Kio (Migration) [2023] AATA 4775 (17 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Phun Lian Bawi Kio
Ms Hlawn Mawi Dar Thang
Mr Bosco Kio
Ms Lily Mawi Kio
Mr Richard Thawm Lian Thang Kio
Ms Julia Bawi Nei Khim KioREPRESENTATIVE: Ms Siobhain Galea
CASE NUMBER: 2205179
HOME AFFAIRS REFERENCE(S): BCC2018/3884663
MEMBER:Denis Dragovic
DATE OF ORAL DECISION: 17 October 2023
DATE OF WRITTEN DECISION: 19 October 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Statement made on 19 October 2023 at 12:22pm
CATCHWORDS
MIGRATION – cancellation – identity – departmental assessment of cohort of applicants suspected of identity fraud – names given to agency in third country not birth names, but names known by in community plus required family name – distrust of agency – application to change names in Australia, to add birth name – no documentation required to be provided, or actually provided, to state registry – children’s names in citizenship applications includes community and birth names – different versions of names does not necessarily lead to doubting identity – wife’s and oldest child’s residence and education as shown on social media – self-reporting and lack of knowledge and care in creating profile – years of schooling and dates of work not relevant to identity – wife failed to include name of one sibling in application – name included incorrectly as non-dependent child – country information – lack of documentation, communication and functioning government, and armed conflict – applicant parents’ limited education and understanding of requirements and processes – real state of satisfaction required, based on credible and cohesive evidence – little basis to form view that grounds exist – members of family unit – consequential cancellation of wife’s and children’s visas with no jurisdiction to review – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 116(1AA), 119, 140, 427(3)(b)CASE
Zhao v MIMA [2000] FCA 1235Any 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 which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 30 March 2022 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1AA) on the basis that there appeared to be a series of inconsistencies of names along with dates and places relevant to the first named applicant and his family.
The visas of the second through sixth named applicants were also cancelled but under a different provision, namely s 140 which arises…
Continue reading Kio (Migration)
Sign in free to access the full text
- AGLC
- Kio (Migration) [2023] AATA 4775
- Case
- [2023] AATA 4775
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether the grounds for cancellation under section 116(1AA) were made out, specifically whether the Minister was satisfied as to the visa holder's identity. The NOICC raised several points of concern, including discrepancies in the applicant's name, the names of his children, his claimed place of birth and residence, his claimed period of employment as a farmer, and his claimed years of primary education. Further concerns were raised regarding the second applicant's (the wife's) identity, including a potential instance of her adopting another person's identity and conflicting information on social media about her education and place of origin.
The Tribunal found that many of the concerns raised by the delegate lacked a substantial evidentiary basis or were explained by the applicants in a credible manner. For instance, the Tribunal noted that the applicants' inability to provide identity documents from Myanmar was due to ongoing conflict and a lack of functioning government in their home region. Crucially, the Tribunal contacted the Victorian Registry of Births, Deaths and Marriages and confirmed that no Myanmar documents were submitted for the applicant's name change, undermining the delegate's assumption that such documents had been provided. Discrepancies in children's names and the applicant's educational history were found to be minor or irrelevant to the core question of identity. Concerns arising from social media posts were also discounted, with the Tribunal emphasising the unreliability of self-reported information and the potential for children to create incomplete profiles. The Tribunal concluded that there was no credible and cohesive evidence to support a real state of satisfaction that the grounds for cancellation existed.
Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the first named applicant's visa. The Tribunal noted that it had no jurisdiction with respect to the other applicants.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
When the question of why the applicant and his family do not have any identity documents was put to them at the Tribunal’s hearing, they answered that they had documents when they were living in Myanmar, specifically an identity document which was pink and a household list. That the identity document was pink indicates that they were full citizens of Myanmar, which has a three-tiered citizenship system.[1] [1] >The applicant explained that since leaving his hometown he has not been in touch with anyone and that is one reason why he has been unable to obtain any copies of documents. In addition, he explained that there is no telephone or internet to his hometown, that his house was burned down and that it has been affected by the war and many people have fled. A conflict map of the fighting in Chin State since July 2020 shows a number of incidents in Falam, the sub-district closest to the applicant’s hometown. The detailed conflict map explains that for the north-west region of Myanmar, ‘The coup tipped the balance towards armed conflict. This theatre features a high tempo of activity by People’s Defence Force (PDF) units and a revitalised ethnic armed organisation (EAO).’[2] I accept that due to conflict since the coup and a ‘high tempo’ of activity in the vicinity of the applicant’s village that he and his wife have been unable to be in contact with their relatives who may have otherwise been able to help them access some form of documentation that shows their identity.[2] >The witnesses provided some further information. Jacob Thang said that it is very unlikely that people from rural Chin State would have birth certificates. He said that when people left Myanmar some did so carrying their identity documents, some left them behind and some had them taken by the brokers (people who help people cross the border out of Myanmar). Robert Ngun Sang said that getting new documents is impossible because there isn’t a functioning government in Chin State. He said that there were no official offices and departments operating. Even if the situation was different, he said that the relevant department doesn’t have good record keeping. Rual Lian Thang noted that in the 2014 census 80% of the people in Chin State were found to be living in rural communities and rural communities don’t have proper documents. He affirmed the applicants’ statements that it is impossible to contact family as most townships in Chin State don’t have internet or telephone communication. He said that travelling to Hakha, the capital of China States, is harder than going to neighbouring India. He also noted that to replace an existing identity card you have to personally go to the town that you were registered in. Piang Lilian said that he came to Australia as a skilled migrant. He said that he tried to get a new identity card in 2018 through his sister who was living in Myanmar. She went to the relevant office, but they told her that since he had left the country they couldn’t issue an ID card. Piang said that this was especially the case if you left the country illegally. He noted, though, that if you have the old card, it’s easier to have it replaced. He also warned that even with household lists when a household member leaves the household his/her name is crossed out. In addition, Piang noted that he has known the sister of the second named applicant since his time in Myanmar. He did not know the second named applicant as she would have been a toddler at the time that he left the town at the age of 16 years.Country information in the form of the DFAT report notes that separate to the conflict related challenges of obtaining an identity document:Chin living both within and outside of Chin State reportedly experience discrimination in accessing government services, including when procuring identity documents.[3][3] DFAT Country Information Report Myanmar – November 2022 – Version 2* at [3.16]With regards to the impact of the recent civil war DFAT notes that:PDF attacks on ward administration offices, office closures and a general reluctance to interact with representatives of the regime mean many people have been unwilling or unable to apply for new documents or renew existing ones since the coup.Noting the evidence of the witnesses alongside DFAT reporting I accept that the applicants would have been unable to obtain any identity documents from the Myanmar government since the NOICC was issued. But given that there is no reason to doubt the claims of the applicant and his wife along with Mr Piang Lilian who has known the family, I accept their narration of how and why two versions of their names are known to the Australian government. That there are two versions of their name does not necessarily lead to doubting their identity. (b) Requirements of Victorian Registry of Births, Deaths and MarriagesThe delegate determined without any identifiable evidence that it is a requirement of Victorian Registry of Births, Deaths and Marriages that applicants desiring to change their name provide documents that confirm their identity. The delegate then leapt to the conclusion, ‘this indicates the Registry had requested, and that you had provided them.’ This is a wholly unsupported conclusion. That the Registry required them does not mean that they provided them. The applicant wrote in his statement to the delegate in response to the NOICC that he did not provide any.Drawing on the powers to summons documents under s 427(3)(b) of the Migration Act the Tribunal wrote to the Victorian Registry of Births, Deaths and Marriages requesting copies of any Myanmar documents which were submitted in support of the requested name change.The Tribunal received a response on the 11 October 2023 from the Data Coordinator of the Victorian Registry of Births, Deaths and Marriages in which he wrote, Upon reviewing the paperwork that was submitted as part of Mr KIO’s Change of Name application, I could not find any paperwork or supporting documentation from Myanmar that may have been submitted with regards to the applicant’s identity. Judging from the material available to this Tribunal it appears that no one in the Department bothered to contact Victorian Registry of Births, Deaths and Marriages. This is of great concern considering the importance of a decision to cancel an entire family’s visa. Based upon this evidence I am satisfied that no Myanmar government issued documents were submitted to the Victorian Registry of Births, Deaths and Marriages. As such there is no basis upon which the granting of a name change by the Victorian Registry of Births, Deaths and Marriages can be used as evidence to question the applicant’s identity. (c) Name change of the two eldest childrenThe delegate identified the change of names of the applicant’s eldest children as a part of the reason that left him unsatisfied as to the identity of the first named applicant. The delegate noted that in the citizenship application the applicant had listed his children as:a.John Bosco Van Thawm Lal KIO b.Emily Bawi Rem Mawi KIO The delegate noted that these names are different to the names listed in the visa application which were:a.Bosco KIOb.Lily Mawi KIOTo be clear, the delegate was questioning why the applicant had not included the entirety of his children’s name in the visa application. It is difficult to understand how this is related to the matter at hand, namely the identity of the applicant. That the applicant had written Bosco KIO instead of John Bosco Van Thawn KIO does not lead into question the identity of either the father or the son without some clear reasoning explaining how it would.(d) The applicant’s eldest son’s Facebook pageThe delegate finds that the applicant’s oldest son had established a Facebook page at least since September 2013 which included references to the son being from Bangalore, India, and that he went to Don Bosco School, in Alaknanda, New Delhi, India.In notes available to this Tribunal, it is recorded in the Departmental electronic system that the Department contacted the Don Bosco School in Alaknanda. The response was as follows: Principal Richard Edmond (Don Bosco Bangalore) at 098805 83739 at 2:00 pm. He confirmed that they have checked their school records (old and new) and they do not have any record of student by this name or matching parents name ever studied at Don Bosco Bangalore. He also mentioned that they do not have students from Myanmar studying in the school.)It is very concerning that there is evidence before a delegate of the Minister which clearly disproves an element of concern regarding the identity of the applicant, namely his son’s Facebook claim to have studied in India, and yet it remains a part of the basis upon which the visa was cancelled. At the hearing the applicant’s son explained that he was 9 or 10 years old at the time that the account would have been established and that when he had set up the account he just clicked through on a lot of the fields without thinking. I accept the applicant’s claims. I accept what should be apparent to any decision maker, namely that children setting up Facebook accounts may not necessarily provide complete information and that one should act with great caution before placing any weight on self-reported claims found only on Facebook. This a highly concerning approach taken by a delegate of the Minister which is in effect to make a finding despite evidence that directly contradicts it being available to the delegate. Noting that the call to the principal confirmed that there was no student who studied at their school and recognising that not everything that is posted on Facebook is fact, I find that the basis upon which the delegate cancelled the applicant’s visa is wholly lacking any merit and furthermore it should serve as a red flag to the Department for wider consideration.(e) Concern over evidence of residency in Tahan The applicant and his wife’s home village and place of residency were listed as Zul Tu, Falam township, Chin State. The delegate noted, though, that in other documents the place of birth for the two oldest children was listed by the applicant as Tahan, Sagaing, (visa application) in one instance and Kale township (UNHCR registration), Sagaing, in another. Based upon this evidence the delegate suggested that this indicated that at least the second named applicant, the mother of the children, had lived in Sagaing region which does not support the claim that the parents had only lived in Zul Tu village. As was explained by the applicant’s representative and the applicant in his statement in response to the NOICC, Tahan and Sagaing are minutes apart, the former is a satellite town of the latter. As such no weight should be placed on there being two different names. The applicant in his response to the NOICC explained that the reason why his wife had given birth there was, because my wife had issued with her labour/birth and we travelled to a relative’s town to get medical support. The reason why I said that we only ever lived in Zul Tu village is because that is the truth – whilst we travelled for my wife to give birth in Tahan, we never “resided” there, it was just for the purpose of giving birth.At the hearing the applicant’s wife explained that Tahan is about 4-5 hours’ drive away from Zul Tu by bus. She said that she went there to give birth as she had problems during her pregnancy. She explained that in Falam there is a clinic, but Tahan had a better hospital. She chose Tahan over other larger towns because she had family there who could support her after her birth. It was claimed at the hearing that there are no restrictions across state borders with regards to accessing health care.This is a plausible answer. Without any evidence to the contrary, I accept the applicant’s response. As such I place no weight on the delegate’s concerns regarding the applicant’s identity arising from his two children being born in another state of Myanmar.(f) The dates that the applicant was a farmer The delegate identified an inconsistency in the dates for which the applicant had claimed to have worked as a farmer. The first named applicant had claimed to have been a farmer from 1989 to 2008 whereas in another form it was between 1994 and 2008.This is one of the more concerning aspects of the delegate’s decision. Whether the applicant was a farmer from 1989 to 2008 or from 1994 to 2008 is on its own wholly irrelevant to the question at hand which is whether the delegate is satisfied with the applicant’s identity. If there was some alternative claim of activities between 1989 to 1994 such that it led into question the applicant’s identity, then some concerns may be justified but none are identified by the delegate, and none arise from the material before me.As far as the discrepancy itself, both may well be true in that one could include his time working as a farmer under his parents and the other as an adult. For these reasons, I place no weight on the delegate’s identification of competing dates of when he started farming in regard to his identity.(g) The number of years the applicant spent in primary school The first named applicant wrote in the visa application that he had completed four years of primary school education whereas the delegate identified country information that indicates that five years of primary school education is compulsorily. The first issue with this approach is that the reference to the link provided by the delegate is a live link that provides current educational requirements. The applicant attended school approximately 40 years ago. Myanmar was a very different country then. Without some contemporaneous report or scholarship that describes educational approaches in what was then Burma, minimal weight should be given to the current government’s educational standards. Nevertheless, the applicant acknowledges that five years was the standard even forty years ago but noted that he didn’t complete five years because his parents were struggling, and they couldn’t afford to have him at school. This is an unremarkable statement which I have no issue accepting. The only other argument identified by the delegate was as follows, Furthermore, you claim you were born in 1971, which means according to this open source information it was compulsory for you to have attended school between the years 1977 and 1982—this is also not consistent with the years you claimed to have studied at primary school. This indicates you fabricated your claimed education history.That someone wrote the year their education began some forty years ago as 1977 instead of 1978 cannot reasonably be used to indicate that the person fabricated their education history. Having considered the reasoning adopted by the delegate and not being convinced nor finding any reason that arises from this inconsistency myself, I place no weight with regards to whether it would have any impact on the matter at hand which is the identity of the applicant.(h) The second named applicant’s name and identityThe delegate had information before them that a person registered under the same name as the second named applicant travelled from Malaysia to the United States in November 2013, two months after the second named applicant had left for Australia. The delegate concluded that from this that the second named applicant may have adopted another person’s identity while in Malaysia. This theory was supported by the second named applicant having a Facebook page under the name of Agnes Mawi. At the hearing the second name applicant explained that Agnes is her Christian name and secondly, that for security reasons she did not use her real name. This response is convincing. The delegate also references the name Hlawn Mawi Dar Thang as being the name used in the protection visa application form, but I presume this to be an inadvertent error on the part of the delegate, as this was not and has not been the name used by the applicant in any application form. That there was another person who used the same name, date of birth and parent’s names, as the second named applicant to depart Malaysia after the she had departed Malaysia is of concern, but there are three possibilities. The first and most unlikely is that it is a coincidence that there are two people with the same biodata. The second is that the applicant in this matter adopted a false identity and the third is that the person in the United States adopted a false identity. The delegate chose to embrace the second possibility based solely on the use of a different name in a Facebook account. As noted earlier, it is unwise to place much weight on information self-reported on Facebook accounts. Furthermore, the explanation given by the applicant’s wife that she did not want to use her real name having fled a country for fear of persecution, is wholly understandable. That she used her Christian name, again, is wholly understandable. The explanation given by the applicant’s wife regarding this incident is as follows:I have never travelled to the United States of America.When registering with UNHCR in Malaysia, I also registered with a number of other Non-Government Organisations providing services to [Specified people].I am unaware of how another person registered with UNHCR Malaysia with the same name, date of birth and parents’ names as myself was able to travel to the United States under this identity around 29 November 2013.As I travelled to Australia on 19 September 2013, I believe it is possible that another person may have assumed my identity after my departure and taken advantage of my registration with other organisations to travel to the United States.This is a plausible response to a scenario in which the applicant is arguing that it is her biodata and that someone else adopted hers. Without evidence to suggest otherwise, very little weight can be placed on the fact that someone else has the same biodata.(i) The second named applicant’s reference to having studied in Mandalay University and being from Yangon. The delegate identified a former Facebook page of the second named applicant as claiming to have graduated from Mandalay University and being from Yangon.This evidence is directly in contradiction to the claims that both of the adults have very limited education and are functionally illiterate. The second named applicant responded to this issue in her written response to the NOICC acknowledging that she did make that claim in her Facebook profile but that it was done because of her intention to not use her correct personal details. At the hearing she said that she didn’t know how to use Facebook. She said that others had helped her to set up the account and that she now only knows how to post pictures but nothing else.There is no further evidence before me that suggests the second named applicant is a graduate of Mandalay University or that she is from Yangon. The information garnered from Facebook appears inconsistent with the presentation of the second named applicant’s claims at the hearing, specifically, she did not appear to have completed university. I was instead convinced that her presentation of her circumstances aligned more with someone with limited education. I note as mentioned above that the witnesses commented how the information of the applicant and the second named applicant often did not make sense even in their own language. I refer back to previously highlighted concerns about relying upon self-reported information found on Facebook and my own assessment of the second named applicant’s ability to articulate her evidence at the hearing and conclude that the second named applicant did not complete university and also that she is not from Yangon. (j) The second named applicant and her sixth siblingThe delegate noted that the second named applicant did not list her sixth sibling, Van Nei Sang who was born in 1980/81 and was at the time living in Denmark, in the visa application form. The delegate did not explain how it was relevant to the question of the applicant that his wife’s sixth sibling was not included alongside five other names of family members none of which is in dispute. In the second named applicant’s response to the NOICC she acknowledged that she has a sibling named Van Nei Sang but she wrote that his name was included in the visa application and that she is unsure why the Delegate believes that he was not declared.In reviewing the single page form that asks for the relatives of the main applicant’s partner, there is a section for the partner’s brothers and sisters, in which five are listed. There is also a section headed, ‘Your partner’s non-dependent children’ under which Mr Van Nei Sang was listed along with the country where he is living as being in Denmark. Considering that the applicant’s wife, the second named applicant, was born in 1974 and Mr Van Nei Sang is claimed to have been born in 1980, it is clearly an error that his name was placed under the partner’s non-dependent children column. It appears that the delegate either did not look further down the page to see Van Nei Sang’s name or alternatively, it is possible that the delegate thought that the placing of Van Nei Sang under ‘Your partner’s non-dependent children’ was somehow relevant, though it is unclear how. Either way, there is no evidentiary basis to place any weight on this error when considering the first named applicant’s identity. Consideration of whether there are grounds for cancellationIn considering this matter, it is timely to be reminded of what the level of satisfaction the decision maker is required to reach when considering cancellation. In Zhao v MIMA, the Court stated:The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[4] [4] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32]In this instance, not being satisfied to the identity of the applicant cannot be based upon theories or suppositions or lingering doubt. It requires credible and cohesive evidence of competing or alternative identities that leave the Tribunal unable to be satisfied of the visa holder’s identity. To consider whether I am satisfied by the applicant’s identity I note what is meant by the concept of identity. The National Identity Proofing Guidelines of the Department of Home Affairs notes that, ‘A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.’[5] The Department’s policy advice manual explains:The identity of an applicant is established using three pillars: biometrics, documentation and biography (refer to section 3.10.2 - Biometrics, documentation and biography). To reach a level of satisfaction that an applicant's identity is or is not as claimed, a decision maker should have regard to the consistency of information provided in relation to all three pillars.While applicants should provide biometrics, and may provide documentary evidence of identity, nationality or citizenship, consistent biographical information is important in assessing the applicant's identity. It is, therefore, essential that the three pillars of identity are considered in reference to one another, so a complete picture can be built.[6][5] Department of Home Affairs, National Identity Proofing Guidelines, 2016 at 2.1.1 [Information deleted]Documentation includes all documentary evidence relating to an applicant's identity, nationality or citizenship. Biography is the life story of an applicant including explanations of where they lived, why and how they travelled, along with other relevant elements of their story. Biometrics includes personal identifiers such as facial image and fingerprints.[7] Importantly, identity is not a slightly different or incomplete recording of a name or different dates when someone started schooling or farming. [7] [Information deleted]The contents of the NOICC that outlined the basis of the cancellation is governed by s 119 of the Act which states that ‘the Minister must notify the holder that there appear to be grounds for cancelling it and (a) give particulars of those grounds and of the information (not being non‑disclosable information) because of which the grounds appear to exist.’I have attempted to identify the particulars included in the NOICC by listing them from (a) – (j) and engaged with each including taking into considering the reasoning adopted by the delegate. While I have engaged with the reasons provided by the delegate my decision is de novo in that I am not obliged to rebut the delegate’s reasoning. But as noted earlier, I have included references to the delegate’s reasoning to ensure that no stone is left unturned when considering whether each of the particulars identified are relevant to the power that are being exercised. Regrettably, the delegate in this instance on numerous occasions did not explain how some of the particulars were relevant to the question of the identity of the first named applicant, as described in the Department’s own Guidelines, and on the face of the material provided some of the concerns identified are clearly not relevant. Furthermore, it is disappointing to see the excessive reliance upon self-reporting in Facebook without additional corroborative evidence for what is a very serious decision. I have given weight to each of particulars identified in the NOICC listed in this decision from (a) – (j). Sometimes, even limited individual weight when considered cumulatively can be sufficient to be satisfied that grounds have been made out, but in this instance this is far from the case. There is nothing of substance that can even remotely be considered a basis upon which a decision maker can reach a real state of satisfaction that the grounds are made out, which in this case would mean that there is doubt over the identity of the first named applicant. For these reasons, I am not satisfied that the ground for cancellation in s 116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelledDECISION100. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s visa.101. The Tribunal has no jurisdiction with respect to the other applicants.Denis DragovicDeputy President