2209985 (Migration)

[2023] AATA 3591

2209985 (Migration) [2023] AATA 3591 (11 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Heather Elizabeth Marr (MARN: 0531677)

CASE NUMBER:  2209985

MEMBER:Jessica Henderson

DATE:11 October 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 200 (Refugee) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 11 October 2023 at 5:12pm

CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 200 (Refugee) – satisfaction as to identity – same name and details as person registered with UNHCR – extensive documentation in previous name provided to tribunal – consistent biographical evidence – minority ethnicity and Christian – forced labour for military and unlawful departure to third country – unable to obtain assistance from UNHCR – told by church to assume identity of other person and attend interview after they couldn’t find other person – credible evidence – cultural flexibility of naming conventions does not prove lack of honesty – all other claims applicant’s own – decision made on grounds of identity, not provision of incorrect information – change of name – addition of tribal name as surname reasonable for living in Australia – member of family unit – consequential cancellation of wife’s visa with no jurisdiction to review – Australian citizen children not included in application – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1AA), 348

CASES
Rani v MIMA (1997) 80 FCR 379
Tien v MIMA (1998) 89 FCR 80

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 dated 30 June 2022 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 200 (Refugee) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1AA) on the basis that the delegate was not satisfied as to the first named applicant’s identity. 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 under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was 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 which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. For convenience, then, the Tribunal will refer to the first named applicant as ‘the applicant’ in these reasons, and to the second named applicant as ‘the applicant’s wife’.

5. The applicant appeared before the Tribunal on 11 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the [Language] and English languages.

6. The applicants were represented in relation to the review.

7. 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

   Grounds for cancellation

8. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out.

9. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   NOICC

10. In the Notice of Intention to Consider Cancellation (NOICC) dated 25 February 2022 the Minister’s delegate identified the ground for cancellation in the following terms:

    You have used the same identity as another person registered with the UNHCR in [Country 1]

    You and your wife travelled to Australia from [Country 1], [in] December 2012, and have not travelled overseas since. The Department has received information that a person registered with the UNHCR in [Country 1] with your same name, date of birth, and parents’ names, travelled from [Country 1] to [Country 2] in November 2011.

    Given you have not provided any identity documents from Myanmar to support your claimed identity, the above information indicates you may have adopted another person’s identity in [Country 1] and that the person who genuinely had that identity travelled to [Country 2].[1]

    [1] NOICC p6

    …

    Anomalies in your UNHCR Resettlement Registration Form

    The UNHCR Resettlement Registration Form submitted with your Refugee visa application comprised of five pages…

    I consider the form contains multiple inconsistencies and anomalies…

    These anomalies indicate the UNHCR Resettlement Registration Form you submitted with your Refugee visa application may not have been genuine. Specifically, I find there are different case numbers appearing in the Form, thereby indicating the information applies to more than one person, and the case number on the third and fourth pages is a number which is not one listed anywhere in your UNHCR paperwork, thereby indicating these pages could be for another person.[2]

    …

    Change of family name to ‘[SURNAME]’

    I note you have attempted to change your name on several occasions:

    You initially registered with the UNHCR on 5 January 2010 in the name [the applicant, without Surname], and your UNHCR card was issued in this name.

    Subsequently, some two years later, on 16 February 2012, in your UNHCR Resettlement Registration Form, the UNHCR delegate noted you had ‘agreed’ to using the family name [SURNAME] in your resettlement submission. No further explanation was provided and no supporting documentation was submitted.

    On 18 May 2012 you applied for your Refugee visa in the name [the applicant, with Surname]. Despite the notation in your Resettlement Registration Form indicating your consent to use the name [Surname], your visa was granted under the name [the applicant, without Surname], (as per your UNHCR registration and UNHCR card). This decision appears to indicate the delegate had insufficient evidence to support the use of [SURNAME] as your family name.

    Some years later, on 8 March 2017, just before you lodged an application for citizenship, you officially changed your name to [the applicant, with SURNAME], as per the Change of Name Certificate, issued by the Western Australian Registry of Births, Deaths and Marriages, submitted with your Citizenship application. You advised the name [SURNAME] is your tribe name.[3]

    [2] NOICC p7

    [3] NOICC p8

11. The delegate NOICC noted that “Departmental records show that, to date, you have not provided any identity documentation issued to you in Myanmar, apart from your UNHCR card and Resettlement Registration Form.”[4]

    [4] NOICC p6

12. The applicant was invited by the NOICC to comment on the summarised information and show why the ground for cancellation did not exist or give reasons why his visa should not be cancelled.  The response was invited in writing within 14 days with any supporting evidence to be attached.

    Response to NOICC

13. On 11 March 2022 the applicant’s agent wrote to the Department requesting an extension of time to respond to the NOICC. The Department responded on 14 March 2022 to the effect that there are no provisions in the Migration Act allowing for such an extension of time. However, the Department noted that any information received ahead of a decision being made would still be considered. By email dated 4 April 2022 the applicant’s agent noted that documents were being obtained from Myanmar that would require translation, and it was anticipated that a final submission would be made on 8 April.

14. Although the decision was not made until 30 June 2022 it does not appear from the Department’s file that any further information was received.  The applicant’s agent sent an email on 11 July 2022 confirming that an email was sent to the Department on 26 April 2022 but that it was not possible to provide a copy due to issues with a new server.

    Cancellation

15. The visa cancellation decision relies on s 116(1AA) of the Act.

16. Section 116(1AA) reads:

    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.

17. Subsections (2) and (3) refer to prescribed grounds of cancellation which do not apply to the applicant.

    What is meant by identity?

18. The National Identity Proofing Guidelines of the Department of Home Affairs notes that, ‘A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.’[5] The Department’s policy advice manual explains:

    The identity of an applicant is established using three pillars: biometrics, documentation and biography. To reach a level of satisfaction that an applicant’s identity is or is not as claimed, a decision maker should have regard to the consistency of information provided in relation to all three pillars.

    While applicants should provide biometrics, and may provide documentary evidence of identity, nationality or citizenship, consistent biographical information is important in assessing the applicant’s identity. It is, therefore, essential that the three pillars of identity are considered in reference to one another, so a complete picture can be built.[6]

    [5] Department of Home Affairs, National Identity Proofing Guidelines, 2016 at 2.1.1 PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.

19. Documentation includes all available documentary evidence relating to an applicant's identity, nationality or citizenship. Biography is the life story of an applicant. Biometrics includes personal identifiers such as facial image and fingerprints.[7]

    [7] PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.2

    Biometrics

20. The first named applicant’s travel document issued by the Australian High Commission which he used to enter Australia [in] December 2012 (Australian Travel Document) matches the appearance of the applicant at the hearing on 11 October 2023.  The Tribunal is satisfied that the applicant is the person to whom the Australian Travel Document was issued.  The details in that document show that the applicant’s name is [the applicant, without Surname], that his birth date is [Date 1], that he is married, and that his birthplace is [Village 1], Myanmar.

21. The applicant’s wife also travelled to Australia by way of a travel document issued by the Australian High Commission, which shows that she entered Australia on the same day as the applicant.  The photograph matches the appearance of the applicant’s wife at the hearing on 11 October 2023, and the Tribunal is satisfied that the applicant’s wife is the person to whom the travel document issued.

22. Those two documents are the only biometric information before the Tribunal in these proceedings.

    Documentary evidence

    Evidence before the Department

23. The applicant has provided an Australian change of name certificate showing that on 8 March 2017 he changed his name from [the applicant, without Surname] to [the applicant, with Surname].

24. The applicant has also provided an Australian change of name certificate showing that on the same day the applicant’s wife changed her name from [the applicant’s wife, without Surname] to [the applicant’s wife, with Surname].

    Evidence before the Tribunal

25. The applicant has provided the Tribunal with a statutory declaration signed by the applicant dated 4 September 2023.  In it he says that his name is not [the applicant, with Surname].  He says that his name is [Alias] and that he was born on [Date 2] at [Village 2], [Township], Chin State, Burma.  He provides details of both his parents and his sister, and provides details of his schooling, local church and baptism.  He confirms the date and location of his marriage to his wife, and the circumstances of his travel out of Myanmar.

26. In support of his claim to be [Alias], the applicant provided the following documentary evidence:

    a.A statutory declaration signed by the applicant’s wife dated 4 September 2023 confirming that she is married to [Alias] who is also known as [the applicant, without Surname], that she has known him since high school, and that she has been married to him since [Date];

    b.Birth certificates for three children born to [the applicant, without Surname] and [the applicant’s wife, without Surname] in Australia, showing the name “[Alias first name]” as a middle name for two of his three children;

    c.A Burmese household members list for [Alias] with a certified translation;

    d.A Burmese household members list for [the applicant’s wife, without Surname] with a certified translation;

    e.A baptism certificate for [Alias] in English dated 23 April 2000; and

    f.A marriage confirmation for [Alias] and [the applicant’s wife, without Surname] in English dated 21 September 2022 stating that they were married on [Date].

    Biographical evidence

27. Although the applicant now claims a different name, village and parentage, the balance of his biographical evidence has been consistent throughout his dealings with the UNHCR, the Department and the Tribunal.

    Nationality, ethnicity and religion

28. The applicant has consistently maintained that he is a national of Burma, of Chin ethnicity and a practicing Christian.  He has relied upon [Language] interpreters in his dealings with his agent, the Department and the Tribunal.  He is clearly fluent in [Language].  His children are named in accordance with Chin traditions and language.  The applicant brought a local Christian pastor as a support person to the hearing, and has given consistent evidence about his family’s Christianity, his attendance at Sunday school and his baptism.

29. The Tribunal accepts that the applicant is a national of Burma, of Chin ethnicity and is a practicing Christian.

    Early life

30. The applicant’s oral evidence to the Tribunal during the hearing was that he was born in [Village 2], where he lived with his parents until 2006.  He described the village in significant detail, recalling in particular a very large mango tree at the entry to the village.  He accurately described the geography, economy and landscape of [Village 2]. He described his early family life, noting that his parents lived together as a couple according to tradition but that he had never asked them whether they were married to each other.  He described his younger sister, who he says is now living in a camp on the [Country 4] /Burma border because of the civil war. The applicant descended into detail about his early education and his schooling in [Township].  He said that the schooling was sometimes in Burmese, which he understood about 80% of back then, although he is not now fluent in Burmese. 

31. That part of the applicant’s story is different from his UNHCR and visa applications.  However, the applicant’s oral evidence to the Tribunal was very detailed, and the Tribunal believes the applicant’s oral evidence to the Tribunal as to the details of his childhood and family.

    Departure from Burma

32. The applicant described his work on his parents’ farm, and his forced labour for the military.  He described in detail the first time he was co-opted to carry ammunition for the military, and the men who had approached him.  The Tribunal notes that his spontaneous descriptions of the men and the circumstances were persuasive, particularly the nature of the details that the applicant recalled such as the military men chewing butternut most of the time.

33. The applicant described for the Tribunal the day that he had been asked to help the military from 12.00pm and thought that he could go to the farm first to sow seeds.  He said that he was afraid that if the seeds weren’t sowed, they would not have anything to eat, and recalled that his father was already too sick to do it.  The applicant said that his mother arrived at the farm and told him that the military had come looking for him and were very angry that he wasn’t there.  She gave him all the money they had and told him to run and find his way to [Country 1].  He says that he took bananas and water from the farm and walked for two days to get to [Location 1].  He thought it was about 40 miles.  He said that there was not a direct road, and described to the Tribunal the path he had taken.  Once in [Location 1] he described his bus journey to Rangoon.  He could not recall the cost of the bus journey but thought it was between 10,000 and 20,000 kyats.

34. The applicant said that once he was in Rangoon he looked for Chin people and asked them about how to get to [Country 1].  They told him about brokers and took him to see one.  He recalled being taken to an area of Rangoon with tall apartment buildings and meeting a broker in a coffee shop on the ground floor of one of those buildings.  The broker took him to [Location 2], where he stayed for two days before being moved to [Location 3] in [Country 3].  There he was confined to a room with 3 other people and warned to stay inside.  After that he was taken to [Country 1] where he immediately sought out the Chin Refugee Committee for assistance. 

35. As far as that part of the applicant’s biography goes, it is consistent with the applicant’s history as presented at each stage of the visa process and the Tribunal accepts that it is a truthful recount of the applicant’s history.

    Change of identity

36. Whilst waiting for an interview with the UNHCR the applicant says that he worked as a [work task] in a [workplace] for a year.  After that he was a bit more familiar with [Country 1] and the local language and he was able to get work in a restaurant.  However, he says that he was robbed on the way to work, was detailed by the police because they didn’t like his appearance and was subject to repeated immigration raids.  His mental health suffered as a consequence, and he was increasingly afraid for his life.

37. The Tribunal asked the applicant about how he came to assume [Mr A, the man whose name became the applicant’s name, without Surname]’s UNHCR application.  He said that he was volunteering at a church where they could see how depressed he was becoming. The elders at the church told him they had been contacted to try and find [Mr A], who had been given an interview date and time at the UNHCR but had disappeared.  They encouraged him to take the interview.  He said that he didn’t do any paperwork or obtain any false documentation.  He just attended at the interview and was given [Mr A]’s serial number.  He was asked for his claims and told his own story.  He doesn’t know what [Mr A]’s claims were. 

38. It is relevant to the Tribunal’s assessment of the applicant’s credibility that the naming conventions in Myanmar (including Chin) appear to be more flexible that in western tradition.  In particular, it seems that the Burmese people may change their name at any point in their life, and that it is common to do so at times of being burdened by bad luck or ill health.[8]  The applicant’s willingness to change his name to speed up an interview process does not positively prove any overall lack of integrity or honesty on the part of the applicant or cast inevitable doubt as to the balance of his claims.

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39. The applicant’s account is credible, and his reasoning is rational.  The Tribunal believes the applicant’s account of assuming [Mr A]’s name and address.

    Concerns raised in the NOICC

40. If the Tribunal accepts that the applicant is [Alias] then his identity is consistent with the evidence before the Department. The Tribunal turns to the concerns raised about the applicant’s identity in the NOICC and makes the following observations.

    Same identity as another person registered with the UNHCR in [Country 1]

41. The applicant has conceded that he used another person’s personal details (including name, parent’s names, and place of origin) in order to take advantage of an opportunity for an interview with the UNHCR.  He says that he did so at the urging of his church elders, in circumstances where he and his wife were at serious personal risk as unrecognised refugees in [Country 1]. It is not now in contention that [Mr A] was another applicant to the UNHCR whose application pre-dated that of the applicant and whose interview the applicant attended.

    Anomalies in the UNHCR Resettlement Registration Form

42. The anomalies identified by the Department in the UNHCR Resettlement Form are consistent with the applicant’s claims as now made to the Tribunal.  He says that he only adopted [Mr A]’s name and other personal details in order to utilise [Mr A]’s scheduled interview at the UNHCR, and that otherwise he has been honest and forthright about his reasons for seeking protection.  His provision of a form that had some of his own information and some of [Mr A]’s is consistent with that story.

    Change of family name to ‘[SURNAME]’

43. The applicant says that he was deeply uncomfortable continuing to assume a false name in Australia, but that he accepted advice from people that he trusted that he should not reveal what he had done to the Australian authorities.  He did not have a surname from birth and had previously picked [Surname] as a surname when required to give one.  It was a reasonable change of name for a Chin ethnic living in Australia (where three names and Anglicised surnames are common).  It does not suggest that the applicant was previously known by the name [Surname] (or any of its variations) prior to leaving Burma.

44. The Tribunal considers that the concerns raised by the Department are not inconsistent with the applicant’s identity as presently before the Tribunal.

    Findings about the applicant’s identity

45. The Tribunal is persuaded that the applicant’s name is [Alias], and that he was born on [Date 2] at [Village 2], to Chin Christian parents.  He attended primary school in [Village 2], and then high school in [Township], where he met [the applicant’s wife, without Surname], whom he married on [Date] and has remained married to ever since.

46. The Tribunal is satisfied that the applicant was forced to volunteer for the military in [Village 2], and that his voluntary service ended abruptly when a misunderstanding or delay meant that he was not available to carry ammunition at an appointed time.  The Tribunal accepts that the military response was to threaten extreme violence against the absent applicant, who was warned by his mother and fled on foot, walking some 40 miles [Location 1] where he caught a bus to Rangoon.  At Rangoon the applicant was introduced by some Chin colleagues to people smugglers who assisted the applicant to cross the border into [Country 3] and then [Country 1].

47. The Tribunal accepts the applicant’s evidence that in the four years he was in [Country 1[he was robbed at knife point, detained by the police on a random charge, and subjected to repeated immigration raids forcing him into hiding. The Tribunal accepts that the applicant tried to obtain assistance from the UNHCR during this time but was unable to obtain an interview, and that the applicant took advantage of an opportunity when his local church told him that the UNHCR was trying to notify [Mr A] of an interview but was unable to locate him.  The Tribunal accepts that the applicant assumed [Mr A]’s name, identity number and personal details (village and parentage) but that the applicant otherwise presented his own story to the UNHCR.

48. The Tribunal is satisfied that the applicant travelled to Australia on the Australian Travel Document, and that he is the person whose photograph appears on that document.

49. Section 116(1AA) requires that that the Tribunal is ‘satisfied as to the visa holder’s identity’. The Tribunal is satisfied that the narration presented at the hearing is the biographical story of the applicant. It is consistent with the only biometrical data available to the Tribunal, being the Australian Travel Document. The documentary evidence presented to the Tribunal is consistent with the biographical story. The Tribunal particularly notes the custom of the applicant’s family of giving the name [Alias first name] to their children, a name that the applicant said, and the interpreter confirmed, means ‘[Meaning]’ in the Chin language. That tradition was passed down to the applicant’s children at a time when his identity was not in doubt, and appears to be a spontaneous action done purely as a matter of tradition and not in any attempt to strengthen his claim to be [Alias].

50. The applicant adopted a different name for the purpose of obtaining an interview and then presented to the Department incorrect information about who he was.  It is not relevant for the purposes of this specific decision. The Department may consider cancellation of the applicant’s visa for having provided incorrect information, however there are strong reasons not to cancel the visa considering that the applicant has three Australian citizen children born in Australia and is a Christian Chin from Myanmar.  The Tribunal also notes the effect of the cancellation on the applicant’s wife, whose visa is dependent on his but who, on the facts found by the Tribunal in this matter, would also be at risk of serious harm as a Christian Chin in Myanmar.  The Tribunal notes that there does not appear to be any doubt either about the applicant’s wife’s identity or her marriage to the applicant.

51. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

52. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 200 (Refugee) visa.

53. The Tribunal has no jurisdiction with respect to the second named applicant.

    Jessica Henderson
    Member