1923821 (Refugee)

[2021] AATA 4150

1923821 (Refugee) [2021] AATA 4150 (20 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1923821

COUNTRY OF REFERENCE:                   Stateless

MEMBER:F. Simmons

DATE:20 July 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 20 July 2021 at 8:40pm

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – incorrect information in application – race – Rohingya – religion – Muslim – applicants’ possession of Pakistani identity documents – ability of Rohingya to obtain Pakistani citizenship – prevalence of document fraud in Pakistan – applicant’s Rohingya language fluency – genuine documents fraudulently obtained – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140, 375A, 438

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Kumar v MIMA [1999] FCA 156
MIEA v Wu Shan Liang (1996) 185 CLR 259
SCAN v MIMIA [2002] FMCA 129
Zhao v Minister for Immigration [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 431 and 440 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 866 (Protection) 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 when she provided information in her protection application and to the Refugee Review Tribunal that she was stateless. 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. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. 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

   Evidence before the tribunal

5. This matter was constituted to the Tribunal in March 2021. The Tribunal has before it the Departmental file relating to the cancellation of the applicant’s visa. On 9 September 2019 the delegate sought to restrict the disclosure of certain material by issuing a non-disclosure certificates purportedly under s.375A of the Act. However, as this case concerns the cancellation of a Subclass 866 visa the power to issue a non-disclosure certificate arises under s.438 of the Act. The Tribunal finds that the certificate issued by the Department 9 September 2019 is invalid as it was issued under the wrong provision and has treated the information in the ordinary way.[1]

   Background

   [1] On 13 March 2020 before this matter was constituted to the Tribunal an FOI officer responded to an FOI request made by the applicant. 

   Application for a protection visa

6. The applicant and her three children arrived in Australia [in] September 2013 and lodged a protection visa application on 11 October 2013. The applicants claimed to be stateless Rohinya Muslims from Myanmar who fear returning because of their ethnicity and religion. They claimed to have been living temporarily in [Country 1] with family and to have travelled to Australia holding fraudulently obtained Pakistani passports. The applicant and her three children travelled to Australia in the company of her husband, [Mr A], who also entered Australia on a Pakistani passport [in] September 2013 and departed Australia in October 2013. Movement records indicate that [Mr A] had previously travelled to Australia holding a Pakistani passport in 1998. 

7. The applicant and her three children applied for protection visas. They claimed that they do not have citizenship of Myanmar (Burma). They fear returning to Myanmar because they will be targeted by the Burmese government because they are Rohingya and Muslims. 

8. The applicant said that she was born in Maungdaw, Rakhine State in [year] but moved to Yangon when she was approximately ten years old. She was home schooled in Maungdaw but is illiterate.  She married her husband in Yangon in 1991 and together they had three children, a daughter born in Yangon in [year], a daughter born in Yangon in [year]and a son born in Yangon in [year]. Her husband (and children’s father) had a business in Yangon but it was burnt down in riots in 2007 and he fled to [City 1, in Country 1].  He established a successful business in [City 1] and supported the family, including paying for the children to attend a private international school.  In March 2013 there were riots in which Muslims were attacked and as a result the applicants fled Myanmar, crossing illegally into [Country 1].  They obtained fraudulent Pakistani passports and travelled to Australia. 

9. The delegate refused to grant the visas on 12 March 2014. The applicant applied to the Tribunal for review and appeared before the Tribunal on 16 October 2014 to give evidence and present arguments. The Tribunal also received oral and written evidence from [Mr B] and [Mr C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Rohingya and English languages. The current Tribunal has a copy of the transcript of that appearance as well as the statutory declarations dated 30 September 2014.

10. The Tribunal found that the applicant is from Maungdaw Township in Rakhine State. The Tribunal found that she only speaks Rohingya and is a member of the Rohingya minority.  The Tribunal noted that the delegate found that there was insufficient information to make a finding of fact on whether she is a citizen of Myanmar. The Tribunal referred to country information that the 1982 Burmese citizenship law classifies citizens according to ethnicity and does not name Rohingya as a group owed citizenship by ethnicity.[2] The 1982 law excludes Rohingya from the list of 135 recognised minorities in the country. In 2013, an advisory panel to Burma’s government recommended that no reform be made to the 1982 law to include Rohingyas, referred to in their report as ‘Bengalis’.[3]  

    [2] Case number 1405459.

    [3] Tha, K P 2013, ‘Use Controversial Citizenship Law to Assess Rohingyas’ Rights: Govt Report’, The Irrawaddy, 29 April <

11. The Tribunal concluded that either the applicant did not have Burmese citizenship and is stateless or she was only able to obtain citizenship by lying about her ethnicity.  In either case the Tribunal considered that if she was to return to Myanmar, there was a significant likelihood that the Burmese authorities would realise that she is Rohingya and therefore is not considered to be a Burmese citizen.  On the basis of the country information before it, the Tribunal accepts the applicant’s evidence that her husband has been registered by the UNHCR in [Country 1] but has no legal rights there. 

12. The Tribunal found that upon return to Myanmar the applicant would be stateless and assessed her case and the case of her children on the basis that they were stateless. The Tribunal found the applicant was owed protection obligations as a refugee. While her three children did not make claims of their own, the Tribunal found these claims arose on the facts as they would face some of the same difficulties as their mother, including being stateless and discriminated against as Rohingya. While birth certificates showed that the three children were born in Yangon, the Tribunal found if they were considered to be stateless they would nevertheless be either detained or relocated to an IDP camp within Rakhine State. The Tribunal therefore found all the applicants were owed protection as refugees.

13. In 2015 the Department received an anonymous allegation that the applicants are genuine citizens of Pakistan. The Department file contains various documents that were submitted in relation to an offshore Visitor Visa Application, including the biodata pages of the passports that they used to travel to Australia:

    a.The [first applicant]’s Pakistani Passport ([Number 1]) issued [2013] in [City 1]. The passport notes her place of birth as [City 2, Country 2] and NIC number as [NIC 1].

    b.The [second applicant]’s Pakistani Passport ([Number 2]) issued [2013] in [City 1]. The passport notes her place of birth as [City 3, Country 3] and NIC number as [NIC 2].

    c.The [third applicant]’s Pakistani Passport ([Number 3]) issued [2013] in [City 1]. The passport notes her place of birth as [City 3, Country 3] and NIC number as [NIC 3].

    d.The [fourth applicant]’s Pakistani Passport ([Number 4]) issued [2013] in [City 1]. The passport notes his place of birth as [City 1, Country 1] and NIC number as [NIC 4].

    e.The applicant’s husband, [Mr A]’s Pakistani Passport issued [2010] valid until [2015] ([Passport Number 5]). The passport indicates the passport holder obtained three visas to enter Myanmar in 2012, a visa to enter [Country 2] in 2013. The passport states [Mr A]’s place of birth as Karachi, Pakistan and his NIC number as [NIC 5].

14. The file also contains two rental agreements entered into by [Mr A] in [Country 1], the first is dated 11 May 2009 and the second is dated 1 April 2011.

15. On 11 January 2017, the applicant responded to an invitation to comment on adverse information issued by the Department by stating that she and her family are Rohingya from Myanmar, and they used Pakistani passports to obtain visas that incorrectly stated their places of birth.

16. In support of her claimed identity, the applicant provided identity documents (and translations) for her husband, [Mr A] and his parents, including the Myanmar birth certificate of [Mr A]’s birth certificate; The Burma Identity card of the applicant’s mother in law, [named] issued [1953]; the Burma Identity card dated [1957] and Burma [Occupation 1] identity card of the applicant’s father in law, [Mr D]; and an extract of the marriage record of [Mr A] and [the first applicant] in Tamwe, Myanmar and an accredited translation dated 28 January 1991. The certificate states [Mr A]’s fathers name as [Mr D].

17. The applicant also provided: a letter of support from the [Office Bearer 1] of [Rohingya Organisation 1] in Australia dated [in] January 2017 which indicates that the applicant is Rohingya violations; and a letter of Support from [Mr E], [Office Bearer 2] of [Rohingya Organisation 2] [in Country 4] dated [in] January 2017 confirming that the applicants, and the applicant’s husband is Rohingya.

18. The applicant was granted a protection visa on 6 October 2017.

19. On 4 June 2019, the applicant was sent a notice of intention to cancel her visa. The NOICC  referred to the fact that the applicant entered Australia on a Pakistani passport [Passport Number 1]. This passport notes that a previous Pakistani passport [Passport Number 6] was issued to her in [City 1] [in] 2008 and that she was born in [City 2, Country 2] and contains entry stamps for [Country 1]. The above-mentioned Pakistani passport also details her Pakistani Computerised National Identity Card Citizenship (CNIC) number [NIC 1]. CNIC is the most common identity card issued to adult citizens of Pakistan and is issued by the National Database and Registration Authority (NADRA). Attached to each CNIC is a 13-digit identification number. This number is required to obtain official documents and services such as a driver licence, bank account, passport and mobile phone connection. An online check of the CNIC number [NIC 1] was completed by the Australian High Commission in Islamabad and is said to confirm that the applicant is a Pakistani citizen. The Pakistani passport also details her husband's name as [Mr A].

20. The NOICC also refers to the fact that on 19 July 2018 [Mr A] (DOB: [Date 1]) lodged an application for a Partner (subclass 309) visa sponsored by the applicant. According to the partner visa application, [Mr A] was born on [Date 1] in Karachi, Pakistan and is a citizen of Pakistan who usually resides in [City 1], [Country 1]. [Mr A] and the applicant married in Rangoon on 28 January 1991. In the application [Mr A] declared that he gained his Pakistani citizenship on [Date 1] and that the applicant and his children are citizens of Pakistan and provided a copy of his Pakistani passport.

21. The NOICC alleged that the applicant was a Pakistani citizen.

    Relevant law

22. 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.

23. 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.

24. 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?

25. 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. The non-compliance identified and particularised in the s.107 notice was non-compliance with section 101(b) with respect to the information she provided in her protection visa application in which she stated.

26. First, at question 21 of Part C of Form 866 the applicant was asked about her current citizenship (if different to at birth)’ and she answered ‘Stateless’. The delegate considered this answer to be incorrect as she appears to be a documented citizen of Pakistan and was so at the time of her protection visa application and grant. Verification checks undertaken by the Department confirm that the applicant is a citizen of Pakistan. Furthermore, she holds and has held a Pakistan passport which attests to her citizenship of Pakistan.

27. Second, at question 22 of Part C of Form 866, when asked whether she or any other citizenship was a national of any other country, the applicant ticked the box denoting ‘No’. The delegate considered this answer to be incorrect as she appears to be a documented citizen of Pakistan and was so at the time of her protection visa and grant. Verification checks undertaken by the Department confirm she is a citizen of Pakistan. Furthermore, she holds and has held passports from Pakistan which attest to her citizenship of Pakistan.

28. Third, at question 23 of Part C of Form 866, when asked whether she has a right to enter or reside in, whether temporarily or permanently, any country(s) other than your  country(s) of nationality or your former country of habitual residence, the applicant ticked the box denoting No. The delegate considered this answer to be incorrect as she appears to be a documented citizen of Pakistan and was so at the time of her protection visa application and grant. Verification checks undertaken by the Department confirm that she is a citizen of Pakistan. Furthermore, she holds and has held passports from Pakistan which attest to her citizenship of Pakistan. Therefore, she would have the right to enter and reside permanently in Pakistan.

29. Question 24 of Part C for Form 866, when asked if she is stateless, how, and why did she become stateless, the applicant answered, ‘By born we are stateless as are Rohingya Muslims born in Arakan, Myanmar’. The delegate considered this answer to be incorrect as the applicant appears to be a documented citizen of Pakistan and was so at the time of her protection visa application and grant. Verification checks undertaken by the Department confirmed that she is a citizen of Pakistan. Furthermore, she holds and has held passports from Pakistan which attest to her citizenship of Pakistan.

    Response to NOICC

30. On 15 June 2019, the applicant maintained she would face persecution as a stateless Rohingya Muslim and denied that she or her husband or her children were Pakistani citizens. The applicant provided a birth certificate for her husband and submitted that he was born in Myanmar to parents who were also born in Myanmar.

31. The applicant provided a letter of support from [Mr E], [Office Bearer 2] of [Rohingya Organisation 2] dated [in] June 2019. This letter confirms the applicant is Rohingya, and that the applicant’s husband is also Rohingya.  There is also a letter of support from [Mr F], [Office Bearer 1] of [Rohingya Organisation 1] in Australia dated [in] June 2019 which states that [Mr A] is a Rohingya Muslim born in Myanmar and contains 47 signatures of support for [Mr A] and the applicants.

32. On 17 June 2019, the applicant provided the following documents: a letter from [the named Office Bearer 3] of [Rohingya Organisation 3] undated. The letter certifies that the applicant’s husband is a Rohingya born in Myanmar married to the applicant and has three children; a letter from [the named Office Bearer 2] of [Rohingya Organisation 4] in [Country 5] dated 14 June 2019 which states that the applicant’s husband is a Rohingya born in Myanmar married to the applicant and has three children; and a letter from [the named Office Bearer 3] of [Rohingya Organisation 5] (undated) which indicates  that the applicants are Rohingya Muslims, and that [Mr A] has assisted Rohingya in [Country 6] by giving them ‘food, pumping pipe, clothes etc also he has spent his valuable times for us’. The letter also contains signatures of support.

33. The delegate concluded that the applicant was a Pakistani citizen. The delegate relied on the fact that the Australian authorities had verified of the applicant’s Pakistani Computerised National Identity Card (CNIC) through an online verification process. The results of online verification checks indicated that the CNICs held by the applicant and her husband were valid and this led the delegate to conclude that the applicant and her husband were Pakistani citizens. Based on the verification of the applicant’s CNIC and the fact that her husband had declared that he  was born in Karachi in Pakistan in his partner visa application, which was lodged on 19 July 2018, the delegate did not accept that the applicants Pakistani passports were fraudulent. The delegate considered the applicant may be a Pakistani citizen by marriage and refers to section 10 of the Pakistani Citizenship Act 1951, which prescribes the conditions for granting Pakistani citizenship to foreign spouses of Pakistani men.

    The review application

    Evidence before the Tribunal

34. On 28 April 2021 the Tribunal invited the applicants to provide written submissions. On 24 May 2021, the Tribunal received a submission and the following documents:

    a.In a statutory declaration dated 24 May 2021 the applicant declares that she  is a stateless Rohingya. She was born in Rakhine state in Myanmar, and married her husband [Mr A] on 28 January 1991 in Yangon, Myanmar. She hid her identity and lived in fear as a Rohingya in Myanmar. Her family fled to [Country 1] and then to Australia, where they sought asylum. Since the cancellation of the family’s visas, she has been suffering depression and anxiety, which is exacerbated by her husband being overseas for 8 years. She and her husband are not Pakistani citizens, they have never been to Pakistan and the Pakistani passports were fraudulently obtained.

    b.A statutory declaration of [the third applicant], dated 24 May 2021, stating that she is a Rohingya Muslim, and is rendered stateless in her home country of Myanmar. Her father had to obtain documents fraudulently so that they could flee to Australia. Their family have never been to Pakistan, that they are not citizens of Pakistan, and that the Pakistani passports were fraudulently obtained.

    c.A statutory declaration of [Mr B] dated 24 May 2021 who states that he fled Myanmar and arrived in Australia in 1996, sought asylum in Australia, and is an Australian citizen. [Mr A] and [Mr B] have known each other since birth, as they were both born in [Village 1], and studied at the same school. [Mr B]’s paternal grandmother and [Mr A]’s paternal grandfather are biological brothers, he attended [Mr A] and [the first applicant]’s wedding, and prior to their arrival in Australia visited the family in Yangon, Myanmar. The declaration concludes that [Mr A] and [the first applicant] are Rohingya by birth and not citizens of Pakistan.

    d.A statement of [Mr A] dated 23 May 2021 stating that he is a Rohingya, born in [Village 1], Maungdaw Township, Rakhine (Arakan) State, Myanmar (Burma), is a Rohingya Muslim, was rendered stateless in his home country of Myanmar, and married his wife [the first applicant] on 28 January 1991 in Yangon, Myanmar. He had to hide being a Rohingya, and fled because of riots targeting Rohingya Muslims. He paid for a fraudulent Pakistani passport so he could stay in [Country 1]; it is common for Rohingyas to resort to this method to acquire travel documents. [Mr A] then paid an agent to assist his family to flee using fraudulent passports. His wife and children used the fraudulently obtained passports to travel to Australia, but they are not Pakistani citizens. Because of their Rohingya background neither he nor his wife could not have obtained Pakistani citizenship legally.

    e.A letter of support from [Mr F], [Office Bearer 1] of [Rohingya Organisation 1] in [Australia], dated 23 May 2021, confirming that the applicants are active members of the [organisation].

    f.Medical documentation from [a named doctor], dated 5 May 2021 and 29 April 2021, stating that [the first applicant] is suffering from anxiety and depression, has been the sole parent for her three young children for the past seven years as her husband is overseas and has chronic pain.

    g.An email to NADRA (National Database and Registration Authority), which appears to be in draft form, by the registered migration agent dated 21January 2020, stating that he is representing the applicants in an immigration matter and that their Pakistani passports had been fraudulently acquired, that they have never travelled to Pakistan and have no connection to Pakistan that would warrant citizenship. The letter requests that NADRA investigate the circumstances surrounding how the passports were obtained and provide information about the legal status of passport holders. Screenshots of the “Complaint Management System” from NADRA of Pakistan indicate that a support ticket has been created and representatives will be in touch.

    h.A letter from [Mr A], addressed to NADRA, dated 14 April 2021, which states that the family acquired their passports and national identity cards through an agent because their lives were in danger in Burma and they had been stripped of their citizenship rights by the Burmese government due to being Rohingya. The letter states that he only travelled to Pakistan once in 2010 when he obtained Pakistani passports, and his family obtained Pakistani passports in 2013, in [Country 1], through an agent.

1. On 28 May 2021,the applicants submitted further documents including:

   a.A statement by [Ms G], dated 27 May 2021, stating that she is the biological sister of [Mr A], born in [Village 1], Maungdaw Township, Rakhine (Arakan) State, Myanmar (Burma).[4] [Ms G] states that they had to hide their identity and lived in fear of the authorities, and subsequently left Myanmar to live in [Country 2], where she currently lives with her family. [Ms G] states that she speaks to her brother on the phone, and she last saw him in 2020 when he came to visit a holy Mosque. [Mr A] recently asked her for her Burmese documents, and she provided to him a Burmese National Registration Card and other documents from the extended family. [Ms G] swears [Mr A] is not a citizen of Pakistan and provides contact information to give evidence.

   b.A statutory declaration of [Mr H], dated 27 May 2021, stating that he was born in [Village 2], Maungdaw Township, Rakhine (Arakan) State, Myanmar (Burma), and fled from there in 2004, seeking asylum in Australia. [Mr H] states that he has known [Mr A] since childhood, they went to the same school, his mother is from the same village as [Mr A] ([Village 1]), he visited his mother’s village and saw the applicant [Mr A] there. [Mr H] also states that he knows the applicant’s father’s [Occupation 1] [Mr D]. [Mr H] concludes the statement by affirming that he is certain that [Mr A] is Rohingya by birth and offers a phone number to give oral submissions at hearing.

   c.A Statement of [Mr I], dated 27 May 2021, stating that he is a Rohingya born in [Village 1], Maungdaw Township, Rakhine (Arakan) State, Myanmar (Burma), is stateless, and had to hide his identity in Myanmar and lived in fear of the Government. [Mr I] states that [Mr A] is his half-brother, their father was [Mr J], and the last time they met was in Maungdaw in 2007. [Mr I] fled Myanmar and went to Bangladesh, he currently resides in Kutupalong Refugee Camp, he confirms that [Mr A] is a Rohingya by birth, and is not a citizen of Pakistan. The tribunal was provided with a photocopy of a document entitled Rohingya People Registration dated 14 September 2017 in the name of [Mr I] as well as UNHCR identification card for this person dated 26 February 2019.

   d.A statement of [Ms K], dated 27 May 2021, stating that [Ms K] is a Rohingya Muslim, stateless and always had to hide her identity and live in fear of the authorities. [Ms K] states that [Mr A] is her maternal cousin, they both grew up together in Myanmar and used to visit each other.  [Mr J] is [Mr A]’s father, and he fled in 2007 to [City 1]. [Ms K] further states that the applicant, [Mr A], asked her for her Rohingya documents, and she supplied her old Burmese National Registration Card. An English translation of a Union of Myanmar Identification Card of [Ms K] is attached. [Ms K] states that [Mr A] is a Rohingya by birth, is not a citizen of Pakistan and that [Ms K] can be contacted to give evidence via telephone.

   [4] The documentation provided includes an English translation of [Ms G]’s (biological sister of [Mr A]) Burmese identification card

2. The applicant’s representative submitted that further documents could not be provided because most documents were with [Mr A]’s father, who passed away in 2012. This house was burnt to the ground during the genocide in 2017. Variations in the spellings of [Mr A]’s name are due to the Burmese authorities tending to vary Burmese Muslim names.

3. The applicants appeared before the Tribunal on 29 May 2021 to give evidence and present arguments. The Tribunal has considered post hearing submissions dated 3 June and 16 July 2021. The Tribunal also received oral evidence from [Mr B] and Mr [Mr A]. This evidence is briefly considered below and, where relevant, is considered further below. The hearing was conducted with the assistance of an interpreter in the Rohingya and English languages. The applicants were represented in relation to the review by their registered migration agent. Where relevant the evidence of the applicant and the two witnesses is briefly summarised below and considered in the analysis and findings.

4. The Tribunal considers the evidence the applicant and her husband provided to the Tribunal is consistent with the applicant’s claim that she and her husband are members of the ethnic Rohingya minority who were born in Rakhine state. The applicant told the Tribunal she was born on [date] and she is one of [number] sisters, two of whom have now died. She has [number] brothers, one of whom has passed away. Her parents died after her marriage. She told the Tribunal she could recall little of the village in which she grew up because of her depression. She recalled her mother was scared and they ran away from their village. She could remember little about these times. Some of her surviving siblings are now in [Country 2]. She did not know on what basis they had a right to reside in [Country 2]; there were many people living there as refugees. The applicant gave evidence her three children were born in a hospital in Yangon and that, before they travelled to Australia, they went to [School 1] in Yangon in Myanmar.

5. The applicant gave evidence about her travel history. She has travelled overseas twice since obtaining a protection visa in Australia: on the first occasion she went to [Country 2] and [City 1 in Country 1] and on this occasion her husband also travelled to [Country 2] and he used a Pakistani passport to do so; the second time, she travelled to [City 1] to see her husband. Before she travelled to Australia, she had travelled from Yangon to [Country 1], but she denied having travelled to Pakistan or [Country 2]. When asked whether she had ever seen her brothers in [Country 2], she said no. She agreed her brothers were now in [Country 2] but said she had never seen them there as there was no time. She obtained the Pakistani passport she used to travel to Australia just before her departure from [Country 1] through an agent; her husband arranged this. She told the Tribunal she never had a passport on an earlier occasion; the first time she used her Pakistani passport was to travel to Australia.

6. The applicant told the tribunal he travelled to Australia with her husband, the agent and her children. Her husband remained in Australia for a month and because he had a business in [Country 1] and had to pay money to the agent. She didn’t know why her Pakistani passport said it was a replacement passport, this was something the agent may have done, or her husband might know about. She did not know why her husband travelled to Australia in 1998 or when he first obtained a Pakistani passport. When they lived in Yangon, her husband travelled to [Country 1] for a [business]. The Tribunal referred to the complaint made to NADRA in 2020 and the applicant said she didn’t know what it was about but thought her lawyer or husband would know.  

7. The Tribunal took evidence from [Mr A], the husband of the applicant, by telephone. [Mr A] is currently resident in [Country 1] and he confirmed he was born in Arakan (Rakhine state) and gave detailed evidence about growing up in Rakhine state. When asked where he had previously travelled, he said he had travelled to [Country 3] and [Country 2]. He had travelled to Australia twice: the first time was in 1998, the second time was in 2013. The first time he travelled to Australia, he used a Pakistani passport to travel from [Country 1] to [Country 3] to Australia. He obtained the Pakistani passport through agents and he first acquired this passport in around 1991. He arranged to get a Pakistani passport for his wife when they had the difficulty in Burma shortly before travelling to Australia in around 2013. He currently has a Pakistani passport issued to him in 2010 and an agent arranged for it; they could not go legally to see Pakistani authorities, so the agent arranged it.  The agent obtained a national identity card, but he does not have a bank account or a house in Pakistan. When the Tribunal put to him that the Pakistani authorities considered the CNIC was valid, [Mr A] reiterated it was issued by an agent and they had never actually travelled to Pakistan.

8. [Mr A] confirmed that in 2020 their migration agent wrote to the Pakistani authorities saying that they were born in Burma but as yet there was no response. He used his Pakistani passport in 2020 when he travelled to [Country 2]. His siblings live in [Country 2] where they can obtain rolling residency permits. His wife has siblings. When asked where his wife’s siblings lived, he gave evidence he had heard her brothers lived in [Country 2], but he had not met them recently, maybe previously earlier. He had met one brother who had passed away. His three children were born in Burma in Yangon and went to an international school, [School 1]. He was born in Maungdaw. [Mr A] said his documents were with his father and his village burned in 2012. He had never registered with the UNHCR or had a refugee card in [Country 1]. He did not know why an anonymous person had alleged that his wife was born in [Country 2]. He stated the allegations were incorrect and he believed that the person must feel wronged by him to provide false allegations.

9. Mr [B] gave evidence about growing up with [Mr A] and [Mr A]’s family. The Tribunal found him to be a persuasive witness. He was aware that the applicants relied on Pakistani passports and explained this by reference to the plight of Rohingya. He explained he had travelled to Australia using a Bangladeshi passport and that such Rohingyas had no choice but to obtain a passport of another country to survive. He gave evidence that [Mr A]’s siblings were younger than him and that [Mr A]’s father was well-known as a [Occupation 1].

10. On 4 June 2021 and16 July 2021, the applicant submitted post hearing submissions, which the Tribunal has considered.  These submissions contained details of additional witnesses that were not able to make statements and attached identification documents of the applicant’s ([Mr A]) biological sister and maternal cousin. The applicant submitted that allegations made to the Department, including Facebook comments, were fabricated and should not be given any weight. The applicant speaks fluent Rohingya, this would only be possible to learn if the applicant was born in Rohingya as the language is completely oral. The applicant also submitted statements from [Mr A], [the first applicant], [the third applicant], [the second applicant] and [the fourth applicant] dated 3 June 2021, stating that their father was born in Myanmar and the family has never resided in Pakistan.

11. The applicant also submitted the Pakistani passport of [Mr A], [Number 5], issued in 2010 and expiring [in] 2015, and a page of a Pakistani passport stating that the date of validity is extended until [2020]. [Mr A] uses the passport, but the applicant and her children have not used Pakistani passports since they were granted in Australia. It was also submitted that NADRA has since been in contact with the applicant’s husband requesting further statements from the family, a video interview and fingerprints, in order to cancel their identify documents. This interview took place, their identities were confirmed, photographs taken, and NADRA confirmed they will be cancelling the family’s identity documents based on their Rohingya origins; the Pakistani passports will soon be cancelled, and the applicant and her children will not be able to travel to Pakistan.

    Analysis and findings

12. The Tribunal has considered whether there is non-compliance in the way described in the s.107 notice. The scope of the Tribunal’s review is restricted to whether there was non-compliance in the way described in the s.107 notice, rather than just deciding whether there was non-compliance. It is not open to the Tribunal to decide whether there was non-compliance other than that particularised in the s.107 notice.

13. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context. However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal). In Zhao v MIMA (Zhao), the Court stated:

    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 because 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.[5]

    [5] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

14. It follows that to cancel a person’s visa under s.109, the Tribunal must reach a positive state of satisfaction that the ground for cancellation exists. This must be a real state of satisfaction after considering all information available, not just because a decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[6] It has been stated that the principles in Briginshaw v Briginshaw[7] have no direct application in the context of administrative decision making.[8] However, where administrative action results in the cancellation of a permanent protection visa it is appropriate to have regard to:

    the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact][9]

    [6] Zhao v Minister for Immigration [2000] FCA 1235 at [25] and [32].

    [7] (1938) 60 CLR 336.

    [8] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10], and the cases discussed.

    [9] Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at [362].

15. In considering whether the grounds for cancellation are made out the issue the Tribunal must consider is whether there is non-compliance in the manner particularised in the s.107 notice. If the Tribunal decides that there was no non-compliance in the way described in the notice, then the cancellation power does not arise for consideration.

16. Underpinning the alleged instances of non-compliance in the NOICC is the allegation that the applicant incorrectly claimed that she was stateless when the true situation was that she was a citizen of Pakistan.

    The situation for Rohingya in Myanmar

17. The Rohingyas are an ethnic minority in Myanmar (Burma) and not officially recognised by the government as citizens. There are egregious human rights abuses against ethnic Rohingya Muslims within Rakhine State in Myanmar. According to Human Rights Watch, large-scale violent attacks against the Rohingya have occurred repeatedly since Myanmar’s independence, and Rohingya have migrated across the region in large numbers to escape violence. Violence against the Rohingya by security forces, including torture, indiscriminate killings, and mass rapes were reported during and following the 2012 and 2016 outbreaks. However, these occurred on an unprecedented scale in August 2017 when the security forces, and groups affiliated with the security forces, inflicted large-scale and extreme violence against the Rohingya in northern Rakhine State in 2017.

18. More than 700,000 Rohingya fled to Bangladesh following brutal attacks and killings by the Myanmar military in 2017. After attacks by the Arakan Rohingya Salvation Army (ARSA), an insurgent group based in Rakhine State, on a military base and security force outposts across northern Rakhine State, the Myanmar security forces responded with unlawful killings, torture, and sexual violence in what has been described as “campaign of ethnic cleansing and crimes against humanity against the ethnic Rohingya population in Rakhine State”.[10] In March 2020, the UN Special Rapporteur on the situation of human rights in Myanmar reported that crimes against humanity, war crimes and genocide may have been perpetrated against the Rohingya in northern Rakhine in 2016 and 2017. Médecins Sans Frontières estimated at least 9,400 people died in Rakhine State between 25 August and 24 September 2017, of which at least 6,700 were due to violence, including at least 730 children under the age of five. The UN Fact-Finding Mission found sufficient evidence of violence perpetrated by the Tatmadaw in northern Rakhine State to conclude that war crimes, crimes against humanity, and potentially, genocide occurred.[11]

    [10]  Human Rights Watch, World Report 2021: Myanmar, OHCHR | MyanmarFFM Independent International Fact-Finding Mission on Myanmar

19. In October 2020 Human Rights Watch (HRW)reported on the Myanmar’s mass detention of Rohingya in Rakhine State, describing the plight of more than 130,000 mostly Rohingya Muslims confined in camps in Central Rakhine that are effectively open air detention facilities where they are held arbitrarily and indefinitely, and denied freedom of movement, dignity, and access to employment and education, without adequate provision of food, water, health care, or sanitation. The circumstances are described as amounting to a regime of apartheid.[12] 

    [12] "An Open Prison without End" Myanmar's mass detention of Rohingya in Rakhine State, Human Rights Watch, 8 October 2020

20. In its most recent report on Myanmar[13] DFAT assesses that official and societal discrimination on the basis of ethnicity against Rohingya in Rakhine State is “high, endemic and severe”.[14] DFAT states that the Rohingya typically lack citizenship, face severe restrictions on their freedom of movement and are the subject of systemic extortion and harassment. The Rohingya have also been subjected to extreme violence by the security forces, and to a lesser extent, the ethnic Rakhine population. DFAT assesses there is a high risk of further violence for the remaining Rohingya in Rakhine State.

    [13] DFAT Country Report, Myanmar, April 2019, para 3.8

    [14] Ibid.

21. DFAT reports that there are a number of Rohingya living outside of Rakhine State, particularly in Yangon, where the applicant has said her children were born and went to school. The size of the Rohingya population outside Rakhine State is unclear. This is due to a lack of official statistics that recognise the Rohingya as an ethnic group, and also as some Rohingya in Yangon and other large cities in Myanmar reportedly conceal their ethnic identity, including through attempts to identify as Kaman or other Muslim groups. Anecdotal evidence suggests there are approximately 20,000 Rohingya living in Yangon and that some Rohingya in Yangon may be able to access citizenship documentation through registering as Burmese/Bamar Muslims, or paying bribes to officials to register as a Kaman.[15]  DFAT assesses that Rohingya who live outside of Rakhine state experience moderate levels of societal and official discrimination on a day-to-day basis and are officially denied citizenship rights.

    [15] DFAT Country Report, Myanmar April 2019; case number 1405459 and the country information discussed therein.

22. DFAT currently assesses that the Rohingya in Rakhine State continue to face a high risk of violence, predominantly from security forces. DFAT assesses there is a high risk of further violence for the remaining Rohingya in Rakhine State.

    Rohingya and Pakistani citizenship

23. Independent country information indicates that the Rohingya have not been able to access Pakistani citizenship.[16] Hundreds of thousands of Rohingya have fled to countries including Pakistan;[17] outside Myanmar, and “perhaps now Bangladesh, Pakistan is home to the highest concentration of Rohingya in the world”.[18] In Pakistan, Rohingya “do not qualify for citizenship under the 1951 Citizenship Act that (at least on paper) automatically granted citizenship to everyone who was born in the Subcontinent but was living in Pakistan at the time the law was enacted. Since Burma was separated from the Subcontinent under the Government of India Act 1935, Rohingya Muslims are ineligible from becoming Pakistani citizens under that provision.”[19] As such, most Rohingya living in [Pakistan] are believed to be stateless.

    [16]

    [17] Institution on Statelessness and Inclusion ‘The World’s Stateless 2020’ (March 2020) p.73, 145.

    [18] New York Times, ‘Far From Myanmar Violence, Rohingya in Pakistan Are Seething’ (12 September 2017) < The Herald, ‘The woes of Bengalis, Burmese and Iranians of Karachi’ (14 September 2017)

1. In the 1970s, General Muhammad Zia-ul-Haq, the then President of Pakistan, offered Rohingya resident permits in Pakistan, though not full citizenship.[20] Historically, small numbers of individual Rohingya have been able to obtain citizenship at various times, with reports suggesting this may have been tied to links with local political outfits.[21] The majority however appear no longer able to legally access National Identity Cards (NIC),[22] though many are reported to have obtained illegal Pakistani identification documents over the years, or to have illegally obtained documentation by taking advantage of corrupt officials.[23] Recent sources suggest that Rohingya continue to be able to bribe officials from the relevant government agency (the National Database and Registration Authority – NADRA), with the going rate varying from 5,000 rupees at the lower end of the spectrum, to 30,000-50,000 rupees at the upper end for computerised NICs.[24]

   [20] Rohingya Muslims who fled Burma decades ago did not escape persecution, The National (Abu Dhabi), 30 October 2012, 20190926144112; Karachi's Rohingyas strive for success instead of identity, Dawn, 25 August 2019, 20190926163420 however claims that Rohingya were granted citizenship along with other communities migrating from Bangladesh between 1971 and 1980.

   [21] The Rohingya of Pakistan, Ahmed Yusuf, 17 September 2017, CISEDB50AD5709

   [22] Rohingya in Pakistan living in 'abysmal' conditions, Deutsche Welle, 25 September 2017.

   [23] Rohingya in Pakistan living in 'abysmal' conditions, Deutsche Welle, 25 September 2017.

   [24] The woes of Bengalis, Burmese and Iranians of Karachi, Herald (Pakistan), 14 September 2017, 20190926165730; Rohingyas of Karachi struggle to deal with identity crisis, Dawn, 16 September 2017, 20190926141000. 50,000 rupees equals around 486 AUD as at 26 September 2019.

2. Rohingya Muslims have been unable to obtain refugee status in Pakistan and Pakistan is not a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention).[25] Some reports suggest that “the majority of early-arriving Rohingya generations were initially able to access identity cards, placing the number as high as 90 percent of people.[26] Reports indicate that in 2000, “teams from NADRA went door-to-door throughout households in the Rohingya quarter known as Burmi Colony in order to issue residents computerised identity cards”.[27] Since 2004 however and the computerisation of so-called ‘B-Forms’, Rohingya have typically struggled to provide the documents required to renew or confirm their citizenship status.[28] Rohingya in Karachi lacking ID cards have subsequently reported arbitrary arrests and harassment by police as an ongoing problem, typically in order to extract bribes.[29]  Those Rohingya who arrived before the formation of Bangladesh (1971, and formerly ‘East Pakistan’) and identify as ‘Bengalis’ are reported by some sources to have some chance of claiming Pakistani citizenship.[30]

   [25] The woes of Bengalis, Burmese and Iranians of Karachi, Herald (Pakistan), 14 September 2017.

   [26] The Rohingya of Pakistan, Ahmed Yusuf, 17 September 2017, CISEDB50AD5709  

   [27] The Rohingya of Pakistan, Ahmed Yusuf, 17 September 2017, CISEDB50AD5709  

   [28] The Rohingya of Pakistan, Ahmed Yusuf, 17 September 2017, CISEDB50AD5709; The woes of Bengalis, Burmese and Iranians of Karachi, Herald (Pakistan), 14 September 2017, 20190926165730  

   [29] Country Report on Human Rights Practices 2018 - Pakistan, US Department of State, 13 March 2019, Sect. 1d, 20190326095100; Rohingya in Pakistan living in 'abysmal' conditions, Deutsche Welle, 25 September 2017.  

   [30] The Rohingya of Pakistan, Ahmed Yusuf, 17 September 2017, CISEDB50AD5709; Dawn, ‘The Rohingya of Pakistan’ (17 September 2017) 

3. However, multiple reports indicate that Rohingya are unable to obtain Pakistani citizenship. For example, the following report, published in 2017, quotes a Rohingya refugee who has been living in Pakistan for more than four decade:

   Ali said it is hard to make a living in Pakistan. "I lived in Rakhine, escaped genocide there and made my way to Pakistan in the early 1970s through Bangladesh, which was then East Pakistan. One of my daughters, Zohra Khatoon, still lives in Dhaka, Bangladesh," Ali said.

   "I have been living in Pakistan for more than four decades but I have not been accepted as a Pakistani. For Pakistanis, we are Bengalis and refugees," Ali added.

   No proof of citizenship

   Rohingya living in Karachi's Arakan Abad area also told DW they could not apply for government jobs in Pakistan.

   "We don't possess the country's National Identity Card, hence we are ineligible for government jobs," a Pakistani Rohingya told DW.

   Many Rohingya and Bengalis, however, have obtained illegal identification documents in Pakistan.

   The Rohingya also face social discrimination in the South Asian country.[31]

   [31] Rohingya in Pakistan living in 'abysmal' conditions, Deutsche Welle, 25 September 2017.

4. It is notorious that national identity documentation is available through both official and unofficial means in Pakistan, and document fraud is ubiquitous.[32] Corruption is endemic, and fraudulently obtained genuine documents can be obtained with relative ease, including CNICs and passports.[33] Documentation, including National Identity Cards, CNICs, passports, and PoR Cards, are subject to counterfeiting and being obtained by fraudulent means; for example, one report estimated that up to 200,000 Afghan refugees have managed to obtain CNICs without being formally registered with the UNHCR.[34] A May 2018 report by the Danish National ID Centre recorded that ‘it is easy as well as almost risk-free to bribe officials at all levels of the Pakistani administration…according to a diplomatic source, there is, in general, little or no risk associated with acquiring forged documents or genuine documents with false content’ (emphasis added).[35] The most recent DFAT report about Pakistan states:

   Fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents. Types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such as degrees and transcripts, bank statements, agreements, references, and ownership deeds.

   …

   Fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records, bank records and other documents are common. Local sources report instances where influential people have paid news organisations to publish false stories.

   [32] ‘DFAT Country Report: Pakistan’, Department of Foreign Affairs and Trade, 20 February 2019, p. 71; Immigration and Refugee Board of Canada, ‘Pakistan: Prevalence and availability of fraudulent documents, including affidavits and court documents’ (13 January 2020)

   [33] DFAT Country Information Report Pakistan, 20 February 2019, 5.71.

   [34] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune,  3 April 2015, CX6A26A6E14660.

   [35]  ‘Pakistan: The Pakistani passport and its trustworthiness’, Danish National ID Centre, 30 May 2018, p. 4.

5. DFAT assesses that ‘government efforts have reduced the incidence of bribery and fraud but have not eliminated it’. For example, CNICs, SNICs and passports contain a number of security features, which have reduced the incidence of document fraud and the authorities can and do cancel fraudulent CNICs.[36] However, while NADRA can identify fraudulent documents: 

   … detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents. NADRA now issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still possible as long as hospitals retain the authority to issue birth certificates.[37]

   [36] DFAT Country Information Report Pakistan, 20 February 2019, 5.70.

   [37] DFAT Country Information Report Pakistan, 20 February 2019, 5.72.

   Is the applicant a Rohingya from Myanmar?

6. The determinative issue in the present case is whether the applicant is a Rohingya from Myanmar as claimed or a Pakistani citizen, as indicated on the Pakistani passport on which she entered Australia.

7. Before the Tribunal, the applicant maintained her claims to be a stateless person of Rohingya ethnicity. The Tribunal considers that the applicant’s evidence about this issue is consistent with that of her husband and supported by the documentary evidence before the Tribunal.  The Tribunal also accepts the verification of the applicant’s Rohingya identity and ethnicity contained in the support letters from [Rohingya Organisation 1] and in the numerous statutory declarations from people who know her and her husband as well as the oral evidence of [Mr B], which the Tribunal found credible. The Tribunal accepts the applicant used Rohingya language interpreters in her interview before the Department and hearing before the Tribunal and her indication of fluency in spoken Rohingya and Burmese in her application. There has never been any question that the applicant is, in fact, of Rohingya ethnicity and this finding is consistent with the applicant’s Rohingya language fluency.  

8. The Tribunal accepts that the applicant and her husband, [Mr A], were born in Rakhine state in Myanmar and are members of the persecuted Rohingya minority. In reaching this conclusion the Tribunal acknowledges that there were some inconsistencies in the evidence before the Tribunal between the applicant’s evidence to the Australian authorities about her family’s immigration history and the evidence that is now before the Tribunal. For instance, the Tribunal has concerns about the plausibility of the applicant’s evidence that she was not aware of her husband travelling to Pakistan (the evidence before the Tribunal is that he travelled to Pakistan in 2010) or her claim that she did not know her husband travelled to Australia on a Pakistani passport in 1998. To the first Tribunal, the applicant said her husband had been living in [Country 1] as a refugee and that he returned to [Country 1] from Australia in 2013 because of an arrangement with a people smuggler. However, the evidence of [Mr A] was that he had not registered with the UNHCR in [Country 1] and the evidence before the Tribunal indicates that he has travelled extensively using a Pakistani passport both before and after he travelled to Australia in 2013.

9. The Tribunal acknowledges that there is medical evidence that the applicant suffers from depression and that she has no formal education. The cancellation of her visa and her children’s visas has caused her great distress. The Tribunal is prepared to accept that she left matters relating to immigration to her husband and has considered the possibility that she knew little about her husband’s travels or his use of Pakistani passports. In recent correspondence [Mr A] said he obtained the Pakistani passport in 2010 in Pakistan whereas in a statement provided to the Tribunal the applicant stated that ‘Immigration has insinuated that my husband is a Pakistani citizen and I am one through my marriage to him. This is not true as we have never been to Pakistan’. In evidence to the Tribunal the applicant said that she ‘had never heard’ that her husband had travelled to Pakistan. The applicant, who married her husband in 1991,  also gave evidence to the first tribunal that she was unaware that her husband had travelled to Australia in 1998 holding a Pakistani passport and said to the current Tribunal she had no idea why he travelled to Australia at this time. She also claimed that she did not know when he first acquired a Pakistani passport.  The Tribunal considers the fact that the applicant’s husband travelled to Australia holding a Pakistani passport in 1998 is difficult to reconcile with the applicant’s claims, presented in her protection visa application, that her husband left Yangon in Myanmar in 2007.

10. The Tribunal considers that the applicant was either unaware of her husband’s travel history or provided deliberately incorrect information to the Australian authorities about this issue. However, while there are some aspects of the applicant’s evidence that raise questions about whether she has provided an entirely truthful account about the travel history of her family to the Australian authorities, the evidence supports the conclusion that she and her husband are members of the persecuted Rohingya minority and that they were both born in Rakhine state, Myanmar.  With respect to the question of whether the applicant has visited her siblings in [Country 2], the Tribunal found her evidence vague but acknowledges the submissions that her representative made about the difficulties that can occur when communicating with interpreters. While it may be that the applicants declared that they were Pakistani citizens in order to travel to [Country 2], such actions are explicable in the context of the family’s reliance on Pakistani passports after being rendered stateless by discriminatory laws and practices in Myanmar, which is their country of birth.

11. The applicant and her husband have denied the anonymous allegations made to the Department that allege that they are Pakistani citizens, that the applicant was born in [Country 2], and that their children were not born in Yangon as claimed. The Tribunal observes that there are various references to Facebook material on the Department file, but only limited Facebook material appears on the Departmental file. To the extent that the material concerns allegations that the applicants hold Pakistani passports, this is not disputed by the applicants. The Tribunal notes that [Country 2] does not provide citizenship to Rohingya refugees although they may reside in that country for many years.[38] To the extent that any Facebook material may casts doubt on claims that the applicants have never lived in Pakistan, the Tribunal considers the evidence is insufficient to conclude that the applicants have lived in Pakistan and, even if they had done so at some stage, this would not change the Tribunal’s conclusions that as Rohingya Muslims, the applicant, her husband and their children had no legal entitlement to Pakistani citizenship.

    [38] ‘[Source deleted]

12. It is not open to the Tribunal to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice. The basis for the cancellation was that the applicant provided incorrect information about her citizenship. The evidence relied upon by the delegate to cancel the visa was that the applicant held a CNIC that had been verified by NADRA. The Department also had information that her husband held a valid CNIC and had travelled extensively using a Pakistani passport. With respect to the Pakistani passports that have been used by the applicant and her family members,  the applicant has said that these are genuine documents that were fraudulently obtained and she has provided documentation which indicates that a cancellation process instigated by their migration agent in 2020 has now resulted in the cancellation of their national identity cards by NADRA.

13. The Tribunal finds that the applicant, her children and her husband have no legal entitlement to reside in Pakistan and are stateless. The weight of country information set out above indicates that Rohingya in Pakistan are not legally entitled to citizenship in Pakistan but that genuine documentation, including CNICs, can be obtained by fraudulent means. The Tribunal therefore accepts that the Pakistani documents obtained by the applicants and [Mr A] are genuine documents that were obtained fraudulently. The Tribunal accepts that [Mr A] stated he was a Pakistani citizen in his partner visa application because he was advised to do so by a migration agent and because he has relied on the Pakistani passport in his name to travel. Even if the applicants had not been entirely forthcoming about the countries in which they had resided prior to travelling to Australia in 2013, the evidence clearly supports the conclusion that the applicants are of Rohingya ethnicity and that the applicant and her husband were born in Rakhine State, Myanmar. The fact that [Mr A] has travelled extensively using a genuine Pakistani passport that was fraudulently obtained does not change these conclusions.

14. To cancel a person’s visa under s.109, the decision maker must be satisfied that the ground exists. A mere suspicion is not sufficient to ground the cancellation; there must be a real state of satisfaction after considering all information available, not just because a decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. The Tribunal has therefore considered whether the information on the Departmental file and the country information provide sufficient basis for the Tribunal to reach a positive state of satisfaction that the applicant is, in fact, a citizen of Pakistan and that her claims that she is stateless are false. 

15. Having considered all of the evidence now before it, including the evidence of the witnesses,  the material on the Departmental file and independent information from a range of sources, the Tribunal finds that the weight of evidence clearly supports the applicant’s claims that she and her husband are of Rohingya ethnicity, and were born in Rakhine State, Myanmar.  The Tribunal finds that the applicant and her family members have previously held Pakistan passports that were genuine documents, but these documents were fraudulently obtained as the applicants had no entitlement to hold these documents. The evidence before the Tribunal indicates that these documents have been cancelled by the Pakistani authorities.

16. The Tribunal finds that the weight of evidence clearly supports the applicant’s claims that she is of Rohingya ethnicity, born in Maungdaw, Rakhine State, Myanmar. The Tribunal also finds that her husband, [Mr A], is of Rohingya ethnicity, born in Rakhine State, Myanmar. Having made this finding, the Tribunal finds that [Mr A] is not, and has never been, a citizen of Pakistan. The Tribunal therefore finds that the applicant provided correct information when she declared that she was stateless in her protection visa application and to the Refugee Review Tribunal.

17. As a consequence of these findings and having considered the country information set out above, the Tribunal also concludes the applicant is not a citizen of Pakistan.

    Conclusion on non-compliance

18. 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. 

    CONCLUSION

19. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.

21. The Tribunal has no jurisdiction with respect to the other applicants.

    Frances Simmons
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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