applicant has the right to enter and reside in Bangladesh providing further evidence of his Bangladeshi citizenship.  He said he got permission from the Bangladeshi authorities to travel as a tourist.  He said his wife was living in Bangladesh.  They married in 2012.  They have an Australian citizen child who is [age].

7. The Tribunal put to the applicant that the information suggests that the applicant and his parents obtained Bangladeshi citizenship before they travelled to Saudi Arabia in 1979 and that his father was able to apply for a work permit and travel to KSA as a legitimate Bangladesh passport holder in his name. The information suggests that the applicant’s father, as the holder of a Bangladesh passport held a genuine Iqama and resided in KSA between 1979 and 2013. 

8. In relation to the discretionary factors, the applicant indicated that he has made a contribution to the Australian community.  He said he has been working as an [Occupation 4] but was currently working [in another job].  He said his daughter’s identity would not be accepted if found not to be Rohingya. He said his wife did not know at the time of their marriage that he was Rohingya because of potential adverse consequences.  The Tribunal expressed concerns at his evidence that he was not truthful with his wife.  He said he told her immediately after their marriage that he was Rohingya.  He said she never asked him previously.  He said he has complied with the law.

9. The Tribunal discussed with the applicant the documents provided to the Department and to the Tribunal.  In relation to the DIBP Inspectors’ Reports of 19 September 2017, specifically in relation to the comments of being “angry”.  He said he did not like the way the officer spoke to him and they kept him aside for an hour.  The Tribunal indicated that it would not draw adverse inferences on that basis but reminded the applicant of the importance of positive dealings with the Australian authorities.  In relation to the visa from the Bangladeshi authorities showing his nationality as Australian which is incorrect, he agreed that it was incorrect.  He said it was a mistake.  In relation to the other visa showing his nationality as Burmese. He said he obtained the visa through the Embassy.  The Tribunal raised concerns about the information contained in those documents.

10. The Tribunal raised concerns about a number of documents which appeared to be in good physical condition raising doubts about the truthfulness of the claims relating to their age.  The Tribunal has decided that as the Tribunal is not a document expert, it would not draw any adverse conclusions based on its own personal observations.  The Tribunal advised that it would further consider the weight that it would place on the documents and drew attention to the fact that on the applicant’s own evidence, a number of documents have been obtained fraudulently and/or contain incorrect information raising concerns about the documents generally.

    Section 359A letter

11. On 27 September 2019, the Tribunal sent to the applicant a s.359A letter in relation to the evidence his wife, [Ms E] gave evidence in the course of her hearing on as follows:

    In the course of the hearing, the applicant provided a copy of [Ms E]’s unsigned and undated Statutory Declaration, which the representative advised was prepared a couple of weeks ago.  A copy of the applicant’s Statutory Declaration was previously provided to the Tribunal in relation to the review application you lodged. 

    [Ms E] gave evidence that she initially thought that you and your family were from Bangladesh but a few days…many days after the marriage, you told her that you and your family were Burmese of Rohingya ethnicity.

    As you know, the Tribunal had expressed doubts at the version that [Ms E] did not know at the time of your marriage of the family’s nationality or ethnicity. The Tribunal will consider your and [Ms E]’s explanations.

    The Tribunal later asked [Ms E] when she found out about the family’s nationality and ethnicity, she now stated that it was about a year after her marriage. The Tribunal asked her if she knew where your family had mostly lived.  She said that after the marriage she knew that they lived with [Ms G].  She later said that your family mostly lived in Saudi Arabia.  In relation to the different accent in Bengali, she attributed that to the family having lived in Saudi Arabia.

    The Tribunal referred to [Ms E]’s Statutory Declaration and asked her when she knew about the property at [Address 1] where she was [working]. The Tribunal referred to paragraph 32 of the Statutory Declaration where in relation to the visit by the Departmental officers in February 2016, she stated “They asked a very straightforward question, is the house owned by my father-in-law, I replied yes.” The Tribunal asked if she knew at the time that the father-in-law had owned the property and despite repeated questions, she did not give a clear answer.  She stated that your family used that address but they were not the owners.  She said “whatever I said at that time was not true…”.  She said you were Rohingyas and had to use the cousin’s address.  The Tribunal asked her to explain the reasons for giving the officers incorrect details.  She said she had to say the incorrect things even to her relatives and colleagues because she could not tell them that you were Rohyngas.  The Tribunal will consider her explanations.

    [Ms E] also stated that at the time she spoke with the officers, she knew this was untrue.  Later she stated that at the time that is what she thought; she stated that she thought that was correct when she was asked the question.  She stated that she knew that what she said at the time was untrue. She stated that a few days before the Departmental officer’s interview, she had asked you about the information given by the matchmaker in relation to the house and you told her that the information was not correct and asked her not to tell anyone.

    The Tribunal referred to what appears to be contradictory claims in paragraphs 36 and 38 of [Ms E]’s Statutory Declaration.  At paragraph 36, she stated “After the interview with the Department officers at the [workplace], I asked my husband about it and he told that the house was owned by [Ms G] and her [brother]…”   At paragraph 38, she stated “Before the Department officers spoke with me at the [workplace], the question about the ownership of the house where I worked was never raised between me and my husband. Except for what [Mr F] had initially said about the property the topic had not been discussed with me at all.” She stated “it’s true…”.  The Tribunal will consider her explanations.

    The Tribunal is of the view that the above show significant inconsistencies in [Ms E]’s evidence.  Further, the Tribunal had concerns about the manner with which [Ms E] gave her evidence; she required substantial prompting to answer direct questions and overall her answers did not respond to the questions asked. 

    The Tribunal considers this information to be relevant as it gives rise to credibility concerns about [Ms E] which could lead the Tribunal to give limited or no weight to her evidence.

    Response to the s.359A letter

    Statutory Declaration of [Ms E], dated 10 October 2019

12. In the Statutory Declaration, [Ms E] stated:

    i)   Prior to her marriage to the applicant she did not know that he was a Bangladeshi citizen or that he was not a Chittagonian, nor that his father was not the owner of the property. She believed the matchmaker. Subsequent to the marriage in August 2012, they were only able to live together for a very short period of time after which the applicant returned to Australia in September. During that time, they were busy visiting friends, going to restaurants, shopping, sightseeing, and so on. She only took two weeks off work and she was still attending university. The question of where the applicant’s home village was located was never discussed.

    ii)     Subsequent to the applicant’s return to Australia, they were talking on the phone about their happiness together, about jobs, about studies, etc. After he returned to Australia, the applicant was in [a location] for many months in 2013 and communication was very expensive. Sometimes she complained about the short conversations of about 5 to seven minutes.

    iii)   In the course of the Tribunal hearing, she gave different accounts about when she discovered that he was Rohingya. She recalls saying words to the effect “Kichu din pore” which means after some days. However she did not literally mean after a few days, because in 2012 they were on a honeymoon at that time and the question never came up. The Tribunal then asked her about the number of days and she stated it was it about a year. On reflection, she could not state exactly when it was – she thought it was about 6 to 7 months after their marriage that she had asked her husband about his home village. She did not keep a journal and she cannot recall exactly when it was. Prior to the Tribunal’s hearing, she had not turned her mind to the question of when that had occurred exactly. In their culture, people have family ties to their ancestral villages so for her it was important to know which village her husband was from ancestrally. Sometime after he went back to Australia, she asked him about the village and then he told her he was from Burma. She then understood that he was Rohingya. She realised that there is a lot of stigma associated with being identified as Rohingya in Bangladesh and that if known, her family would have objected to the marriage. She knew that he is a good person and it did not matter where he came from. She realised that he is not a national of Bangladesh.

    iv)   It did not come to her mind at that time whether the property was not owned by her father-in-law. She subsequently realised that her husband and his family were not living in the property when she came to the conclusion herself of the information given by the matchmaker was incorrect. She confirmed that the property did not belong to the family she had no interest in asking about the property any further and she did not marry for the property. It would have been shameful to ask her husband about the property ownership.

    v)    When the Australian officers came to [her workplace] in 2016 and asked to speak with her, the interview was not held in a private room. The [superior] was also present in the room and the conversation could have been heard clearly. The [superior] had attended her wedding and she had told him at the wedding that her father-in-law owned the property so when she was interviewed by the officers, she found herself trapped in a situation. They asked her about her husband and where he was born and she told them he was born in Burma.

    vi)   In the course of the Tribunal hearing, she at first told the Tribunal that her husband told her about the property not belonging to the father a few days before the interview but when the Tribunal read out what she had said in the Statutory Declaration, she stated that the conversation occurred after the interview, then she stated that it was true. When the Tribunal asked her which part is true she answered “Actually maybe I am confused about the timing if you ask me about the timing I cannot give you a specific timing, however may be that conversation happened after the interview when I asked him, what are the problems about this ownership or what other things that I need to know”. That was the truthful conversation she had with her husband after the site visit in February 2016.

    vii)  She was stressed because she was asked if she had made untruthful statements to the Australian officers and she is sorry; she did tell “an untruth to the Australian officers and I am very sorry but I did tell an untruth to the Australian site visit officers because I was trapped and shamed in front of the [superior], and did not see how I could say anything else… During the Tribunal hearing I got confused about how I came to know at that point in time (at the time of the site visit) about the property not belonging to my late father-in-law)”. She confirms that after the site visit, she raised the issue with her husband because it became an important question from the Australian government and was something that she needed to know about. After the site visit, her husband said words to the effect “my cousins have ownership of that property, we do not. But for Bangladeshi passports we have to have a permanent address and that’s why we use that address for the Bangladeshi passports”. As far as she can remember, her husband told her not to discuss with others about being of Rohingya background, or about the property being used for the purposes of the passport. He wanted her to say that he is from Australia. She discovered his ethnicity 6 to 7 months after their marriage.

    viii) She is Chittagonian and this is her mother tongue. However her whole education was in the Bangla language. Since she met her husband, they conversed in that language. She did not know prior to their marriage that her husband came to Australia on a student visa and later got permanent residence. She never asked to see his passport prior to their marriage and this question never came to mind. Prior to their marriage, her husband did not say that he was a refugee in Australia and he did not say that he was Rohingya and he did not tell her that he had used a false Bangladeshi passport. They were in love and they spoke in the Bangla language. They did not discuss the passport or nationality and she just assumed he was Bangladeshi.

    ix)   In Bangladesh there are many ethnic groups and languages. She assumed that he was Bangladeshi who grew up overseas. He looks Chittagonian. She just wanted to marry a Bangladeshi guy who was good by heart and educated. She was not interested in material things.  She just thought that as long as he has a good job, they can manage. She never had a passport until 2015. She lived a simple life in Bangladesh. Only her brother and sister travelled out of Bangladesh. She had no idea about her husband’s visa and migration status in Bangladesh when she got married.

    Statutory Declaration of the applicant dated 10 October 2019

13. In the Statutory Declaration, the applicant stated:    

    i)   He confirms his evidence that he did not tell his wife or her family that he was Rohingya or stateless prior to getting married. He did not tell her that they were refugees and that he had used fraudulent Bangladeshi documents. Prior to their marriage, he did not tell her family that he was a refugee in Australia.

    ii)     There is substantial stigma associated with being Rohingya in Bangladesh and it was not even practicable for Bangladeshis to marry Rohingya at the time. In fact since 2014, this has become illegal. Had he disclosed those matters to her family prior to the marriage, her family would have objected.

    iii)   Sometime after his return to Australia subsequent to the marriage, his wife asked him about his ancestral village and he told her then that he was from Burma. In relation to the property, he never said that his father owned the property.

    iv)   His wife never asked him about the property until after she was visited by the Australian officers in February 2016. When she told him what happened and what she was told by the matchmaker, he told her that that information was incorrect. He asked her not to talk about all details to other people.

    Submissions of 14 October 2019

123.   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.[78]

[78] ‘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.

124.   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.[79] According to the cables:

[79] ‘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.

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.[80].

[80] ‘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.

SUMMARY

125.   The Tribunal is satisfied that country information before the Tribunal strongly suggests that laws in Bangladesh (and Burma) do not provide Rohingya with the means to gain any form of citizenship and that they are legally stateless.[81]  The cumulative weight of country information before the Tribunal, which it accepts, indicates that there is no ‘legal’ pathway for Rohingya to obtain Bangladeshi passports. Whilst some Rohingya, in the past, have succeeded in obtaining Bangladeshi passports, this has not been through legal means or legitimate entitlements. On the evidence, the Tribunal is satisfied that the applicant is a Rohingya born in Myanmar to Rohingya parents, the Tribunal finds that the Bangladeshi passport the applicant travelled to Australia on is not a legitimate passport, obtained through legal means. The above information was consistent with the evidence of the applicant.  

[81] 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;

126.   The Tribunal accepts the evidence that the applicant and his family departed Myanmar for Bangladesh and subsequently travelled to Saudi Arabia where they remained for many years.  The Tribunal accepts that it is plausible that the family owns property in Bangladesh but this is consistent with country information and is not in itself conclusive evidence of nationality. 

127.   In consideration of the evidence in totality, the Tribunal finds that the applicant is not a Bangladesh citizen and that he is stateless, as claimed. The Tribunal finds that the information he provided in his application for a protection visa and his statutory declaration in this regard, is correct.

128.   For these reasons, 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

129.   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.

Antoinette Younes

Senior Member

ATTACHMENT 1 – List of Relevant Documents

·Apology and forfeiture of Fake Passports - [Ms A] to Consul General of Bangladesh in [City 1].

·Evidence of the Marriage of [the applicant] and [Ms E] in 2012.

·The applicant provided a number of documents in support including letter from the Burmese Rohingya Community in Australia dated [in 2010] referring to the family as being stateless Rohingyas and KSA Introduction Card for Myanmar.

·Identity Documents including Titre de Voyage with Bangladeshi visas showing the applicant’s nationality as “Burmese (folio 16)…Australian”.

·Evidence of a High School Education in Burma - [Mr C] (applicant’s father).

·Evidence of St Johns Ambulance First Aid Course - [Mr J].

·Marriage Certificate for [Mr C] (applicant’s father) and [Ms A].

·Evidence of Bachelor’s degree from [University 1] – [Mr C].

·Submission regarding the issuing of Bangladeshi Citizenship to Rohingya refugees.

·Bangladesh Ministry of Foreign Affairs Strategy Paper 2014.

·Reference from Burmese Rohingya Community in Australia.

·Identity Documents – [Ms A].

·Submission in response to the Notice of Intention to Consider Cancellation - [the applicant].

·Report on the 1978-79 Bangladesh Refugee Relief Operation – UNHCR.

·Further Submission on the treatment of Rohingya by Bangladesh in 1978.

·Amendment to Earlier Submission correcting applicant’s list of countries of residence (6 August 2018) (76)

·Evidence of Australian Citizenship of daughter of the applicant – [name deleted] (DOB: [date]).

·Submission suggesting that the Notice of Intention to Consider Cancellation was not a valid exercise of powers under section 107.

·SBS News Article: ‘Father -of-seven with Australian passport to be deported.

·Submission - Passport not be considered proof of citizenship.

·Applicant e-mail to Department on receipt of Decision Record.

·Handwritten Note regarding the Bangladeshi Passports of the applicant and his family.

Tribunal File

·Cancellation Decision.

·Bangladesh Passport - [Ms E].

·Titre De Voyage - [the applicant].

·Documents relating to Fee Reduction Request and Payment.

·Release of Documents under FOI.

·Decision Record - Revocation of Cancellation - [Ms B].

·Submission dated 13 September 2019  - citizenship of applicant’s father.

·Statutory Declaration - [Ms E].

·Bangladeshi Passports - [Mr C] and [Ms A].

·Submission dated 16 September 2019 - Department’s Identity Assessment.

·Amended Submission dated 16 September 2019.

·Iqama issued by Saudi Arabia for [Ms A] and her children.

·New South Wales Birth Certificate – [daughter’s name].

·Family Photograph of applicant and his parents.

·Bangladesh Tourist Visa Extension Application - [the applicant].

·Burmese Census Household List - Dated [date]/09/1966.

·Identity Card - [specified].

·Birth Certificate - [Ms A].

·Birth Certificate - [the applicant].

·Bangladesh Tourist Visa Extension Application - [the applicant].

·NAATI Accreditation - [Mr D].

·RRT Decision Record - [Mr D].

·Birth Certificate - [the applicant].

·Identity Card - [specified].

·Apology and forfeiture of Fake Passports - [Ms A] to Consul General of Bangladesh in [City 1] ([2010]).

·References from Rohingya Communities in Australia and Saudi Arabia.

·Burmese High School Qualification – [Mr C].

·Evidence of Bachelor’s degree from [University 1] – [Mr C].

·Marriage Certificate for [Mr C] (applicant’s father) and [Ms A].

·Birth Certificate - [Ms A].

·Burmese Residential Building Registration Form.

·Request for Rohingya Interpreter.

·Response to request for Rohingya Interpreter.

·Invitation to Resumption of Adjourned Hearing.

·Request to seek evidence from [Mr D].

·University Registration Card – [Mr C].

·[Country 1] Police Certificate - [Mr C].

·Myanmar Passport - [Mr C].

·Evidence of St Johns Ambulance First Aid Course - [Mr J].

·Family Photograph of applicant and his parents.

·Evidence of Australian Citizenship of daughter of the applicant – [name deleted] (DOB: [date]).

·[Qualification] from [University 1] – [Mr C].

·Marriage Certificate for [Mr C] and [Ms A].

·Identity Card - [specified].

·Birth Certificate - [the applicant].

·Untranslated Document - Purported to be Birth Certificate for [Ms A].

·Saudi Iqama (Introduction Card) - [Ms A] and children.

·Identity Documents (includes Bangladesh Visa) - [the applicant].

·Temporary Graduate Certificate   from [University 1] – [Mr C].

·University Registration Card – [Mr C].

·List of Household Residents 03/11/1992 - [Ms H].

·UNHCR Refugee Status Documentation – [specified].

·Screenshots of Text Messages - Evidence of a destroyed house.

·Household List 11/04/2003 – [Ms H].

·UNHCR documents.

·Family Attestation.

·Country information.

·Multiple submissions.

ATTACHMENT 2 – Migration Act 1958 (extracts)

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)     purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101Visa applications to be correct

A non‑citizen must fill in or complete his or her application form in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)     giving particulars of the possible non‑compliance; and

(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)      stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)      requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

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.