BGE19 v Minister for Home Affairs
[2024] FedCFamC2G 549
•18 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BGE19 v Minister for Home Affairs [2024] FedCFamC2G 549
File number(s): SYG 718 of 2019 Judgment of: JUDGE OBRADOVIC Date of judgment: 18 June 2024 Catchwords: MIGRATION LAW – JUDICIAL REVIEW – Decision of the Minister – Internal review of cancellation of visa – Deliberate provision of false information – Whether delegate failed to consider component integers of primary argument of applicant – Whether the reason of ‘transliteration error’ was irrational and illogical Legislation: Migration Act 1958 (Cth) ss 107A, 109, 101, 116, 128, 129, 131 Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44
Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 173
M1/2021 v Minister for Home Affairs [2022] HCA 17
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
The Macquarie Dictionary, 3rd Edition
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of hearing: 10 April 2024 Place: Parramatta Counsel for the Applicant: Mr Gormly Solicitor for the Applicant: Sydney West Legal And Migration Counsel for the Respondent: Mr Johnson Solicitor for the Respondent: Sparke Helmore ORDERS
SYG 718 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BGE19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
18 JUNE 2024
THE COURT ORDERS THAT:
1.The decision of the Respondent be set aside.
2.A writ of mandamus issue, remitting the matter to the Respondent, for redetermination according to law.
3.A writ of prohibition issue, prohibiting the Respondent and his delegates, servants and agents from acting upon or giving effect to the decision of the Respondent.
4.The Respondent pay the Applicant’s costs as agreed or assessed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are the Reasons for Judgment in respect of the Amended Application filed 28 March 2024 seeking judicial review of a decision of a delegate dated 18 February 2019 of the then Minister for Home Affairs (‘delegate’), now Minister for Immigration, Citizenship & Multicultural Affairs, refusing to revoke the cancellation of the applicant’s Resident Return (subclass 155) visa (‘return visa’) pursuant to s.131 of the Migration Act 1958 (Cth). The return visa was cancelled under s.128 of the Act in circumstances where the applicant was offshore and, as such, was not subject to merits review.
The applicant raised two grounds for review in her amended application, abandoning grounds 2 and 4:[1]
1.The delegate constructively failed to exercise the jurisdiction under s 131 of the Migration Act 1958 and failed to afford the applicant procedural fairness in that he failed to
respond toconsider component integers of the applicant’s primary argument that her father’s Bangladesh passport was not genuine and was a proof that he was not a citizen of Bangladesh as the passport was obtained through the provision of false information and was a ‘bogus document’.…
3.The delegate’s finding that the indication of Chittagong as the applicant’s place of birth on her passport instead of her true place of birth, Jeddah KSA, was a ‘transliteration error’ rather than evidence that the passport was a ‘bogus document’ was irrational and illogical.
[1] Amended Application filed 28 March 2024.
BACKGROUND
The applicant was born on 9 June 1983 in Jeddah, Kingdom of Saudi Arabia. While the applicant states her citizenship status as being stateless, the Department of Home Affairs (‘the Department’) found her to be a citizen of Bangladesh.
The applicant first arrived in Australia on 24 July 2007 on a student (subclass 573) visa on a Bangladeshi passport. The applicant’s Bangladeshi passport stated her birthplace as Bangladesh and the applicant later claimed it to be a bogus document as it contained a ‘false identity’.
On 31 October 2008, the applicant was granted a student (subclass 572) visa (‘572-visa’). On 13 December 2008, the applicant departed Australia and ceased studying.
On 12 October 2010, the applicant returned to Australia as the holder of a 572-visa.
On or around 13 October 2010, the applicant claimed that her mother returned the Bangladeshi passports of the applicant and the applicant’s mother and brother to the Consulate General of Bangladesh in Jeddah, Kingdom of Saudi Arabia.
On 12 November 2010, the applicant applied for a Subclass 866 (Protection) visa (‘protection visa’) and was granted an associated Bridging visa A (subclass 010). In the application, the applicant claimed her nationality was ‘stateless’ and recorded her Bangladeshi passport as ‘false’. On this date the applicant’s mother and brother also applied for a protection visa.
On 26 July 2011, the applicant was granted a permanent protection visa.
On 28 August 2011, the applicant travelled to Bangladesh for approximately 10 months, returning on 9 July 2012.
On 6 July 2012, the applicant was married.
On 18 October 2016, the applicant was granted a return visa as a holder of a permanent visa with an expiry date of 18 October 2021.
On 17 July 2018, the application was issued a Notice of Intention to Consider Cancellation (‘NOICC’) of her return visa under s.109 of the Act for non-compliance with s.101(b) of the Act, it being alleged that the applicant gave incorrect answers in her protection visa application.
Between 20 July and 8 October 2018, the applicant’s representative provided a response and documentation in reply to the NOICC.
On 1 November 2018, the applicant departed Australia, prior to the cancellation of her protection visa.
On 15 November 2018, the applicant was notified her return visa had been cancelled under s.128 of the Act and was invited to show why the ground for cancellation does not exist or to provide reasons why the visa should not have been cancelled (‘s.129 notice’). On that same day, the applicant’s representative responded by email seeking the revocation of the cancellation of her return visa (‘revocation application’).
Between 15 November 2018 and 15 February 2019, the applicant’s representative provided 30 separate emails by way of submissions in reply to the s.129 notice.
On 2 January and 29 January 2019, the applicant’s brother provided responses to the s.129 notice.
On 18 February 2019, the applicant was notified of the delegate’s decision of the same date not to revoke the cancellation of her visa.
On 22 March 2019, the applicant filed for judicial review of the delegate’s decision.
DELEGATE’S DECISION
The delegate considered the decision of the original visa cancellation and set out the evidence for the cancellation before making a determination of the revocation application.
Original Visa Cancellation Decision Summary
The original decision cancelled the applicant’s return visa on the basis that there had been possible non-compliance in connection with her protection visa.
The delegate set out the legislative basis of the cancellation that, under s.128 of the Act, the Minister may cancel a visa when, amongst other requirements, there is a ground under s.116. The relevant ground identified by the original delegate was s.116(1)(d) of the Act, which stated, inter alia, that the Minister may cancel a visa if satisfied that, if they have not entered Australia or has entered but not been immigration cleared, the visa would be liable to be cancelled under Subdivision C of the Act. The relevant sections in Subdivision C, as identified by the original delegate, being s.101 of the Act that non-citizens must fill out applications so that there are no incorrect answers and, consequently under s.107A, that a current visa (i.e. the return visa) can be cancelled if there had been non-compliance in applying for an earlier visa (i.e. the protection visa).
In summary, the original delegate considered the applicant to have been a Bangladeshi citizen and not stateless as claimed in her protection visa application. Towards the applicant being a citizen of Bangladesh, it was found, inter alia, that:[2]
The original visa cancellation officer considered that based on the evidence the former visa holder’s father was a citizen of Myanmar prior to his departure from Myanmar in 1978 or 1979 or possibly earlier when he obtained Bangladeshi citizenship. He was able to obtain genuine Bangladeshi passports, travel to KSA and officially have the ability to register the former visa holder’s birth in that country. The original visa cancellation officer found that the former visa holder and her family were not living illegally in KSA but were legal residents in that country.
The former visa holder’s father travelled extensively while living in KSA and he held a senior management position with a very high salary indicative of someone who holds genuine documents and with the capacity to travel internationally on a genuine passport without the fear of detection by the relevant authorities. He renewed his Bangladeshi passports on numerous occasions and his Iqama was also frequently renewed to permit him to remain in KSA for over 30 years.
The former visa holder’s father also provided bank certificates issued on 28 and 29 June 2010 respectively with the address House-27/A Road 2 Block A Chandgao Chittagong, Bangladesh. The property at that address has been found to be owned by the former visa holder’s father indicating he was a documented Bangladesh citizen and not stateless as claimed. It is likely that the former visa holder’s father was originally a Myanmarese citizen with either family or business ties to Bangladesh enabling him to apply for Bangladeshi citizenship. It appears he held a senior position in KSA earning a larger than average wage, which would be unlikely for an illegal resident. This position also enabled his family members to have the opportunity to travel frequently and given the residential address listed in the former visa holder’s family’s passports returned to Bangladesh for unlimited periods of time.
These circumstances also permitted the former visa holder to attend some form of secondary schooling in KSA which further enabled her to complete a Bachelor of Science (Hons) at Limkokwing University in Malaysia between 2004 and 2006 which she declared on 1 November 2010 on the Form 80 Personal Particulars in support of her application for a Protection visa and for her to be eligible for the grant of a Student (subclass 573) visa to study a Master of Multimedia Design in Australia.
Further, the former visa holder’s family owns property in the Chandgao Residential Area, Chittagong Bangladesh as confirmed by an on-site visit. Based on country information, the original visa cancellation officer considered that owning a property in Bangladesh whilst operating a registered school on site would be something that only people with legitimate Bangladeshi citizenship status would be able to do.
[2] CB:766-767.
The original delegate considered the applicant to be a Bangladeshi citizen and not stateless as claimed on her protection visa application. The original delegate, in reaching this decision, had considered: that the applicant had made a number of travels overseas since the issue of her original student visa; that she travelled to Bangladesh after the issue of her protection visa for 10 months, where the length of the visit indicated she had a right to reside in the country and that this was evidence she was a Bangladeshi citizen; that the applicant and her brother were eligible to attend and complete their secondary education at a Bangladesh school in Saudi Arabia which would require evidence of their Bangladeshi citizenship; and the fact that the applicant, her brother and mother had all previously been issued with a No Visa Required endorsement (‘NVR endorsement’) for travelling to Bangladesh, indicating that the applicant had not committed passport fraud as the applicant had been recognised by the Bangladeshi authorities as a Bangladesh citizen.
In relation to the applicant’s compliance with s.101(b) of the Act for her protection visa application, the original delegate:
(a)At Question 19 of Form 866 relating to the applicant’s citizenship at birth, found that the applicant provided an incorrect answer as the applicant was not stateless as claimed but a citizen of Bangladesh;
(b)At Question 21 of Form 866 which asked if the applicant held any other citizenship or was a national of any other country, found that the applicant provided an incorrect answer of ‘no’ as she was a Bangladeshi citizen;
(c)At Question 22 of Form 866 which asked if the applicant had a right to enter or reside in another country, found that the applicant’s answer of ‘no’ was incorrect as she had Bangladeshi citizenship through her paternal lines and had a right to residency in Bangladesh;
(d)At Question 23 of Form 866 which asked how she lost her citizenship if stateless, the applicant’s claim, to be stateless based on being stateless in Myanmar, was found to be incorrect as she held Bangladeshi citizenship at the time she lodged her protection visa application;
(e)At Question 28 of Form 866 which asked for details of her current travel document, the applicant’s description of her Bangladeshi passport as ‘false’ was considered to be incorrect as the applicant was a Bangladeshi citizen and entitled to hold a genuine Bangladeshi passport; and
(f)At Question 19 of Form 80 which asked for details regarding her parents, the applicant’s description of her parents as ‘stateless’ was incorrect.
As such, the original delegate considered that the applicant had not complied with s.101(b) of the Act as she had provided incorrect answers to questions in her application and, on that basis, her return visa was liable to be cancelled under s.109 the Act. Consequently, having been satisfied that there was a ground for cancelling a visa under s.116, the original delegate cancelled the applicant’s visa pursuant to s.128 of the Act.
Revocation of Cancellation of Visa Decision
In considering whether to revoke the cancellation of the visa, the delegate considered whether or not there existed grounds for cancellation of the visa under s.116. Towards this, the delegate found, inter alia, that:
(a)The applicant was a citizen of Bangladesh at the time of submitting her protection visa application;
(b)The applicant’s father was born in Myanmar;
(c)The applicant father’s declarations on visa applications of being a Bangladeshi national and his extensive international travel support the finding that he was a citizen of Bangladesh and the holder of genuinely issued Bangladeshi passports;
(d)Taking into account information from the Department, country information, and the applicant’s submission, that it is likely the applicant’s father was the sole owner of the property in Chittagong in Bangladesh as a Bangladesh citizen and had funds to purchase the property due to his wage in Saudi Arabia;
(e)It was implausible, considering the number of times the applicant returned to Bangladesh, that Bangladesh authorities had not questioned her regarding her admission to have committed offences under Bangladeshi law. The delegate found that the applicant did not obtain a bogus or fraudulent Bangladeshi passport and subsequently returned the passport to the Bangladeshi authorities. Subsequently, the delegate did not accept as plausible that the applicant remains under threat of imprisonment;
(f)It was unlikely that the package sent by the applicant’s mother contained the applicant’s Bangladeshi passport. Rather, it was more likely the applicant did not provide her Bangladeshi passport to the Department to avoid examination of the document which would likely show that it was genuine;
(g)It was likely that the applicant departed Australia on 28 August 2011 using her Australian Titre de Voyage and entered Bangladesh using her Bangladesh passport on each occasion until 16 August 2013 and that the applicant’s claim that the NVR endorsement was obtained through her husband was unsubstantiated;
(h)It was likely the applicant obtained the NVR endorsement through her spousal relationship following 16 August 2013 by withholding details of her Bangladesh citizenship;
(i)As the applicant conceded that she ‘presented herself’ as an Australian national, the delegate did not accept that the nationality listed on her NVR endorsement was evidence she was not a Bangladeshi citizen. The delegate found that the NVR endorsement was processed and granted based on information the applicant had voluntarily provided to Bangladeshi authorities;
(j)The applicant was born in Jeddah, Kingdom of Saudi Arabia, and that the place of birth as listed on her Bangladeshi passport was incorrect. However, the delegate did not find that this eliminated other supporting evidence that she was a citizen of Bangladesh, rather that it was more likely the inclusion of incorrect place of birth details was ‘a transliteration error rather than evidence of a bogus document’;[3]
(k)The original delegate explicitly considered the applicant’s claim that her passport was a genuine document obtained through the provision of false information and that the original delegate found this claim to be incorrect;
(l)The applicant’s use of a Titre de Voyage following the grant of her protection visa was not, in and of itself, the fact which enlivened the ground for cancellation;
(m)The delegate was not satisfied that the applicant’s mother’s passport was a bogus document nor that her NVR endorsement was fraudulently obtained;
(n)The applicant’s claim that her mother obtained her NVR endorsement by way of a bribe to a corrupt employee at the Bangladesh High Commission in Canberra was without basis and made after-the-fact in order to support her claims to be a stateless individual;
(o)The plausibility that the applicant’s father provided a fraudulent or fraudulently obtained Myanmar passport to the Department was not material to the earlier finding that the applicant provided false information on her protection visa application; and
(p)The submission provided by the applicant’s brother relating to his own visa cancellation is not relevant to the decision before the delegate.
[3] CB:784.
In conclusion, the delegate stated:[4]
Having assessed the information provided by the former visa holder in her request for revocation and all other relevant information, I find the former visa holder provided the Department with incorrect information and therefore I am satisfied there was a ground for the cancellation at section 116(1)(d) of the Migration Act 1958.
[4] CB:787.
When assessing the reasons whether the cancellation should be revoked, the delegate found:
(a)Regarding the purpose of the applicant’s travel to and stay in Australia, the delegate considered it to be her intention to reside in Australia on a permanent basis and gave little weight to this consideration in the applicant’s favour;
(b)Regarding the extent of compliance with visa conditions, as the applicant held a permanent visa which had no attached conditions the delegate did not give consideration to this factor;
(c)Regarding the degree of hardship that may be caused to the applicant and any family members, the delegate noted that: the applicant’s husband was in Bangladesh awaiting the outcome of his partner visa; that the applicant’s brother and her uncle and their respective families were residing in Australia; the applicant would be unable to travel, work, study or reside in Australia if the cancellation was not revoked; similarly, if the cancellation was not revoked this would impact the applicant’s husband’s visa application; not revoking the cancellation would likely cause a degree of emotional and financial hardship to the applicant and her family; and, if the cancellation was not revoked, the delegate was not satisfied that the applicant was at risk of imprisonment for offences in relation to her Bangladesh passport or of becoming stateless. The delegate acknowledged that a decision not to revoke the cancellation of the applicant’s return visa would result in a degree of hardship, however, it remained that the applicant’s protection visa was granted on the basis of incorrect information and the applicant had limited ties to Australia given the period of time she had resided offshore after the grant of her protection visa; The delegate gave some weight in favour of the applicant under this consideration;
(d)Regarding the circumstances in which the ground for cancellation arose, the delegate considered the circumstance that the protection visa application included incorrect information enlivening s.116(1)(d) of the Act, and that the applicant’s non-compliance indicated an intentional effort to mislead the Department in order to facilitate the granting of a permanent visa. As such, the delegate gave this consideration no weight in favour of the applicant;
(e)Regarding the applicant’s past and present behaviour towards the Department, the delegate considered that the applicant had provided shifting explanations as to her true citizenship status and considered the applicant to have been uncooperative with the Department and departmental staff in this regard. Accordingly, the delegate gave no weight in favour of the applicant for this consideration;
(f)Regarding any consequential cancellation that occurred, the delegate noted that there was no information before it indicating that the cancellation of the return visa resulted in the consequential cancellation of any other visa. While the delegate did note that the cancellation would likely prevent the granting of the applicant’s husband’s partner visa, it would not result in the couple being separated. The delegate gave this consideration little weight in favour of the applicant;
(g)Regarding the legal consequence of the decision not to revoke, the delegate noted that the applicant would no longer be able to travel to Australia and would be ineligible to sponsor her husband’s partner visa, and gave this consideration little weight in favour of the applicant; and
(h)Regarding Australia’s international obligations, the delegate noted that assessment of non-refoulment obligations are not required when the applicant is outside Australia and there was no information that Australia’s other international obligations may have been impacted, so the delegate gave this consideration little weight in favour of the applicant.
The delegate had no information before it which indicated there were any other matters relevant to its consideration and stated its decision as follows:[5]
After considering the former visa holder’s response to the section 129 notice and all other relevant matters, including those set out in the procedural instruction, I have decided not to revoke the cancellation of the visa under section 131 of the Migration Act 1958.
DETERMINATION
Ground 1
[5] CB:790.
Submissions
The applicant claims that the delegate failed to exercise the jurisdiction under s.131 of the Act and failed to afford the applicant procedural fairness by failing to respond to component integers. The applicant states the ‘integers’ of the applicant’s argument in response to the s.129 notice which the delegate failed to consider were:
(a)That the applicant’s father had obtained his Bangladeshi passport by falsely claiming to the issuing authority that he was born in Bangladesh, when in fact he had been born in Myanmar; and
(b)That Bangladeshi law provides that a person born in Bangladesh prior to 1971 is a Bangladeshi citizen and, therefore, the applicant’s father would not have needed to have applied for Bangladeshi citizenship if his place of birth on his passport (being in Bangladesh) was true.
The applicant submits that, the delegate’s finding (that the applicant was incorrect in her answers that she was stateless) was based on the delegate also finding that she had obtained Bangladeshi citizenship jus sanguinis through her father (whom the delegate had found was a citizen of Bangladesh). The applicant argued that, if the delegate had considered and accepted the ‘integers’ of the applicant’s primary argument above, then the delegate would have disposed of his findings as the integers challenge the finding of the father’s Bangladeshi citizenship.
The applicant pointed to the following as instances where the integers were made to the delegate, but not considered:
(a)A submission email in response to the NOICC dated 23 July 2018;[6]
(b)The applicant’s statutory declaration dated 30 July 2018 in response to the NOICC;[7]
(c)The applicant’s representative’s main preliminary submissions in reply to the NOICC dated 1 August 2018;[8]
(d)The applicant’s representative’s main further submissions in reply to the NOICC dated 9 August 2018;[9]
(e)The applicant’s representative’s submissions in an email in reply to the s.129 notice dated 14 December 2018.[10] The applicant submits that this is where the NOICC submissions were incorporated into the s.129 reply; and
(f)An extract in an email from the applicant’s brother.[11]
[6] CB:279.
[7] CB:293.
[8] CB:342-4[8]-[9], 347[27], 355[50].
[9] CB:385-7[2]-[3].
[10] CB:629-31.
[11] CB:730.
The respondent argues in reply to this ground that the delegate was not required to consider the integers for the purposes of determining whether to exercise the power in s.131 of the Act. The respondent claimed that the integers were neither substantial nor clearly articulated and had no factual basis as there was no evidence that the applicant’s father had applied for or sought a Bangladeshi passport on the basis he was born in Bangladesh. Specifically in relation to the second integer, the respondent claimed its relevance was unclear in circumstances where the delegate found the applicant’s father was born in Myanmar. The respondent also argued, in any event, that the delegate was under no obligation to consider representations not made for the purposes of the exercise of the revocation power (i.e. s.129 notice).
Determination
A decision-maker only comes under an obligation to consider a claim if it is clearly articulated, or, if not clearly articulated, clearly arises on the representations. The representations must be regarded as extending at least to any material provided in response to the invitation to provide representations.[12]
[12] Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 173 at [68].
In M1/2021 v Minister for Home Affairs,[13] the High Court held:
… there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations … the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them.
It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(citations omitted)
[13] [2022] HCA 17 at [24]-[25].
In respect of determining whether a claim clearly emerges on the material involves the application of the following principles:[14]
(a)Such a finding is not to be made lightly;
(b)The fact that a claim might be said to arise from the materials is not in itself sufficient;
(c)In addition to clearly emerging from the material, the claim should also arise from established facts;
(d)When a party is unrepresented a court will be more willing to draw the line in that party’s favour; and
(e)Assessment cannot take place in a vacuum and consideration must be given to the manner in which the applicant’s claims were presented over time.
[14] ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44 at [61] (“ESQ18”) citing AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18].
As noted earlier, following the notification of the cancellation decision under s.128,[15] on 15 November 2018, the applicant sought a revocation of that cancellation decision,[16] followed by 30 emails of submissions and documents sent between 15 November 2018 and 15 February 2019.
[15] CB:425.
[16] CB:453.
In an email dated 30 November 2018, the applicant’s representative submitted to the delegate:[17]
We note the Identity Assessment Reports in the file for [the applicant] allege that her father … was both originally born in Bangladesh (as a Bangladesh citizen by birth) … However the same Identity Assessment Report also alleges that [the applicant’s father] was originally from Burma as a Burmese citizen..
…
Given that the Department has not made a determination as to the place of birth of [the applicant’s father], it cannot make a finding that he is a Citizen of Bangladesh.
[17] CB:533.
In an email dated 4 December 2018, the applicant’s representative submitted to the delegate:[18]
As [the applicant’s] Bangladesh Passport was obtained on the basis of false information that she was born in Bangladesh, the documents are definitively proven to be bogus documents under Bangladesh laws.
[…]
Although you have not accepted it, the information supplied about her parents [sic] citizenship and therefore her own claim to citizenship by birth was also false information.
[18] CB:535-536.
This email raises the issue that the applicant’s parents’ citizenship by birth was based on false information.
In an email dated 14 December 2018, the applicant’s representative submitted to the delegate:[19]
Further in relation to [the applicant] and her father …, Citizenship is normally presumed to follow from the country of birth…
[…]
In addition to all previous submissions, for the above reasons we submit the cancellation should be revoked.
[19] CB:629-631.
This email raises the issue of the applicant’s father’s citizenship as having presumed to have followed from the country of birth, which the Court notes the delegate found was Myanmar.
The email of 14 December 2018 additionally refers to all previous submissions. The Court finds this was not simply a reference to the submissions made in the previous emails after the notification of the cancellation decision, but an incorporation of the earlier NOICC submissions made by the applicant.
In an email dated 2 January 2019, the applicant’s brother submitted to the delegate:[20]
According to Bangladesh Citizenship Laws 1951; “a person born after the commencement of this Act, shall be a citizen of Bangladesh by descent if his father or mother is a citizen of Bangladesh at the time of his birth”.
[20] CB:661-663
Attached to that email of 2 January 2019, is a flow chart of ‘How to become a citizen under this new law’. That flow chart indicates that one of the ways in which citizenship can be obtained is jus soli ‘You were born on Bangladesh territory g Is one of your parents a citizen? g YES g Is the other a foreign diplomat posted here?’ g NO g YOU’RE A CITIZEN WITH ALL THE PERKS’.[21]
[21] CB:663.
It is unclear from the email whether citizenship by jus soli under the ‘new law’ is different to Bangladesh citizenship under the 1951 laws. The applicant was not born on Bangladesh territory,[22] and according to the flow chart and under the ‘new law’ would not have the right to citizenship jus soli. This, however, is not a matter raised by the applicant in the judicial review application. The same point is raised in an email from the applicant’s brother referred to at [51] below.
[22] Indeed, the delegate so found.
In an email dated 29 January 2019, the applicant’s representative submitted to the delegate:[23]
[23] CB:723-729.
[T]he Bangladesh passports were genuine Bangladesh passports obtained from the Bangladesh Government by brokers, ... also renewed… through brokers.
We refer you to the Protection Visa interview of [the applicant’s mother] …:
… it is not their passport it is a false passport which is arranged through broker
…[the applicant’s father] also having the same type of passport.
… The word ‘false’ as used by the applicants is a broad term which, in context, was intended to mean genuine documents, illegally obtained through the provision of false information.
… The family plainly claimed … that the Bangladesh passports were genuine documents obtained illegally through the provision of false information.
… The NOICCs are invalid … based on a failure to consider [the] … specific statement … that the Bangladesh passports were genuinely issued from the Bangladesh authorities, with false information.
In this email there is a reference by the applicant’s representative to her father’s passport, ‘the family’, applicants (plural) and passports (plural) as being bogus on the basis that they were issued on the provision of false information. The false information being the place of birth. The email also refers to the NOICC, this incorporating by reference the applicant’s earlier submission regarding the NOICC.
In an email dated 29 January 2019, the applicant’s brother submitted to the delegate:[24]
[24] CB:730-731
Angela quoted that: I consider the visa holder’s answer is incorrect because information available to the department indicated that although her father was born in Myanmar, he was a Bangladeshi citizen who held a legitimate Bangladesh Passport and a genuine KSA work permit/residence card which enabled him to work and live in KSA more than thirty years as well as obtain residence permits for his family members to reside there. The visa holder and her family were not the holders of false passports.
Page no 11:
I consider the the [sic] based on the evidence before me, it appears the visa holder’s father was a citizen of Myanmar prior to his departure from Myanmar in 1978 or 1979 or possibly earlier when he obtained Bangladeshi citizenship.
Scenario 1: Let’s say my father was born in Bangladesh not even in Burma. In that case my father doesn’t need to obtain Bangladeshi citizenship if my Paternal grand father/mother is Bangladeshi citizenship.
Scenario 2: If Father was born in Myanmar and granted bangladeshi [sic] citizenship then his place of birth should be the place where he was born in Burma not the bangladeshi [sic] address mentioned in passport.
If passport is obtained though naturalisation it appears like that
NATIONALITY : BANGLADESHI PLACE OF BIRTH : KOROR DIL
CITIZENSHIP ACQUIRED BY BIRTH:
NATIONALITY : BANGLADESHI PLACE OF BIRTH: CITTAGONG OR WHEREVER YOUR BORN IN BANGLADESH
…Getting a genuine booklet with correct information such as name, date of birth and providing false information in relation to birth place doesn’t make that passport genuine. Above mentioned scenario exactly stimulate whether my father’s passport was genuine or fraudulent. Even if someone intentionally provide minor false information in order to obtain passport that can’t be considered genuine passport by law … For my father … we were born in Myanmar not bangladesh [sic].
This email raises the issue of the applicant’s father’s passport being a bogus document on the basis of provision of false information as to the place of birth, and it also raises the issue of how Bangladeshi citizenship is granted.
In an email dated 30 January 2019, the applicant’s legal representative submitted to the delegate:[25]
[The applicant] fully disclosed ... that the passports were genuine Bangladesh passports, obtained and renewed from the Bangladesh authorities through brokers with the provision of false information.
[25] CB:733.
The delegate’s email of 31 January 2019, advised the applicant through her representative that:[26]
Any information you provided to the Department prior to a revocation decision being made is taken into account and assessed accordingly… reaching a revocation decision requires thorough consideration of all available evidence along with consideration of any additional information you may provide.
[26] CB:734.
As such, the applicant’s representative’s submissions in response to the NOICC were part of the material before the delegate which the delegate was obliged to consider.
In an email dated 31 January 2019, the applicant’s legal representative submitted to the delegate:[27]
[F]amily members were not entitled to those passports … the passports contain false information as to country of birth, and hence citizenship, for each family member.
[27] CB:735.
This email clearly raises the issue, by reference to ‘each family member’ that the applicant’s father’s passport was obtained by the provision of false information. Therefore, it also raises the issue of the applicant father’s citizenship, if based on the fact of having a passport, to also have been obtained by the provision of false information.
In an email dated 4 February 2019 to the delegate, the applicant’s representative refers to the allegations raised in the NOICC and the cancellation.
In an email dated 15 February 2019, the applicant’s representative submitted to the delegate:[28]
The allegation that the family are really Bangladeshi, even though being Rohingya from Myanmar, is we respectfully submit, unconscionable, as the department has been unable to point to any mechanism by which they are supposed to have acquired Bangladesh citizenship.
… that her father … [was] also born in Bangladesh as falsely indicated in those passports…
[28] CB:741.
The email clearly raises the issue of the applicant’s father’s passport containing false information and the issue of his citizenship.
In the NOICC submissions, the applicant expressed the integers of the claims as follows:
(a)In the email dated 23 July 2018:[29]
[29] CB:279.
[T]he Bangladesh passports of [the applicant’s father, mother and the applicant] … were obtained through the provision to the Bangladesh consulate of false information concerning country of birth, and hence citizenship of birth.
… these documents… are bogus documents… as they contain patently false claims to have been born in Bangladesh.
…the Bangladesh Citizenship Act indicates that any person born in Bangladesh prior to 1971 is a Citizen of Bangladesh by birth and thus would not be able to apply for naturalisaiton.
As the NOICC falsely alleges that [the applicant’s father] … went through a naturalisation process, and that [the applicant] … is a Bangladesh citizen by birth, and as it is blindingly obvious that all three the passports were obtained by providing contain [sic] false information about having been born in Bangladesh, which the Department of Home Affairs acknowledges is false information…
(b)In an email dated 31 July 2018:[30]
[30] CB:280
They obtained their fraudulent travel documents using fake identities by which they falsely clamed to have been born in Bangladesh and to have been born as Bangladesh Citizens…
…Neither she nor her parents have gone through any process of naturalisation to obtain Bangladesh Citizenship, and no such pathway is even available in Bangladesh law. The Bangladesh passports were obtained fraudulently through the provision of false information concerning their country of birth and hence citizenship…
(c)In a Statutory Declaration attached to the email of 31 July 2018, the applicant stated:[31]
[The passports] could not have been genuine because my parents were born in Burma as it was then and not in Bangladesh.
…My father was not a Bangladesh citizen by birth because he was not born in Bangladesh…
... neither my father nor my mother went through any naturalisation process to get Bangladesh Citizenship. Therefore also the passports were fraudulently obtained through the provision of false information that they automatically acquired citizenship at birth because of being born in Bangladesh...
I have been accused of being a Bangladesh Citizen from birth but this is a false allegation. My parents were stateless when we applied for protection and I was stateless from the day I was born till today.
[31] CB:291-295.
Taking into consideration the matters at [40] to [61], the component integers of the applicant’s primary argument that her father’s Bangladesh passport was not genuine and was a proof that he was not a citizen of Bangladesh as the passport was obtained through the provision of false information and was a bogus document clearly arise on the material.
The delegate found that the applicant’s father was born in Myanmar, not Bangladesh.[32] The delegate found that the applicant’s father undertook extensive international travel and had his Bangladesh passport renewed on a number of occasions. The delegate found that the applicant’s father declared that he was a Bangladeshi national in his Australian Tourist visa applications. It was on that basis, and taking into consideration his extensive international travel, that the delegate considered it unlikely that the applicant’s father would undertake such extensive travel if he had obtained a fraudulent passport, which according to the delegate, if it had been detected would have resulted in the loss of his legal residence in Saudi Arabi and his highly remunerated job in that country.[33] There is then a conclusion that the applicant’s father owned property in Bangladesh as sole owner as he was a Bangladesh citizen.[34]
[32] CB:780.
[33] CB:781.
[34] CB:782
The delegate found that the applicant had Bangladesh citizenship juis sanguinis or through bloodline because the applicant’s father was a citizen of Bangladesh at the time of her birth.[35] The delegate did not, however, at any point in time consider why and/or how the applicant’s father was entitled to and/or obtained Bangladeshi citizenship. The delegate was satisfied that the ‘original visa cancellation officer made a determination [the applicant’s father] … was born in Myanmar and held family and business ties to Bangladesh enabling him to apply for Bangladeshi citizenship’.[36]
[35] CB:784.
[36] CB:780.
The delegate did not grapple at all with the integers of the applicant’s claim, namely that the applicant’s father’s passport was obtained by the provision of false information and that the applicant’s father would not have needed to apply to acquire Bangladeshi citizenship if the false information on the passport as to his place of birth was correct. These matters are simply bypassed by the conclusions reached by the delegate that the applicant’s father’s passport was unlikely to be a fraudulent document due to his extensive international travel and his declaration.
Ground 1 is made out.
Ground 3
Submissions
The applicant claimed that the place of her birth on her passport, being Chittagong rather than Jeddah, was proof that her passport was false and that she was not a Bangladeshi citizen. The applicant claims in ground 3 that the delegate’s accepting that the applicant was born in Jeddah, but then finding ‘…it is more likely the inclusion of the incorrect place of birth details is a transliteration error rather than evidence of a bogus document’[37] was irrational and illogical on its face. The applicant submits that ‘Chittagong’ and ‘Jeddah’ are not names for the same place expressed in different languages, and that a ‘transliteration error’ as the explanation for the obvious irregularity was the best the delegate could do.
[37] CB:784[8].
The respondent argued that this ground should be rejected on the basis that the delegate’s conclusion, that the applicant was a citizen of Bangladesh when she completed her protection visa application, was supported by reference to the delegate’s conclusions about her father’s citizenship. In respect of what was meant by ‘transliteration error’, the respondent stated that it was not entirely clear what the delegate meant by this phrase, but that it was sufficiently clear that the delegate had concluded that the passport had been regularly issued and not issued as a consequence of the applicant providing false information.
Determination
The Court notes the matters at [40]-[61] above. The applicant maintained throughout the representations made to the delegate (which incorporated the NOICC submissions) that her Bangladesh Passport was based on the provision of false information, being her stated place of birth, and that it was a bogus document on that basis.
The delegate found that the applicant was born in Jeddah, Kingdom of Saudi Arabia, not Chittagong, Bangladesh, despite her passport clearly stating so. This was the same place of birth noted for her father, her mother, and her brother on their Bangladeshi passports. Such information was false.
The Court further notes that the delegate did not, at all in the reasons for decision, deal with the similar issue of the applicant’s father’s passport having found that the applicant’s father was born in Myanmar, in circumstances where his passport indicated that he was born in Chittagong, Bangladesh. This matter was completely ignored by the delegate.
Notwithstanding the delegate’s finding about the applicant’s place of birth, the delegate found that ‘it is more likely that the inclusion of incorrect place of birth details is a transliteration error rather than evidence of a bogus document’.[38]
[38] CB:784.
‘Transliterate’ means to change letters or words into corresponding characters of another alphabet or language.[39]
[39] The Macquarie Dictionary, 3rd Edition.
Jeddah to Chittagong cannot be a transliteration error.
The finding that the inclusion of Chittagong, which was incorrect, as the applicant’s place of birth on her passport being more likely a transliteration error rather than evidence of a bogus document is a conclusion that is irrational and illogical.[40] This is particularly the case where the applicant claimed consistently that her place of birth as noted in passport was wrong, and was false information supplied by her and/or her parents for purposes of getting a passport.
[40] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135].
Ground 3 is made out.
Utility
Whilst orders quashing the delegate’s decision will not revive the visa, they will allow the applicant to reapply for the same visa.[41] As such, there is utility in the Court making orders as sought by the applicant having found that jurisdictional error has been made out.
[41] Applicant’s Submissions filed 26 March 2024 at [62].
The Court so orders.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 18 June 2024
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