1703271 (Refugee)

1703271 (Refugee) [2017] AATA 981 (1 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703271
COUNTRY OF REFERENCE:                  Stateless
MEMBER:Rodger Shanahan
DATE:1 June 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 01 June 2017 at 8:35am

CATCHWORDS
Refugee – Cancellation – Protection visa – Iraq – Provision of incorrect information – Iraqi citizen – Not a stateless Bidoon from Kuwait – Genuineness of Iraqi identity documents – Two return trips to Iraq

LEGISLATION
Migration Act 1958, ss 97, 99, 101, 107, 109, 140
Migration Regulations 1994, r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the visa holder had given incorrect answers to certain questions in his protection visa application form 866C. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 1 May 2017 to give evidence and present arguments. It was held at the same time as that of his [brother]. The Tribunal also received oral evidence from [the] applicant's Son. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
Did the notice comply with the requirements in s.107?
Section 97 of the Act makes it clear that the Protection Visa application falls within the definition of an application form, and section 99 also makes it clear that information given in writing or orally in the application form or at interview is taken to be an answer for the purposes of the Act. I am satisfied that the Notice of Intention (folio 51) shows that the particulars of the non-compliance in the form of incorrect information given in writing as part of the statutory declaration in support of the visa application were explicitly stated at paragraph 14, and the details of the particulars discussed at paragraphs 8-12 of the Notice.
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 contained within that Section of the Act.
Was there non-compliance as described in the s.107 notice?
The applicant arrived by boat [in Australia] [in] November 2011 as an irregular maritime arrival and made claims to be a refugee. As part of those claims he stated that he was stateless (Bidoon) and a former habitual resident of Kuwait. He claimed that he was discriminated against because of his statelessness, and attended a rally for Bidoon rights in Kuwait [in] February 2011. During this rally he was detained by state security forces and tortured by them; he was told that if he participated in any further rallies he would be burnt alive. His details were now known to the state security forces.
[In] June 2012 the applicant lodged a protection visa application. On the basis of the information provided by the applicant in his refugee assessment and Form 866 application, the applicant was found to meet the criteria for a protection visa which was granted [in] July 2012. The applicant’s son was granted a protection visa as a member of the applicant’s family.
As discussed below, subsequent information indicated that the applicant had not provided correct answers in the application for a protection visa, relating to his claimed lack of nationality. [In] December 2012 the applicant lodged a sponsorship application for his [wife] (and [children]) for a partner visa. In support of this visa application the following documents were provided to the Department:
a.The applicant’s Iraqi personal identity card (listing his place of birth as Basra, Iraq),
b.The applicant’s [children’s] Iraqi personal identity cards (listing a place of birth as Basra, Iraq)
c.The applicant’s [children’s] Iraqi citizenship certificates, and
d.Iraqi passports for the applicant’s wife (issued [in] 2010 – folio 9 refers) and [children] (all issued [in] 2012).
Subsequent to the grant of the protection visa, DIBP records indicate that the applicant departed Australia and travelled on:
a.[a date in] November 2012 (for 9 months to Iraq)
b.[a date in] September 2014 (for 11 months with most time spent in Kuwait)
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 in the following respects regarding his application for a protection visa:
a.With respect to Question 20 ‘Your citizenship at birth ?’ the applicant answered ‘stateless’. The Notice stated that this was incorrect because he possessed an Iraqi identity card which is only issued to Iraqi citizens;
b.With respect to Question 22 – ‘Do you hold any other citizenship or are you a national of any other country ? You ticked ‘No’. The Notice stated this was incorrect as the visa holder’s Iraqi National Identity card indicated he was an Iraqi citizen;
c.With respect to Question 23 – ‘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 ?’ the visa holder ticked ‘No’. The Notice stated this was incorrect given it was highly likely he is an Iraqi citizen and does have the right to enter or reside in Iraq. Departmental records also showed that the visa holder had travelled to Iraq in November 2012 and Kuwait 2014. His residence in Iraq for a period of nine months further supported the belief he was an Iraqi citizen; and
d.With respect to Question 43 – ‘Why did you leave that country ?’ the visa holder stated ‘please refer to my attached statement’ (the relevant parts of the statement were quoted in the Notice). The statement said the visa holder ‘took part in a rally with other stateless Bidoon people…the aim of this rally was to be permitted to have citizenship.’ The visa holder further stated that as a stateless Bidoon he had no civil rights. Given he appeared to be an Iraqi citizen this disputed his stateless claim.
The visa holder’s [son] with whom he had travelled to Australia was likely to be an Iraqi citizen through descent and would be afforded the same rights and privileges as all Iraqi citizens.
The particulars of the applicant’s claim and their relationship to the visa cancellation notice were then discussed with the applicant.
Discussion
The applicant was asked about a change of name that he had undertaken (not folioed) and he claimed that his was a common name and he selected the name of [an artist]. Asked again what the motivation for changing his name was, he claimed there were so many people with his name. Asked why he chose to change it in August 2016, he claimed this was the date he chose. Asked if he was aware that his visa was at risk of having his visa cancelled prior to changing his name, he claimed that he didn’t. He claimed he first knew before Christmas 2016 via letter.
Asked if he had ever been questioned by DIBP officials, such as when he returned to Australia, he agreed that he was only asked where he had been when he returned in 2015. Asked if he had been questioned in relation to visa applications for his family in Iraq, he claimed that he hadn’t. He did say that when he was traveling he was contacted by the Australian Embassy in [Country 1] in 2013, who asked if [name deleted] was his son. His wife was asked about her children. He had discussions with DIBP officials who asked why he had Iraqi citizenship even though he was a Bidoon – this was in 2013. After 2013 he had never been contacted, but then said to be honest he could not recall.
He was asked why he self-referred to [a welfare agency] in October/November 2016, despite having been in Australia for four years. He claimed that he was feeling down, psychologically and emotionally. Asked where [town name] in Kuwait was, he claimed this was its name in the 1970s. It was currently known as [a different name].
It was put to him that he had claimed the reasons he left Kuwait were because he was a stateless Bidoon, that he was denied his civil rights and while participating in a peaceful rally he was detained and tortured in prison, then departed Kuwait to come to Australia. He was asked why he made the statements he did on his application, and he claimed that he made them because they were true. He had become tired of being a Bidoon and someone organised a protest that he joined.
It was put to him that subsequent to his being provided a protection visa adverse information was received about his claim. He had lodged a sponsorship application for his wife and [children] [in] December 2012. In support of it, Iraqi documents were provided that included his Iraqi personal ID card and for his children and Iraqi passports for his wife and [his] children. This would indicate that he was an Iraqi citizen and not stateless, and had not been stateless at the time he made his application for a protection visa. This in turn meant that he would not have attended a rally for Bidoons and would not have been detained or tortured.
He claimed that the was truthful in everything he said. When Kuwait was invaded in 1990 foodstocks were low and he was told by his father to get into his car and drive to Iraq (Basra) to get some basic foodstuffs. He purchased these items from a shop, and the shopkeeper asked him how he came. The applicant said he was Iraqi but had no citizenship – the shopkeeper offered to get him an Iraqi document through a friendly Iraqi official that would allow him to get through Iraqi checkpoints without him being stopped.
He stayed at a hotel while the shopkeeper took his photo and, as far as he knew, obtained a forged document for him. The applicant said he was born in September [year] but the Iraqi officer recorded the date as [an earlier year]. Asked what department he was in, he claimed it was a police officer. Asked why he had to assess the applicant with a different age, he claimed that he didn’t know as he had been born in Kuwait in [year].
The applicant was given a formal Iraqi government national ID card – he thought it was forged, not genuine. He didn’t ask if it was genuine – he was asked why he didn’t ask given he was traveling through a war zone using it. He claimed he only used it to allow him to buy food. Asked if travelled across borders using it, he claimed that he did. He agreed that it was checked by Iraqi military personnel at various checkpoints as he travelled. There were checkpoints every four kilometres. It was put to him that it must have been genuine enough to get past these checkpoints – he said it had his photo and a stamp in it. Asked when it was valid until, he claimed that he didn’t recall as it had no expiry date.
He thought it was a forged document and kept it on that basis. In 2004 his brother-in-law ([from] Iraq) visited them in Kuwait. [The brother-in-law] had Iraqi nationality and currently lived in Basra. In 2004 he was also lived in Basra, but had residency in Kuwait and would visit his sister. He didn’t know how his brother-in-law got his Iraqi citizenship – he was asked why, as a Bidoon the applicant would not be curious as to how his brother-in-law obtained Iraqi citizenship. He claimed he had hardly seen [his brother-in-law] since 1992, and then in 2004, 2006, 2009 and 2010.
It was put to him that his wife wasn’t an Iraqi citizen in 2004, and he claimed that she wasn’t but in 2009 she gave her brother-in-law some photos and he got his wife Iraqi citizenship. It was put to him that in 2004 his Iraqi citizen brother-in-law visited his stateless sister, so it was reasonable to believe that the applicant would inquire of [his brother-in-law] as to how he was able to obtain Iraqi citizenship.
If his sister was a Bidoon then [his brother-in-law] must have been a Bidoon at one stage as well. The applicant claimed it was a personal issue and he shouldn’t be asking about such personal issues. The Tribunal said that it was reasonable to believe that this would have been the first question he asked. Regardless, his brother could have been asked to check whether the applicant’s Iraqi ID document was genuine or not, as he could have claimed Iraqi citizenship.
He claimed that he showed his brother the ID document, and his brother-in-law asked him to give him some photos and he was able to get them Iraqi ID documents. He had no idea exactly how he got the documents and didn’t know whether the documents were genuine that he obtained; it was only when he was able to get passports that he knew the ID documents were genuine. He claimed that in 2004 he showed his brother-in-law his ID document from 1990 but the brother-in-law said he wasn’t sure if it was genuine and didn’t do anything. He was asked why the applicant didn’t ask his brother-in-law to check out in Iraq whether his ID document was valid given it had been issued by the police and had been checked by the military at checkpoints. He said that he didn’t.
Asked if he gave his brother-in-law photos and documents in 2004 to try to obtain them Iraqi ID documents, he claimed he only did this in 2009. Asked why he didn’t do this in 2004, the applicant claimed that his wife didn’t like that day. He was asked why there was a five year gap between his Iraqi citizen brother coming to see them in 2004 and him trying to gain citizenship, which was strange. In 2009 his wife gave her brother photos and he went to Iraq and got them ID documents but the applicant didn’t believe that the documents were genuine.
His brother-in-law gave all of his family (including him) individual ID cards – he was only certain that they were genuine documents when they got their passports. [His son] didn’t get an ID card as only [remaining number] children were given ID cards. It was put to him that it was strange his brother-in-law would only have gotten cards for the parents and [remaining children], but not [his son]. He claimed this was what occurred. He was asked if he confirmed with his brother-in-law that the ID cards were genuine documents, given his experience with his 1990 ID document. He claimed that he never asked his brother-in-law.
When they had their ID cards in 2009 they didn’t do anything with them, they just put them in the cupboard as they couldn’t do anything. Asked why they didn’t get passports and move to Basra to live with his brother-in-law, he claimed he didn’t like Iraq and it was scary with soldiers. He had travelled there since he had been in Australia – they kept him at the airport questioning him for hours. The applicant’s brother lived with the applicant as a Bidoon in Kuwait also, but he never tried to get him Iraqi ID documents.
His family left Kuwait in 2011 to [Country 2]. Asked what documents they left on, he claimed he thought they used Kuwaiti passports. His father organised Gulf passports; asked what he meant by Gulf passports, he claimed his father organised the passports but he didn’t know what they were. He didn’t think they were genuine as they paid money ($[amount]). Asked why they left Kuwait, he claimed that because he had left Kuwait after being tortured.
Asked why they needed to pay money for Gulf passports given they could have sought an Iraqi passport using their Iraqi ID documents they had since 2009, he claimed that he was in [another country] at the time so didn’t know. Asked why they went to [Country 2], he claimed he wasn’t there but it was safe and cheap. They didn’t have the Gulf passports any more as a man who organised them in Kuwait took the passports from them at [Country 2] airport. The family left [Country 2] around July 2012 – they were smuggled to Iraq via inland. He could provide no evidence they had been in [Country 2]. Asked who they flew with, he claimed he was in [another country] so didn’t know. He was told it would help if he could get a copy of their flight booking.
His brother was married and had children but they were in Iraq. They got there the same way as his family, via [Country 2 airport]. He didn’t know what passports they travelled on. He lived in the same house as his brother and his family [in] Kuwait. He was asked why, if they were all living I the same house, he didn’t ask his brother-in-law to obtain Iraqi documents for the applicant’s brother and his family. He claimed this wasn’t possible – it was put to him that he had said before that he didn’t ask him. He claimed that his brother-in-law had nothing to do with the applicant’s brother. It was put to him that he had said there was nepotism and corruption in Iraq so he could have gotten one of he tried.
When the applicant arrived in Australia he had an Iraqi document, and was asked why he stated that he had no other identity or had a right to enter another country. He could have mentioned his Iraqi ID documents regardless of whether he thought they were genuine or not. He knew he had this document, yet never mentioned it and claimed he had no other citizenship or right to enter another country. He appeared uncertain whether the document was genuine but certain that he couldn’t enter another country. He claimed he was a Bidoon from Kuwait. Asked why he didn’t say he wasn’t sure and didn’t reveal the existence of the ID document until he was faced with adverse information from the Australian Embassy in [Country 1]. He claimed he was up front and honest and thought the document was forged so didn’t mention it.
The applicant was a student studying language and was looking for work. He began studying in 2015. Before this he travelled to visit his children. He was there for 11 months; his brother-in-law helped him financially and his wife was [an occupation] and made money. In Australia he received Centrelink benefits, but would find work after his course.
Asked how he was able to obtain a Kuwaiti health care card, and he claimed his father was in [a government agency] since [year]. [These government workers] had the right to gain health care for himself and his family, as well as education for his family. It was put to him that his father’s documents showed his name as [a different family name], yet his name was [family name]. There were concerns about the validity of documents from Kuwait. He claimed that the tribes were the same. Asked why the applicant’s name was different to his father’s – he claimed the names were the same. It was put to him that the Tribunal had tried to find any evidence that the tribes were linked to each other, and he was asked to provide some post-hearing.

His family lived together in [Country 2] as they had done in Kuwait. The applicant’s son had travelled to Iraq with the applicant both times; they had been there for nine months and 11 months – his son didn’t go to school in Iraq but did in Australia. His son didn’t have documents so couldn’t go to school in Iraq. It was put to him that this was two years during his important teenage years that he missed school – he claimed that the applicant’s son spoke English well and went to school in Australia. He claimed his wife was sick at the time.
He was advised about the ITOA letter and that if he was able to return to Iraq, the Department was satisfied that he would not be persecuted if he returned to Iraq. This also held true for his son. He claimed that he was Sunni and lived in a Shi ‘a area and would be killed. His family suffered from being called Bidoons. Asked if anything had happened to them physically, eh claimed that [his son] was hit and had his face damaged because he was Bidoon. Asked if he had mentioned this previously, he claimed that he only mentioned this to [the welfare agency] – it was put to him that it wasn’t mentioned in any of the statements, as his son was cured and there were no further problems.
Asked if his family in Iraq had been targeted, he claimed that they were sworn at in the streets for being Sunni. Asked about his brother-in-law, he claimed that he was okay. He was also Sunni but was a man with business contacts. Only the poor were targeted. It was put to him that country information was different to his claim that only poor Sunni were targeted and he was asked if he had any country information to support this claim.
The interview was resumed after an adjournment as the previous interpreter had to leave.
Asked when he began English language classes, he claimed he had studied English in 2012, October 2015 and was in his current one. Asked why there was a three-year gap, he claimed he had travelled during that time. It was put to him that he had travelled for 20 months out of nearly 40 months. He claimed that his son was now at [a college] rather than school as he wanted to do an apprenticeship.
The adviser claimed that the visa had been cancelled based on a belief that the applicant had Iraqi citizenship. He claimed that he had seen many Bidoons had Iraqi civil cards from 1991 but this didn’t mean they were Iraqi citizens. He claimed the Iraqi national ID card had changed form over time and he assumed the brother-in-law had likely paid bribes. Relying on the wife’s nationality to show the applicant was a citizen wasn’t valid for reasons brought out in the submission.
The country of reference was Kuwait as the applicant was stateless. The adviser referred to country information regarding the granting of citizenship to children of an Iraqi mother and stateless father, and the Tribunal pointed out that it referred to children who had gained the age of majority yet the applicant’s children had citizenship already, before reaching that age. This may lead the Tribunal to believe that the applicant was Iraqi therefore his children had it already.
After a hearing with the applicant’s brother was concluded, the applicant was invited back to the hearing room. He was advised about 359AA and it was put to him that he had stated that his son had received an injury in Iraq because he was accused of being a Bidoon. The applicant’s brother had stated that he was unaware of any injury to the applicant’s family in Iraq and, given the brother shared a house with and was the applicant’s carer and their families were physically and socially close in Iraq, it was reasonable to believe that such an incident would be known by the applicant’s brother. His lack of knowledge regarding it may lead the Tribunal to conclude that such an incident never occurred. This may give rise to concerns about the applicant’s credibility.
The applicant claimed that his brother was forgetful, and his son who was hit was [his son] who was currently in Australia. Asked what he knew about his brother’s parents-in-law, he claimed that they were in Kuwait. Asked if they were still there, he claimed he thought they were but had no communication with them. Asked if he saw them when he lived in Kuwait given he lived with his brother, he said he did but didn’t have a deep relationship with them. He couldn’t remember when they had been in Kuwait – they didn’t have citizenship.
Also under s 359AA it was put to him that his brother had claimed that his parents-in-law lived in Basra and had moved there some time previously, and that they had Iraqi citizenship but then deferred and said they had some citizenship but he wasn’t sure what it was. Yet he had claimed these people lived in Kuwait and had no citizenship. The applicant had been back in Iraq for 20 months over five years and both families were close socially so it was strange that he would not have met his brother’s in-laws or at least known what their residential circumstances. He was also sure that these people were stateless yet his brother wasn’t sure but thought they were Iraqi. There were inconsistencies that may also go to determining his credibility. He claimed that he didn’t know why his brother was saying this, and his brother is shy and was forgetful.
Even though the Tribunal indicated it did not intend to take evidence form the applicant’s son, the applicant wished his son to give evidence. The son didn’t wish to give a statement but when asked about the assault he claimed that he was abused for being Sunni and then punched. His father took him to hospital, and his cousins knew about it and ‘solved the problem’ – this was how things were done in Iraq. [A cousin] solved the problem. The adviser also raised the issue about the Convention on Rights of the Child but this had been put in his submission.
Analysis
I am not satisfied that the applicant is a stateless Bidoon who had partaken in a rally for stateless rights in Kuwait, was detained and then tortured by Kuwaiti security forces. Rather, I find that he is an Iraqi citizen. And because he is an Iraqi citizen it follows that he never attended a rally in Kuwait for stateless people, was never detained nor tortured.
The evidence that he is Iraqi is overwhelming. He was born in Iraq, possesses an Iraqi National Identity card, as does his family in Iraq. The family in Iraq also have Iraqi passports – the children’s issued in 2012 and the wife’s in 2010 (folio 9) and Basra in Iraq is listed as their place of birth.
By contrast, that of his being a Bidoon lacks credibility. I lend little weight to the documents that he claims indicate his father’s presence in Kuwait as Bidoon. The documents such as the birth certificate (folio 88) are for someone by the name of [name] born to a father by the name of [stated family name], while in the partner visa application the father’s name is listed as [variation of that name]. The applicant claimed that [the stated family name] and [the other family name] belong to the same tribe so the names are interchangeable, however I have found no independent country information that would support this claim, nor was any provided by the visa holder post-hearing.
His claim about being given an Iraqi identity document by an Iraqi shopkeeper during the 1991 Gulf war appears implausible and his inability to check whether it was in fact genuine equally implausible for some claiming to be stateless. His ignorance regarding how his brother-in-law was able to acquire Iraqi citizenship is equally implausible, as was the inability of the brother-in-law to help them acquire it in 2009 when he visited, yet not in 2004 when he visited. It also lacks credibility that the applicant would also not press his brother-in-law to see whether the alleged 1991 Iraqi ID card was still valid, given his statelessness at the time.
It also lacks credibility that the brother-in-law would then get all of the family Iraqi identity documents except for [(the visa holder’s son)] – I am satisfied that [the son], like his father is an Iraqi citizen and has identity documents as a result. Equally implausible is the fact that they allegedly had Iraqi identity documents and then did nothing with them until they fled to [Country 2] on unknown Gulf state passports. The visa holder has provided no evidence that they were in [Country 2] such as a travel booking, and it lacks credibility that the family would have to pay a lot of money to get Gulf passports in order to travel to [Country 2] when they could have obtained Iraqi passports using their identity documents. The visa holder’s wife also allegedly had an Iraqi passport issued [in] 2010 (folio 9) which meant there was no need for her to obtain a different passport, further raising doubt as to the veracity of this claim.
Regardless, despite having a valid Iraqi identity document that showed him to be a citizen of that country he failed to mention this at any stage to Australian authorities until he was presented with the adverse information. I don’t accept that he failed to do so because he thought it was a fake document, but rather he did so because knew it to be valid and was trying to pass himself off as stateless. I also note that the applicant travelled to Iraq twice, and not to Kuwait on the second occasion as he noted on his passenger card – this was apparent from his own testimony where he mentioned the two times he travelled to Iraq to see his family but made no mention of making any trip to Kuwait. I have taken into account the adviser’s claims that the visa holder’s identity documents did not necessarily mean that he was a citizen. The fact that his family have Iraqi passports issued between 2010 and 2012 would indicate this not to be the case, and his lack of curiosity in attempting to verify the genuineness of his identity documents is further evidence that he is certain that they are.
I have taken into account the documentary evidence he has provided, such as the Kuwaiti documents (folios 82-100), a lease agreement for a villa in Kuwait (no folio) and a letter from [the welfare agency] however I lend them little weight. The [welfare agency’s] letter and diagnosis regarding his history of trauma is based in whole or in part on his detention and torture by Kuwaiti police, an account I have found to have been fabricated. The lease agreement could have been done on any home computer, and I have already pointed out the anomalies in some of the naming conventions in the Kuwaiti documents. I lend more weight on the implausibility of the applicant’s claims and the nature of the information that indicates his Iraqi nationality.
Conclusion on non-compliance
I am satisfied that the visa holder fabricated his claim regarding his statelessness and the impact of that, including the fact that he was detained and tortured by Kuwaiti authorities for taking part in a rally for stateless people in Kuwait. Given that I have found the visa holder to be an Iraqi citizen, and that he knew himself to be one at the time he made a protection visa application, I am satisfied that the applicant has provided false information in his claim and that he gave incorrect answers to questions 20, 22, 23 and 43.
In particular, he claimed to be a stateless Bidoon from Kuwait and at Question 20 he answered that he was stateless at birth when he was an Iraqi citizen at birth. At Question 22 he answered that he did not hold the citizenship of any other country when at the time he was an Iraqi citizen. At Question 23 he claimed that he did not have the right to enter or reside in any country other than his country of citizenship or country of habitual former residence when he was an Iraqi citizen who could enter and reside there. At Question 43 he claimed that he left Kuwait because he took part in a rally with other stateless Bidoon people, when he was an Iraqi citizen and therefore not a stateless Bidoon. For these reasons, the Tribunal finds that there was non-compliance with s. 101 by the applicant as described in the s. 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
· the correct information
The correct information is that at the time of lodging the application for a protection visa, the applicant was an Iraqi citizen and not a stateless Bidoon as he claimed. The Tribunal considers the provision of incorrect information when applying for a protection visa to be serious and goes to the integrity of the migration program. The Tribunal gives significant weight to the fact that the applicant has provided incorrect information when he applied for a protection visa.
· the content of the genuine document (if any)
I have taken into account the adviser’s claims that the visa holder’s identity documents did not necessarily mean that he was a citizen. The fact that his family have Iraqi passports issued between 2010 and 2012 would indicate this not to be the case, and his lack of curiosity in attempting to verify the genuineness of his own identity documents is because he knows that they are.
· whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document.
The Tribunal is satisfied that the decision to grant the applicant a protection visa was based on findings that the applicant was a stateless Bidoon who had been detained and tortured by Kuwaiti authorities for participating in a protest rally for Bidoon rights.
For the stated reasons, the Tribunal has found that the applicant is not, and never has been a stateless Bidoon and has always been an Iraqi citizen. The Tribunal therefore finds that the decision to grant the applicant a protection visa was wholly or partly based on the incorrect information that the applicant provided in the application for a protection visa.
· the circumstances in which the non-compliance occurred
The Tribunal considers that the applicant has knowingly provided incorrect information with respect to his fear of returning to Iraq to the Department as part of his protection visa application for the purpose of gaining a visa. He continued to provide incorrect information when he responded to the Notice of Intention to Consider Cancellation and continued to assert that he was a stateless Bidoon but that there was a possibility that he may have Iraqi citizenship through his brother-in-law who obtained it illegally.
· the present circumstances of the visa holder
The applicant’s immediate family all live in Iraq with the exception of his [son] who is with him in Australia. His decision to travel back to Iraq on two occasions to visit his family for extended periods indicates that he remains close to them. He did not work in Australia, lived with his brother [and] was living on Centrelink benefits – he began studying English in 2015.
His roots in this country do not appear to be deep, and the fact that he has spent nearly two years back in Iraq since being granted a protection visa indicate his attachment to his family in his home country. On return to Iraq he would be reunited with his family and be easily able to integrate back into Iraqi society. On the face of it, given he has not worked in Australia nor contributed significantly to the Australian community, few if any people or Australian organisations will be disrupted as a consequence of his departure.
I have taken into account the presence of the visa holder’s [age] year-old son. The adviser claimed that his interests should be taken nto account in accordance with the Convention on the Rights of the Child. The Tribunal has carefully considered the interests of the child and has genuine empathy for his circumstances. The Tribunal acknowledges that he is innocent and in no way contributed to the provision of false or misleading information. I have also taken into account the fact that he has commenced a [tertiary] course in Australia.
It is however, important to remember that the visa holder’s son has obtained his protection visa on the basis of incorrect information given by his father, and he would never have received such a visa had his father not supplied incorrect information. I have not accepted the claim that the son was not given Iraqi documents due to the implausibility of it, and am satisfied that he has Iraqi identity documents and could easily obtain a passport if he doesn’t already have one.
During the time he has been here his father has taken him back to Iraq for extended periods, so he has maintained close relations with his family and speaks the language fluently. He would easily re-integrate into Iraqi society on return. The Tribunal has carefully considered Australia’s international obligations and is satisfied that Australia would not be in breach of any international instrument in the case of the visa holder and his son returning to Iraq.
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant has not conceded that incorrect information was provided by him with respect to his protection application. He maintains that he is a stateless Bidoon and was so at the time that he made the protection visa application, but that he may have Iraqi citizenship.
· any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal in relation to any other instances of non-compliance known to the Minister. The Tribunal gives this consideration some weight.
· the time that has elapsed since the non-compliance
The original non-compliance dates from June 2012. The Tribunal does not consider this period to be of such significance to mean that the visa should not be cancelled.
· any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal in relation to any breaches of the law or any other instances of non-compliance. The Tribunal gives this consideration some weight.
· any contribution made by the holder to the community.
The applicant has not been working since arriving in Australia, and has been drawing Centrelink benefits during that time. He has also spent nearly two years out of the country in Iraq since he was granted protection. His personal contribution to the broader Australian community has been lacking, giving further weight to the finding that the visa should be cancelled.
Whilst these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.
Australia’s International Obligations
The Tribunal has not accepted that the applicant is a stateless Bidoon or that there is a real chance that he would face serious harm on return to Iraq. A detailed ITOA was completed, the applicant having been given the opportunity to submit information to inform the ITOA, and the assessment determined that there was not a real risk that the applicant would suffer significant harm if removed from Australia to Iraq. I do not accept that his family would be killed because they were poor Sunnis living in a Shi‘a area, or that his [son] had his face damaged because he was Bidoon.

The applicant’s brother when asked was unaware of any incident in which [his son] had been hurt in Iraq, and [his son] himself said that there was a fight over being called Sunni. This was inconsistent with the visa holder’s claim that the fight was over being called a Bidoon. I also note that the rest of the family have lived in Basra without incident since 2011 or 2012 and the visa holder’s brother-in-law (and the parents-in-law of the visa holder’s brother) for longer than that. The visa holder was also unable to provide any country information to support his claim that poor Sunnis were targeted in Basra.
I also note that the visa holder and his son have returned from Australia on two occasions to Iraq for a total of nearly 20 months in-country. The visa holder was willing to visit the country to see family members, had no difficulty entering or leaving the country and experienced no problems while he was there. I further note that the applicant returned to Iraq in 2015, at the height of the threat from Islamic State in that country, which further indicates the lack of fear of persecution on the part of the applicant.
The ITOA was completed in February 2017 and found that non-refoulement obligations were not engaged in the applicant’s case. Since then, the security situation in Iraq has further improved and the findings of the ITOA therefore remain current.
The Tribunal considers that the applicant’s willingness to return to Iraq demonstrated that he does not have any subjective fear of harm about returning to Iraq.
Effect of the Cancellation
The Tribunal understands that the effect of affirming the cancellation would cause the applicant to be barred from applying for further visas, and may lead to the applicant being detained as an unlawful non-citizen and that he will be liable to be detained. The applicant is an Iraqi citizen and can obtain a valid Iraqi passport (if he does not already possess one) so can return to Iraq at any time. Therefore the Tribunal finds that indefinite detention is not a possible consequence of the cancellation decision.
CONCLUDING PARAGRAPHS
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Rodger Shanahan
Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:
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.

[2017] AATA 981

1 June 2017

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