2300686 (Migration)

[2023] AATA 4041

2300686 (Migration) [2023] AATA 4041 (30 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Daniel Robert Taylor

CASE NUMBER:  2300686

MEMBER:Meena Sripathy

DATE:30 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 30 October 2023 at 10:04am

CATCHWORDS 
MIGRATION – cancellation– subclass 155 (Five Year Resident Return) visa – applicant had given incorrect information about nationality – claims of being a stateless Rohingya fearing persecution in Burma (Myanmar) at the time of his application for Protection visa were incorrect – possession of NIC and Bangladesh passport documentation – applicant is of Rohingya ethnicity – not satisfied that possession of documents establishes that he is a Bangladesh citizen – not satisfied that there was non-compliance by the applicant in the way described in the notice – decision under review set aside 

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant first arrived in Australia on [date] April 2012 as the holder of Student (Subclass 573) visa. He applied for a Protection (Subclass 866) visa on 25 September 2013 as an adult child of his father, [name], and made his own claims for protection on the application -Form 866C. he was granted a Subclass 866 protection visa on 16 April 2015, on the basis of information provided in his application. His claims were assessed against Burma as his country of reference for the purposes of assessing protection obligations. On 29 April 2010 the applicant was granted a Resident Return (Class bb) Subclass 155 visa, which is the subject of this cancellation decision.

3. The delegate cancelled the visa on the basis that the delegate found the visa holder provided incorrect information in his protection visa application and did not comply with s101(b) of the Act and, having considered the applicant’s response and the prescribed matters, decided to cancel the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 22 September 2023 to give evidence and present arguments. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

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

8. In the present case a Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 7 November 2022.

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

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

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

11. The non-compliance identified and particularised in the s 107 notice (the NOICC) was non-compliance with s101(b) on the basis that the visa holder provided the following incorrect answers to questions in his Protection visa application made on 25 September 2013:

    ·Question 21 of Form 866C– he answered “no citizenship held” where it asked “Your current citizenship”.

    ·Question 23 of Form 866C – he answered “no” where it asked “Do you have 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(s) of habitual residence?”

    ·Question 24 of Form 866C – he answered “stateless at birth” where it asked “If you are stateless, how, when and why did you become stateless?”

    ·Question 42 of Form 866C - he answered “Myanmar (Burma)” where it asked “I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries)”

    ·Question 45 of Form 866C – he declared in his statement he is afraid of “being harmed by the Burmese authorities and Burmese Buddhists. And as well Bangladeshi authorities because I am rohingya” where it asked “What do you think this will happen you if you go back?”

    ·Question 46 of Form 866C – he declared in his statement he is afraid of “the Burmese authorities, the Burmese authorities will not protect me. As well I am not a citizen of Bangladesh, Bangladeshi authority will send me to Burma because I am rohingya by ethnicity” where it asked “Do you think the authorities of that country can and will protect you if you go back?”

12. The NOICC alleged that the applicant’s answers to the above questions were incorrect because it appears he is a documented Bangladesh citizen and was a Bangladesh citizen at the time of his Protection visa application and had a right to enter and reside in Bangladesh.  It was alleged his claims of being a stateless Rohingya fearing persecution in Burma (Myanmar) at the time of his application for Protection visa were incorrect.

13. The NOICC referred to the following information and evidence on which the alleged non compliance was based:

    ·On 26 April 2015, his mother - [Ms A] lodged a Visitor (subclass 600) visa application in the Sponsored Family Visit stream and declared in her form that she was born in Chittagong, Bangladesh and held a Bangladesh passport – number [deleted] issued on [date] 2009.  It is noted she explained that the passport was obtained “for the purposes of survival” and that she and her husband are Burmese nationals. This application was refused on 06 May 2015.

    ·On 17 July 2019, [a named person] lodged a Combined Partner (subclass 309/100) visa application, sponsored by the applicant as her spouse. She indicated on the application that she is a Bangladesh citizen with a National Identity Card (NIC) number [deleted] and stated that she was married to the applicant on [date] February 2019 in [Chittagong] and provided a copy of a Marriage Certificate registered with the Office of the Muslim Marriage in Bangladesh.   The notice referred to independent information from UNHCR that indicates that Bangladeshi citizens and Rohingyas from Myanmar cannot be legally married in Bangladesh suggesting the applicant holds legitimate Bangladeshi identity documents for his marriage to be officially registered according to Bangladeshi law.

    ·The applicant’s Bangladesh passports, [issued] between 2004 and 2011, provided to the Department during the assessment his Protection visa application, were referred to the Department’s Document Examination Unit (DEU) for verification in November 2013. The DEU found that the passports were “legitimately manufactured documents, personalised in the expected manner with no alterations”.

    ·On [date] January 2016 upon the applicant’s return to Australia from Bangladesh, Australian Border Force (ABF) officers conducted a search of his luggage and found a copy of an undeclared Bangladesh NIC number [deleted] issued on [date] 2011 to [applicant’s name] in his possession. He stated to the ABF officers that the NIC was fraudulently obtained for him by his friend in Chittagong to enable travels between Chittagong and Dhaka.  The NOICC referred to independent information (DFAT Report) indicates a NIC is only issued to citizens of Bangladesh and is the primary identification document to obtain a Bangladesh passport.

    ·On 13 October 2022, the Bangladesh Electoral Commission (the issuing authority) confirmed with the Department that the NIC number [deleted] is genuine and that the visa holder is a Bangladeshi citizen. It appears the details recorded in their system are the same identity details the visa holder has provided to the Department.

    ·The applicant’s claims in the Protection visa application that his father enrolled him in an educational institution which was not licensed and where a lot of “illegal students” were studying, conflicts with country information (cited) that states under [Country 1] law the Minister has to approve licenses for international schools and that these licenses can be revoked. Further contradictions in the applicant’s claims regarding his education in [Country 1] between 1992-2003 are noted.

    ·Concerns were raised about the authenticity of the Certificate of Birth from Burma provided by the applicant in his Protection visa application as proof of identity.  Specifically the document referring to his parents’ race as “Muslim” and their nationality as “Myanmar” raised concerns, combined with the absence of the required registrar signature and lack of any security features, It is unlikely a genuine birth certificate would list his parents’ race as “Muslim” or nationality as Myanmar, on the basis of cited independent information.

    ·The applicant indicated in his Protection visa application that he can speak Rohingya, English and Bengali and his father indicated he could speak, read and write Urdu and English as well as speaking Rohingya, but neither indicated they could speak Burmese which is the official language of Burma since its independence from Britain in 1948. Citing information that indicates after the military coup in 1962, all schools and colleges used the Burmese language for instruction, it is unlikely his father, as a native Rohingya born in Burma in [year], would be unable to speak Burmese. Information was also cited that Rohingya is derived from the Bengali language and is similar to the Chittagonian dialect spoken in Chittagong, Bangladesh.

14. The applicant, through his representative, provided multiple responses to the NOICC between 21-24 November 2022. A substantial volume of documents were provided, including:

    ·A detailed (39 page) submission from the representative addressing the NOICC and reasons why the applicant’s visa should not be cancelled as he did not give incorrect answers in his protection visa application.

    ·Statutory Declaration by the applicant dated 21 November 2022 in which the applicant disagrees with the allegation in the NOICC and maintains he is a Rohingya and had to pretend he was Bangladeshi all of his life. The declaration contains further details in support of his claims and refuting the allegation.

    ·Statutory Declaration by [Mr B] dated 13 November 2022 declaring he is the applicant’s cousin and confirming he is a Rohingya born in [Myanmar] and an Australian citizen, and is willing to provide DNA test to confirm their relationship.

    ·Letter from [a] Psychologist dated 3 October 2014 regarding the applicant’s father.

    ·Applicant’s father’s death certificate issued by NSW Registry of Births Deaths and Marriages.

    ·Copies and translations numerous documents in support of his family’s Burmese origins, including his parents’ Burmese ID cards and marriage contract, numerous documents issued by the [Country 1] authorities to the applicant and his family members indicating their Burmese origins.

    ·A statement from the visa holder’s mother - [Ms A] [dated] 18 November 2022.

    ·Country information and news articles addressing various issues relating to the applicant’s claims, including Rohingya students in [Country 1]; passport and document fraud; KSA urging Bangladesh authorities to issues passports to Rohingyas; Bangladesh Rohingya marriage ban.

    ·References to various AAT decisions relating to similar fact situations and addressing country information about Rohingyas in Bangladesh.

15. On 18 January 2023 the delegate determined, after considering the response and material provided by the applicant, that he provided incorrect answers as described in the NOICC and therefore did not comply with s101(b) and the ground of cancellation was made out. The delegate then considered the prescribed matters in r.2.41 and decided to cancel the visa. 

    Evidence before the Tribunal

16. On 18 July 2023 the applicant provided witness statements in support of the application for review from: [Mr B] dated 4 July 2023 (second statement); [name] dated 13 July 2023; [name] dated 13 July 2023; [name] dated 7 July 2023; and [name] dated 13 July 2023.  Each of the declarations are by individuals who declare they are Rohingya and attest to knowing the applicant through his Rohingya family background and are willing to given oral evidence if necessary to the Tribunal.

17. [Mr B] ’s Statement refers to attached documents relating to his parents to confirm his identity at birth, sent to him by his brother who currently resides in [Myanmar]. The documents include the family’s household registration, father’s national registration card, mother’s temporary identity card (white card), two family photographs, one including him and one taken in 2006 after he had left which did not include him.  These documents were provided to the Tribunal on 21 September 2023.  

18. On 7 August 2023 the applicant’s representative made submissions requesting the Tribunal to obtain the applicant’s father’s PV interview audio recording if there are concerns about his Rohingya background, as a matter of procedural fairness.

19. On 1 September 2023 the Tribunal received:

    ·A further detailed Statutory Declaration by the applicant dated 30 August 2023 addressing the delegate’s cancellation decision.

    ·Three more supporting Statutory Declarations from members of the Rohingya community in Australia: [names deleted].  These individuals also indicated they were available to give evidence to the Tribunal if required.  

    ·Applicant’s SSC Registration Card & translation relating to registration at  [a] School, [City 1] in 1999.

    ·Copy and translation of [Country 1 permit] issued to the applicant’s father ad naming his family members.

    ·Translation of applicant’s [Country 1 permit].

20. On 16 September 2023 the applicant’s representative provided a further submission addressing the delegate’s decision. 

21. On 19 September the Tribunal received the following further documents:

    ·NSW Driver’s license of [a named person] and a group photo provided by this witness, showing applicant’s father together with other members of the Rohingya community.

    ·Statutory Declaration from [a named person], declaring he is a Rohingya from [Town 1], now an Australian citizen, who fled Burma in 1991 to [Country 1] through Bangladesh. He declares he acquired fraudulent documents in Bangladesh and flew to [Country 1] where he stayed for around 17 years. He knows the applicant and his family from when they were in [Country 1], and the applicant’s mother is a relative by marriage.  He attests to the applicant’s ethnicity as a Rohingya through his community and family connections and indicates his willingness to give oral evidence if necessary to the Tribunal.

    ·Further Statutory Declaration from the applicant dated 19 September 2023 addressing the circumstances around his provision of a Bangladesh police clearance to the Department in March 2015 in response to a request for it from the Department prior to the grant of his protection visa. 

    ·Various redacted documents from the applicant and his father’s protection visa [file] relating to correspondence with the Department in February and March 2013 at the time of his father’s critical illness requesting assistance for his mother and brother to come to Australia to see him before he passed.  He was advised for them to apply for a Tourist visa.

    ·Copy of applicant’s father’s protection visa decision record from file [deleted].

    Tribunal hearing

22. The Tribunal explored various matters arising from the material before it. A summary of relevant evidence provided by the applicant follows.  He told the Tribunal his immediate family comprises his mother and brother and wife who are all currently residing in Bangladesh.  His father passed away in Australia in April 2015.  The Tribunal asked about other relatives he has in Australia, noting references he made to a cousin and an aunt during his protection visa process. He named his cousin [Mr C] and aunt (mother’s sister) [Ms D]. They were both in Australia when he came here.  His cousin is still here but his aunt left some years ago and resides in Bangladesh. He named another cousin, [Mr B], who has provided a statement in support of his application. The Tribunal asked about [names] who were named in his mother’s visitor visa application. They are distant relatives on his mother’s side who he lived with when he came to Australia. They both came to Australia from Bangladesh, but to his knowledge they were born in Burma. When asked if he knows where they are now, the applicant was aware [one person] returned to Bangladesh around 2016, after receiving a letter from the Department.

23. The applicant provided the following information about his life story.  He was born in Burma and left when he was [age] years old. The family fled to Bangladesh and from there they went to [Country 1] where he studied to the end of year 12.  Then he went to Bangladesh for university. He returned to [Country 1] after university and from there he came to Australia. He did a few years of early schooling in Bangladesh before [Country 1], arriving in [Country 1] in 1994.  He stayed continuously in [Country 1] from 1994 until 2004.  He attended two different schools in [Country 1], he cannot remember the name of the first one.  After he obtained his papers [he] got admission to [a] School in [City 1] from 1997 until 2003 and completed his [tests].  He has provided his [test] registration document.  The Tribunal queried why his [paper] recognising his Burmese origins would get him admission to the ‘[a] School’ as translated on his document and put to him that it may suggest he was admitted on the basis of being recognised as Bangladeshi. The applicant referred to his mother’s statement explaining that as long as money was paid they would accept him.  He said he does not know because his parents arranged his schooling.  Later he said that the [paper] may have been required because it provided evidence of residence permission.  The Tribunal asked if he was aware if he held any Bangladesh documents during this period in [Country 1].  He said he does not know that he had anything, but believes they must have arrived on a passport when they first came in 1994. He confirmed he did not leave [Country 1] between 1994 and 2004.

1. The applicant told the Tribunal he started learning Bengali in 1997 when he commenced at the [School]. He had not studied in that language before that.  In Bangladesh when he attended school prior to coming to [Country 1]  he was very young, and the language in the area was Chittagonian which was similar to the language he knew and so he was able to get by. The applicant produced his transcript of results of his SSC in 2001 which showed his result for the Bengali subject as “C” and said he struggled with the language at the beginning. After finishing high school there was no further prospect for him to study in [Country 1]  so he was sent to Bangladesh for university. The 2004 passport was obtained for this purpose and he used it to travel to Bangladesh.  In this period he returned to [Country 1] regularly to renew his residence permit there.  When asked why he did this he said he wanted to return to [Country 1]  because he did not want to stay in Bangladesh.  This caused him to take longer to finish his course.  He had some difficulties using the 2004 passport back and forth, as it contained incorrect details including his name and date of birth.  In 2008 a new passport was arranged for him containing the correct details and he used that to go back and forth.  Throughout this time his parents and brother stayed in [Country 1]. His father worked as a [occupation].  His brother was born in [year], and later went to the same school as the applicant.

2. The Tribunal asked about ID documents he had in Bangladesh.  He said he obtained the NIC document in 2011. Before that he only had the passport.  He did not use the NIC for anything in particular, he just had it in case. The only time he did use it was to register his marriage. He tried at that time to use his Australian driver’s licence but they would not accept it. He was afraid to show his Australian travel document because it does not indicate his nationality. The applicant told the Tribunal he had left the NIC in [Country 1] with his mother and did not bring it with him to Australia when he first came.  After he returned to Bangladesh in December 2015 his mother gave it to him and that was when he brought it back with him and this was when the Australian officers found it in his luggage. He described this incident as follows. When they found this document in his luggage, they took it to another room, then came back and returned it to him. He told them it was not genuine and he had paid money to get it.  The next time he went to Bangladesh he left it there.  He used it in 2019 to register his marriage. No one questioned the card when he showed it for this purpose. The applicant said he does not have the document with him now, because he left it in Bangladesh.  He said he only ever had that one document he obtained in 2011.  He never applied for another one since then.

3. The Tribunal asked the applicant about his marriage.  He gave evidence that his wife is a Bangladesh citizen.  He was introduced to her by a friend who studies with him.  He went to Bangladesh and visited her uncle.  After her family made enquiries about him in Australia they would have come to know he was Rohingya because a member of the Rohingya community told him that her relative had enquired about him. The Tribunal queried why his wife’s family would have agreed to a marriage with a Rohingya given the information he has submitted about the poor relations between Bangladeshis and Rohingyas.  He said they were more interested in him being in Australia than his Rohingya background.  He said he told his wife and she did not care.  The applicant said the union between a Bangladeshi and a Rohingya is only illegal in Bangladesh and not in Australia so he did not think it mattered. The applicant gave evidence that her family made the arrangements for the marriage and his family and friends all attended as well as hers.

4. The Tribunal asked the applicant about his involvement in the Rohingya community in Australia. He gave evidence that he was elected twice to the executive, and his last term expired around 2016 or 2017. After that he was busy with work and working weekends so he was less involved. The Tribunal noted the cessation of his involvement seemed to coincide with the grant of his protection visa, and this may raise concerns.  The applicant said he is still involved but just not as an executive member.  He was able to name the current and previous presidents. He said many of the elders have provided statements supporting him.  He continues to attend events regularly. The applicant said anyone in the community will vouch for him and he often gets clients [from] the community. At the conclusion of the hearing, [a named person], who was present as an observer from the representative’s office, identified himself as a previous [role] of the [ORGANISATION 1] and explained that since 2017 he and other elders have stepped aside to allow for new leadership of the association. 

5. Regarding his work as a [Occupation 1] the applicant gave evidence that he last took [jobs] in 2020 or 2021. [deleted].  He did not ever get formal accreditation because there was some barrier, it may have been that he was required to have citizenship. 

6. The Tribunal invited the applicant or representative to make any submissions regarding the NOICC, including its validity or sufficiency. The representative noted that the reference in the NOICC to the applicant’s mother’s visitor visa application being made on 26 April 2015 is incorrect, as the email correspondence he has submitted earlier confirms the applicant lodged this application for his mother in March 2015 prior to the protection visa grant and this indicates that the Department was already on notice that she was applying on the basis of a fraudulent passport and therefore available to the protection visa delegate to consider.  The representative submitted it is misleading for the NOICC to imply this was information that came to light after the protection visa was granted. The representative made further oral submissions about the pressure put by [Country 1] on Bangladesh to issue passports for Rohingyas in the relevant period because of the significant number of Rohingyas in [Country 1] at that time, and this explains how and why the applicant was able to use these documents repeatedly.

7. The applicant also added that the NIC and passport are related. He was able to use the fraudulent passport details to obtain the fraudulent NIC.

8. Following the hearing the applicant provided the following further information:

   ·Brief handwritten noted stating that in addition to the relatives he referred to at the hearing he had another cousin, [Mr C] who departed Australia with her mother, [Ms D].

   ·Statutory Declaration dated 27 September 2023 by applicant providing further information about [a named person], stating that he told him that when he found out his visa may be cancelled he decided to return to Bangladesh rather than fight it due to pressure from his wife despite the risk from the Bangladesh authorities.  The last time he spoke with him he told the applicant his family applied as refugees to [a country] sponsored by his uncle.

   ·Correspondence from [name], [position] [ORGANISATION 1], dated February 2014 raising a complaint to NAATI about giving language recognition to a non Rohingya speaker and email correspondence from [ORGANISATION 1] to interpreter provider services regarding the same matter dated April 2014

   ·Evidence of [job] offers to applicant in 2022, and copy of a letter [dated] September 2016

   ·Translation and copy of applicant’s (bogus) NIC document issued in 2011.   

   ·Copy of OHCHR note on Cancellation of Refugee Status, 22 November 2004 and Note on Burden and Standard of Proof in Refugee Claims , 16 December 1998.

   Consideration

9. The issue in this case is whether the applicant provided incorrect information in his protection visa application that he was a stateless Rohingya from Myanmar (Burma) and feared harm from Burmese authorities because he is a Bangladesh citizen.

10. The delegate concluded that the applicant was a documented Bangladesh citizen on the basis of the evidence of his NIC, multiple Bangladesh passports and registration of his marriage in Bangladesh to a Bangladesh citizen. The delegate considered information about the NIC that came to the Department’s attention subsequent to the grant of his protection visa warranted reconsideration of the information he provided in his Protection visa application, including the Bangladesh passports he had previously declared, and other documents and information relating to his protection claims. 

11. At the outset, in considering the issue of whether there was non compliance in the manner set out in the NOICC,  the Tribunal is mindful that, even though civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context,[1] where the existence of facts grounds the exercise of a statutory power, as in cancellation cases, the onus of establishing those facts is on the Minister (or on review, the Tribunal),[2]  Judicial authority establishes that although the visa holder must be invited to show that the ground does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled.[3]   In deciding whether the ground for cancellation is made out, the Tribunal considers it is appropriate to take into consideration the nature of the allegations and the gravity of the consequences.[4]  In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his Protection visa application are, undeniably, serious and the Tribunal takes this into consideration in its evaluation of the information before it. 

    [1] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.

    [2] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].

    [3] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000). While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.

    [4] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 and Sun v Minister for Immigration and Border Protection [2016] FCAFC 52. Eg. The Court in Sullivan observed at [120] ‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’

12. Having regard to these principles, and for the following reasons, the Tribunal is not satisfied in the present case that the evidence before it establishes that the applicant is a Bangladesh citizen.  The Tribunal has considered the substantial written, oral and documentary evidence relating to the applicant’s Rohingya origins before it and finds on this evidence that the applicant is a Rohingya born in Rakhine state, Myanmar.  It is satisfied, on the weight of a substantial body of country information, that Rohingya from Myanmar are ineligible for Bangladesh citizenship. Having made these findings, the Tribunal has considered the evidence before if of the applicant’s NIC and Bangladesh passports and is not satisfied that his possession of these documents establishes that he is a Bangladesh citizen. Therefore the Tribunal is not satisfied the applicant provided incorrect answers in his protection visa application.

    Is the applicant a Rohingya born in Rakhine State, Myamnar

13. Critical to the Tribunal’s conclusion about the issue of whether the applicant is a Bangladesh citizen on the basis of possession of NIC and Bangladesh passport documentation is whether it accepts his claim to be a Rohingya, born in Rakhine State, Myanmar. 

14. There is a substantial amount of evidence before the Tribunal to support his claimed Rohingya from Rakhine State, Myanmar origins. This includes Burmese identification documents for his mother and father, their Burmese marriage contract and documents issued by the [Country 1] authorities to the applicant and his family indicating their Burmese origins. The Tribunal observes that the majority of these documents were submitted with and considered and accepted without concerns raised as to their authenticity in his protection visa process. At hearing the applicant gave oral evidence and the Tribunal questioned him about his family composition and background and the documentation presented, as detailed above. While the Tribunal acknowledges the delegate’s reference to DFAT country information that document fraud is prevalent in Myanmar, taking into account the totality and timing of his provision of the Burmese documentation from his parents, the additional documents from the [Country 1]  authorities and the country information referred to in the representative’s submissions on this issue, in the Tribunal’s view there is no substantive basis on the material before it to conclusively find that all of this documentation is fraudulent.

15. There is also before the Tribunal Statutory Declaration evidence from a claimed blood relative recognised as Rohingya by authorities in Australia who attests to their familial relationship (and offered to undergo DNA testing) and no fewer than eight Statutory Declarations from Rohingya persons in Australia who are personally known to the applicant and who attest to the applicant’s Rohingya origins. The Tribunal has considered these declarations, their authors and their content.  They come from a range of individuals and contain consistent and sufficient detail of their knowledge of and connection with the applicant and his family members in [Town 1], Rakhine State, Myanmar, [Country 1] and Australia to be persuasive and credible. Supporting documentation, including photographs were attached.  All of the individuals who provided Statutory Declarations were willing and available to give oral evidence to the Tribunal, however it did not consider it necessary in the circumstances and is prepared to accept the evidence contained in the declarations.  Moreover, there is persuasive evidence before the Tribunal of the applicant’s involvement in [ORGANISATION 1] and his employment as a [Occupation 1] in Australia over many years.  The Tribunal finds the applicant’s supporting evidence from the [ORGANISATION 1] and his Rohingya language fluency are strong indicators that he is of Rohingya ethnicity.  

16. Having carefully considered the evidence before it, the allegations and concerns raised in the NOICC and delegate’s decision, information contained in Department file documents provided to the Tribunal, and independent information from a range of sources, the Tribunal finds that the overwhelming weight of evidence before it supports his claims as to his ethnicity, family composition and country of origin.

17. The Tribunal is satisfied that the applicant is of Rohingya ethnicity, born in [Town 1], Rakhine State, Myanmar.  It accepts that he fled from there with his family to Bangladesh when he was [age] or [age] years old and after that the family went to [Country 1].

    National Identification Card

18. The Tribunal has considered the evidence before it relating the applicant’s purported Bangladeshi documentation, in light of the above finding on his ethnicity.

19. The NIC was located in the baggage of the applicant by officers of the Australia Border Force during a search on arrival on [date] January 2016. A copy of it is included in the Department file, but no original document was retained.  Information in the Department files includes the following (contemporaneous) file note regarding this event state:  PAX ADVISED THAT IT IS A FRAUDULENT CARD. HIS FRIEND IN CHITTAGONG MADE IT AS HE NEEDED IT TO TRAVEL BACK AND FORTH BETWEEN CHITTAGONG AND DHAKA AS THEY DO NOT ACCEPT PASSPORTS AS ID DOCS. (I NOTE THAT QUALITY OF THE IDENTITY CARD WAS VERY POOR - BASICALLY TWO PIECES OF PAPER, POORLY CUT AND LAMINATED BACK TO BACK. CUTTING OF LAMINA WAS ALSO VERY LOW QUALITY). The notes confirm no Bangladesh passport was found, and his Australian Titre de Voyage included Dhaka arrivals and departure stamps and a Bangladesh Tourist visa stamp from High Commission in Canberra issued [date]/2015.[5]

    [5] [file number]

20. The file records of the verification undertaken of the NIC indicates that a check was done of the NIC number which revealed the sponsor’s details were shared from their office records. Correspondence between the Department and post  provides information that prior to 2016, the registration process was largely based on existing records and documents held by the person at the time, and it is only since 2016 that biometric collection and other measures have been initiated.[6]  Further information from post to the Department regarding processes and requirements to obtain a NIC also raises doubts about the reliability of this document as a basis for concluding the applicant’s citizenship.[7]

    [6] [file number]

    [7] See for example, file note I have spoken to a DFAT LES in Dhaka who stated that in 2008 he attended a school, gave his bio-details (no documents were presented as proof if ID). He also had his phot taken and a thumb print. Seven days later he attended the school again and was given the NID. Therefore, based on the LES experience it is possible that the POI did not have to present any proof of ID to obtain the NID if they already existed in the Bangladeshi [system]

21. The applicant has consistently maintained that is not and has never been a Bangladesh citizen. His explanation of the NIC was that it was a fraudulent document obtained by him to facilitate his movements within Bangladesh, and for the protection of his family. He was not asked by the ABF to hand over the document when it was located on him in January 2016 and took it back with him when he next returned to Bangladesh and subsequently used it to register his marriage in 2019 because his marriage to a Bangladesh citizen as a Rohingya was not permitted under Bangladesh law and it would have caused problems for his wife in Bangladesh if the marriage was not registered. Successive DFAT country reports on Bangladesh have referred to Rohingya being known to have obtained fraudulent identity documents in Bangladesh.[8]

    [8] ‘DFAT Country Information Report Bangladesh’, (Australian) Department of Foreign Affairs and Trade, 5 July 2016, Sect.5.27, p.24, DFAT Country Information Report Bangladesh’, Department of Foreign Affairs and Trade (Australia), 2 February 2018, para. 3.15, p.12, Country Information Report Bangladesh’, Department of Foreign Affairs and Trade, 22 August 2019, para. 3.22

22. The Tribunal accepts the applicant’s explanation is plausible and credible, and consistent with independent information before the Tribunal about Rohingya obtaining fraudulent identity documents[9] and Bangladeshi citizens and Rohingyas from Myanmar not being able to legally marry in Bangladesh.[10] It notes there is only this NIC from 2011 before the Department and Tribunal, and the applicant’s evidence confirms that he only ever possessed this one NIC and never sought to renew it.  There is no evidence that he obtained a smart NIC, even though this has been available since 2016.[11]

    [9] Danish Immigration Service, Rohingya refugees in Bangladesh and Thailand, May 2011, 1/2011, available at: 23 October 2023], and the sucessive numerous DFAT reports referred to above.

    [10] Rohingya refugee crisis: Registration of the marriages and divorces of refugees - Bangladesh | ReliefWeb

    [11] Country Information Report Bangladesh’, Department of Foreign Affairs and Trade, 30 November 2022, para. 5.32. The Tribunal notes this report indicates that many older cards without security features are still in use and valid.

1. Given the above mentioned concerns about the quality of the evidence of the NIC that is before it, the country information supporting the applicant’s claims that it is not genuine and the finding, above, that the applicant is a Rohingya from Myanmar the Tribunal is not satisfied the evidence of the NIC is sufficient to establish the applicant is a Bangladesh citizen.

   Possession of Bangladesh passports

2. The NOICC also refers to the applicant’s possession of Bangladesh passports issued between 2004 and 2011 which had been found by the Department’s Document Evaluation Unit (DEU) to be ‘legitimately manufactured documents, personalised in the expected manner with no alterations.’

3. The applicant disclosed these passports to the Department upon arrival and has consistently maintained they were all fraudulently obtained because he was not a Bangladesh citizen.  He points out, and the Tribunal accepts, the issue of whether the possession of these passports evidenced his Bangladesh citizenship was considered and determined in the context of his protection visa assessment.[12] While the cancellation delegate in this process was of the view that the subsequent discovery of a NIC, verified as genuine, warrants a reconsideration of the significance of the evidence of his passports, the Tribunal is not so  convinced that it does, but has nevertheless considered the issue again.

   [12] Protection visa Recommendation, [information deleted]

4. There is a substantial body of independent information to indicate the prevalence of passport fraud in Bangladesh and, specifically evidence that Rohingya can and do obtain Bangladesh (including genuine) passports by fraudulent means, such as paying bribes.[13] The 2011 Danish Immigration Service report, referred to earlier,  draws on several sources to indicate Rohingya have being historically able to obtain passports, including, relevantly in the applicant’s circumstances, reports of Rohingya in [Country 1] being able to renew their passports to travel and seek asylum.[14]

   [13] See for example, DFAT Country Information Report Bangladesh’, 30 November 2022, para 5.34 and earlier reports also referred to this , eg. DFAT Country Information Report Bangladesh’, 22 August 2019, para. 5.41, p52

   [14] [deleted]

5. Given the above information regarding passport fraud, country information that indicates Bangladesh does not give citizenship to Rohingyas (see below) and the Tribunal’s conclusion on the applicant’s Rohingya origins, the Tribunal is not satisfied that the evidence that he previously held Bangladesh passports is sufficient to establish that he is a Bangladesh citizen.

   Availability of citizenship for Rohingya in Bangladesh[15]

   [15] The Tribunal notes that the following country information has been referred to, and accepted, in a number of AAT decisions, as cited by the applicant’s representative and referred to by the delegate in the decision record (1828192(Migration) [2021] AATA 1395, 1833850 (Migration) [2019]AATA 6512).

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

7. A limited number of sources however note instances of Rohingya who have obtained Bangladeshi citizenship. However, in these sources it is unclear as to whether the Bangladeshi authorities granted citizenship to Rohingya, or whether Rohingya obtained citizenship through means not strictly legal. An incident reported in 1978/1979 in which the Bangladesh government issued genuine Bangladeshi passports to an unknown, but substantial number of Rohingya who were fleeing atrocities in neighbouring Myanmar. The purpose of issuing the passports was to facilitate the Rohingya’s onward travel to [Country 1]. Commentary emerging about this incident in 2013, including by Bangladeshi officials, indicates that the granting of passports may have simultaneously conferred Bangladeshi citizenship status on the Rohingya passport holders, despite the relevant Bangladeshi laws being ambiguous on the matter.

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

   Bangladesh accepted some 200,000 Rohingyas in 1978 and 250,877 Rohingyas in 1991 as refugees (also called ‘Myanmar refuges’) ‘on a prima facie basis’ and from ‘humanitarian considerations’. […] Rohingya refugees in Bangladesh or the self-settled undocumented Rohingyas are stateless refugees (Sen 1999) or undocumented stateless immigrants. There are no legal rules facilitating their access to permanent residence or citizenship. Neither does the government of Bangladesh presently permit the local integration of refugees.[16]

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

9. In a December 2016 report documenting the rights of Rohingya across multiple countries, Bangladeshi academic and Rohingya specialist Ashraful Azad writes that the only Rohingya with any official status (that is, ‘refugee status’) in Bangladesh are those who entered the country during the 1991-92 influx, and who were accepted as refugees on a prima facie basis. The remainder (noting this was before the 2017 influx of over 700,000 Rohingya) which then numbered between 200,000 and 500,000, were unregistered, and typically labelled as ‘illegal foreigners’, ‘illegal Burmese’, ‘undocumented Myanmar nationals’ (UMN) and ‘economic migrants’ by the Bangladeshi government.[17]

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

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

    In the North of Bangladesh a Rohingya would “stand out”, but not in the border area. However, in the villages everybody will know who is a Rohingya which make them vulnerable as they are not citizens. Between 150,000 and 300,000 live in villages and the source assumes they are integrated and has no reason to believe they are excluded from mosques etc., but they are not Bangladeshi citizens.[18]

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

11. A Human Rights Watch report published in 2000 recommends that Rohingya be given the opportunity to acquire Bangladeshi citizenship, indicating that it was not available to them at that time.[19]

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

12. The Australian Department of Foreign Affairs and Trade’s 2019 report on Bangladesh state that Rohingya are not eligible for Bangladeshi citizenship, writing ‘[r]egardless of their arrival date in Bangladesh, Rohingya are not eligible for Bangladesh citizenship (including through marriage) and are not legally entitled to work’.[20]  The most recent 2022 DFAT report on Bangladesh continues to state Rohingya are not permitted to work and confirms their lack of legal status.[21]

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

    [21] ‘DFAT Country Information Report Bangladesh’, Department of Foreign Affairs and Trade, November 2022, para 3.22 and 3.32, p 14-16

13. The most recent US Department of State Country Report for Bangladesh continues to state Rohingya in the country were legally or in fact stateless. They cannot acquire Bangladeshi citizenship, nor does the government of Burma recognize them as citizens.[22]

    [22] 2022 Country Reports on Human Rights Practices: Bangladesh, Bangladesh - United States Department of State Section G Stateless Persons

14. The only information located that referred to avenues for citizenship for Rohingya, has been in the context of marriage.  For example, a 2015 report by the Calcutta Research Group suggests that citizenship via marriage has in the past been an avenue to citizenship[23] however this was qualified by mention of the draft law banning marriage of Bangladeshi with Rohingyas which has now come into effect.

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

15. The Tribunal also notes the 2011 UNHCR report[24], mentioned in the delegate’s decision,  that some ‘longstanding’ Rohingya based in Bangladesh have obtained citizenship, without specifying the means of citizenship acquisition. However the Tribunal was unable to locate any further information to support or elaborate on this.

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

16. In view of the weight of country information that indicates Rohingya are not eligible to access Bangladesh citizenship and are legally stateless and the Tribunal’s finding in this case that the applicant is a Rohingya from Rakhine State, Myanmar, the Tribunal is not satisfied, to the requisite state of satisfaction required in the context of a permanent visa cancellation, that possession of a NIC and Bangladesh passport(s), even verified as genuine documents,  is conclusive evidence in this case that he is a Bangladesh citizen.

17. Therefore the Tribunal is not satisfied that the applicant has provided incorrect information in his protection visa applicant that he held no citizenship and has no right to enter or reside in any country and is a stateless Rohingya from Myanmar, and fears harm from authorities in Myanmar on that basis.

18. 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

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

    Meena Sripathy
    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.