1705088 (Refugee)
[2017] AATA 1288
•21 July 2017
1705088 (Refugee) [2017] AATA 1288 (21 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1705088
COUNTRY OF REFERENCE: Iraq
MEMBER:Antoinette Younes
DATE:21 July 2017
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 21 July 2017 at 4:17pm
CATCHWORDS
Refugee – Cancellation – Protection visa – Iraq – Incorrect answers – Independent Merits Review – Stateless Bidoon – Imputed political opinion – Sunni Muslim – Subsequent partner visa application – Iraqi citizenship of wife and children – Credibility issues
LEGISLATION
Migration Act 1958, ss 46(1), 46A(1B), 101(b), 107, 109(1), 438(1)(a)
Migration Regulations 1994, Schedule 2, r 2.41CASES
Brar v MIAC [2012] FMCA 519
Burton v MIAC (2005) 149 FCR 20
Gido-Christian v MIAC [2007] FMCA 825
Kang v MIAC [2013] FCA 711
MIAC v Brar (2012) 201 FCR 240
MIAC v Khadgi (2010) 190 FCR 248
Salama v MIBP [2016] FCCA 540
Saleem v MRT [2004] FCA 234
Zhao v MIMA [2000] FCA 1235
Zhong v MIAC (2008) 171 FCR 444Any 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 applicant did not comply with s.101(b) which requires a non-citizen to fill in or complete the application form in such a way that no incorrect answers are given or provided. 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 6 July 2017 to give evidence and present arguments. 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.
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.
The applicant’s representative has made submissions arguing that the s.107 notice is invalid. As discussed in the course of the hearing and for the reasons explained below, 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.
The Tribunal advised the applicant that there is a s.438(1)(a) certificate placed on Departmental Partner visa application file. The Tribunal indicated that it considered the certificate to be invalid and noted that the Tribunal would discuss any relevant information contained in those documents.
Was there non-compliance as described in the s.107 notice?
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(b).
Essentially when seeking protection, the applicant has claimed that he is a stateless Bidoon[1] who was born in Kuwait, that he had resided in Iraq since [date], that he did not obtain Iraqi citizenship, and that he held a personal status card for Iraq. He claimed that he had departed Iraq in 2010 using a genuine Iraqi passport for which he had paid in order to get it fast tracked.
[1] Bidoon or Bidoun is an Arabic word meaning without nationality – to be distinguished from Bedouins – the nomads
In the course of the hearing, the Tribunal discussed with the applicant the summary of his protection claims and responses in the application for a protection visa as noted by the delegate in the decision which the applicant provided in support of the application for review.
Relevantly, the delegate’s decision record refers to the following matters:
a.[In] January 2011, the applicant arrived in Australia as an irregular maritime arrival and he made claims of being a refugee. [In] February 2011, the applicant made a request for a Refugee Status Assessment (RSA) and [in] May 2011, the delegate of the Minister found that the applicant is a “stateless Bidoon, and habitually resides in Iraq… I find that the claimant does not have a well-founded fear of harm and that there is not a real chance of persecution occurring on the grounds of religion, imputed political opinion or particular social group”.
b.[In] June 2011, the applicant applied for an Independent Merits Review (IMR) and the applicant made claims that:
The treatment we received as Kuwaiti born Bidoons is very different to that of Iraqi citizens. We are treated differently in education, employment, health. This is because of the militia who control everything in Iraq.
I am informed that the case officer said in her decision that the Mehdi Army was no longer active after the election. In fact the opposite is true, it’s just that the media was not talking about it. Especially in the south, the Mehdi army are the ones controlling everything. I can’t go back to Iraq. They have people everywhere: in airports and government departments. If I returned, they would know about it, and I would be executed straightaway.
If I was sent back, the first thing that would happen is I would be interviewed at the airport. I would be accused of being a spy and the information about my refugee application would be found out. I don’t know if the passport I had was genuine or not. I got it from Baghdad and I paid $[amount] for it. As I don’t have a passport, I cannot return to Iraq anyway. I am not a citizen and cannot get a passport.
c.[In] January 2012, based on the applicant’s claims of being a stateless Bidoon, imputed political opinion, and his Sunni Muslim faith, the reviewer of the IMR found that the applicant met the definition of a refugee and subsequently [in] May 2012, the applicant lodged an application for a protection visa, subclass 866. As part of that application, the applicant completed the form 866B – Persons included in this application and family composition. In response to question 11 of the form asking “Are there any members of the same family unit who are not in Australia at the time of the application?”, the applicant ticked “yes” and stated “See Attachment”. In that attachment, the applicant provided details relating to the names of his wife[and children] and indicated their citizenship to be Stateless.
d.The applicant also completed a form 866C in which he responded to a number of questions. In response to question 20 asking “Your citizenship at birth?”, the applicant responded “Stateless”. At question 22 asking “Do you hold any other citizenship or are you a national of any other country?”, the applicant ticked “No”. At question 23 asking “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 applicant ticked “No”.
e.At question 42, asking “I am seeking protection in Australia so that I do not have to go back to (give name of country or countries), the applicant responded “Kuwait and Iraq”. At question 47 asking “Why do you think this will happen to you if you go back?”, the applicant stated “Please refer to all information provided in support of my request for Refugee Status Assessment including but not limited to my Statutory Declaration made on 20 February 2011 and my RSA interview and all information provided in support of the Independent Merits Review of the RSA”.
f.In the Statutory Declaration of 20 February 2011, the applicant made the following claims:
I am a stateless Bidoon of Arab ethnicity and of Sunni Muslim faith…My life and my kids’ lives have been threatened because I am Sunni and because I do not support a political party. The authorities are unable to protect me because many of them are members of the Shia political party that is persecuting me. I do not have citizenship to this country.
…When I arrived in Iraq the government issued me with a personal status card and a residence card. These documents allowed access to hospital and schools. It did not give any other rights and we did not have a right to stay in the country. I was scared because at any time the Iraqi government might force me out of the country.
… In 2006 and 2007 my sons [Mr A] and [Mr B] were working in a [foreign] Company in [a workplace]. The Thaar Alah party started to threaten me and required me to make my son’s to leave their jobs. Taar Alah is a Shia extremist political party…The threat was that if they did not give up their jobs my sons would be killed.
… After this another problems started in March 2010 by the Al Mahdi Army party. They were a Shia party. They had wanted me to vote for their party but I refused to… They threatened to kill us and our children. This happened because I am Sunni.
… After the constant threatening of my life I had to flee Iraq for my safety… If I was returned to Iraq I fear I would continue to be threatened and potentially killed by the Al Mahdi party and other Shia extremists. It will also be a problem for me because I have sought asylum in a Western country. The Shia extremists would consider me a traitor by seeking the protection of an enemy country.
g.The applicant was granted the protection visa [in] July 2012 and [in] June 2013, he lodged a sponsorship application form 40SP for his wife [including] their [children] for an offshore Partner visa. At question 8 of the form 40SP titled Sponsorship for a partner to migrate to Australia, asking Which citizenship do you hold? The applicant stated Iraqi.
h.At question 11 of forms 47A Details of child or other dependent family member aged 18 years or over, asking “Dependent’s country of current residence”, the applicant’s adult children [Mr B], [name] and [Mr C] responded “Iraq”. In addition, the applicant’s spouse and [children] provided copies of their Iraqi passports and Iraqi identity cards.
i.Departmental records and incoming passenger card show that the applicant had travelled to Iraq on two occasions since the grant of his protection visa, for three months between [January] 2013 to [April] 2013, for about 2 ½ months from [March] 2014 until [May] 2014.
In the course of the hearing, the applicant agreed that he had provided the responses to the relevant questions as outlined above. He stated that he had provided correct information. In relation to the Partner visa application, he stated that he had shown the person who completed the forms his ID card and the person had assumed it meant that he was Iraqi. He said he does not know anything else about how that occurred.
The Tribunal discussed with the applicant the passports and the identity cards provided by members of his family to support the Partner visa application. The Tribunal suggested to the applicant that the Iraqi passports and identity cards are strong evidence that his wife and children are Iraqi citizens, contrary to his claims that they are stateless. The applicant stated that until 2012, the family had no proof of nationality. He said after 2012, his wife heard about people coming to Australia and she was deteriorating psychologically, was tired, and was not happy. He said she told him that there was another way to get proof of identity in that people were taking money. He said she spoke to him about an Iraqi [official]. He said she told him that they paid US$[amount] and they managed to obtain Iraqi passports and identity cards. He said he was surprised that they were able to do that but his wife is resilient and she did things by herself. He said they had to leave Iraq as there was no work, or place to settle, and there was danger. He said in Iraq a lot of people have been killed and that the country is dominated by militia groups.
The Tribunal asked the applicant if he was suggesting that the Iraqi documents obtained by the family and provided in support of the Partner visa application were not authentic or that family members were not entitled to obtain those documents. He said in Iraq, everything can be bought with money. He said the family was helped by an Iraqi [official]. The Tribunal asked him to clarify again whether he was suggesting that the family was not entitled to those documents to which he responded that he did not know about this “kind of behaviour”; he said they paid money and obtained the documents. He reiterated that he does not know about this “matter… Wife said we are in a tense situation”. The Tribunal found the applicant’s evidence in relation to the Iraqi documents to be internally inconsistent, evasive and lacking in details raising doubts about the truthfulness of the evidence he was giving before the Tribunal.
The Tribunal discussed with the applicant the claim that he had paid $[amount] to obtain a passport to enable him to leave Iraq. The Tribunal asked him if he was legally entitled to obtain the passport and he did not answer the question and stated that he used the passport to leave Iraq. He said he was told that if he paid, he would be able to get the passport. The applicant stated that the passport was not forged but he had to pay for it. When asked about what happened to the passport, he stated that he had thrown it out in [country]. The Tribunal found the applicant’s responses to the questions about the alleged passport he had used to depart Iraq vague and evasive. He was unable to explain to the Tribunal, and despite being prompted, whether or not he was legally entitled to the passport.
In response to the notice of intention to consider cancellation and to the Tribunal, the applicant provided a statement as follows:
a.He and other family members were born in Kuwait as non-Kuwaities and without nationality. He worked in the [government sector] in Kuwait from 1983 until 1990 and like many Bidouns, his job was cancelled, he was expelled from [his position] and he lost his rights as a [government] person.
b.He and his family were deported by the Kuwaiti authorities and they entered Iraq on special permits. The Iraqi authorities granted him a civil service card so that he could access official departments and pass through checkpoints. The fall of the Baath regime was a catastrophe for Sunni Bidouns. Sectarian clashes increased and suspicion was directed to Kuwait. Kuwaiti Bidouns were subjected to accusations and charges. They were ill-treated and accused of being spies for Kuwait. He was terrified and felt obliged to leave Iraq at any cost. He arranged for an influential Shiite person to issue him with a passport in return for US$[amount]“without making any registration in the Registers of the General Nationality Department”. He managed to escape Iraq.
c.The application for a protection visa was completed truthfully and accurately, apart from the information about his son [who] was born in Iraq. After payment of substantial amounts of money, he registered his son as an Iraqi. Country information including that from DFAT acknowledges the dangers of Sunnis in areas controlled by the Shiite majority. All members of his family until 2012 were without Iraqi passports and “…Frankly, those passports were issued in extraordinary circumstances. I was not present to peruse their particular details. An intermediary connected with a member of the Iraqi house of deputies arranged them. That cost the family [amount] USA dollars…”.
In oral submissions to the Tribunal, the applicant’s representative stated that when the applicant applied for a protection visa, members of his family were stateless and the subsequent Iraqi documents provided by the family were obtained in 2013. The Tribunal suggested that whilst the documents might have been obtained in 2013, this does not necessarily mean that members of the family were not Iraqi nationals prior to 2013. The Tribunal noted that it would appear that the documents were obtained in 2013 in order to support the application for a Partner visa which was lodged in June 2013. The Tribunal is not persuaded by the explanations provided by the applicant or the submissions of the representative. The Tribunal is of the view that the passports and Iraqi ID cards provided in support of the Partner visa application are strong evidence that the applicant’s wife and children are all Iraqi nationals and that it is likely that they were Iraqi nationals when the applicant applied for a protection visa.
The Tribunal asked the applicant to explain why he went to Iraq on the two occasions subsequent to the grant of the protection visa. He said he went to see his ill mother who died in 2015. He stated that he did not go to Basra but instead went to [Town 1] which is approximately [distance] km from Basra. The Tribunal asked him whether [Town 1] was in the north, or south, or east, or west of Iraq and he stated that he does not know its location in Iraq but thought that it was close to the north. The Tribunal expressed concerns about his inability to identify more details about [Town 1] and asked him where his family was at that time. He stated his family including his mother joined him and stayed with him. The Tribunal indicated that it is difficult to understand how his ill mother was able to travel [distance] km and the applicant stated that she was taken in the car all the way. The Tribunal suggested to the applicant that his returns to Iraq soon after he was granted the protection visa could suggest that he does not have fear of harm and it also raises doubts about the veracity of the claims that he has made, and his credibility. He stated that he was scared at the airport and relatives picked him up. He said he regrets having gone to Iraq and expressed his sadness about not going to his mother’s funeral. The applicant was visibly upset and sad when he was talking about his mother.
In a statement, the applicant indicated that he went to Iraq [in] January 2013 after being informed of his mother’s serious ill-health. He arrived in Basra airport where there were armed relatives of [certain] clans who took responsibility for his protection. He later stayed in the [properties]. [In] March 2014, he travelled to Iraq under the same circumstances. His mother died [in] June 2015 without him attending her funeral. He is a peaceful and truthful man but he is not educated. He might have committed some mistakes. He travelled to Iraq using the Australian travel document.
The applicant has provided a copy of the death certificate relating to [his mother] who died [in] June 2015. The Tribunal accepts as plausible that the applicant’s mother died in June 2015 and that she had been ill previously. The Tribunal acknowledges that the applicant is very saddened by the death of his mother and undoubtedly he would have been upset finding out that she was ill. The Tribunal is of the view that although the applicant went to Iraq on two occasions to see his mother, this is nevertheless difficult to accept in light of his claims that “If I returned, they would know about it, and I would be execute straightaway”. The applicant was granted the protection visa [in] July 2012 and he returned to Iraq on the first occasion [in] January 2013. It is difficult to accept that within six months of being granted the visa, the applicant would return to the country where he had claimed he would immediately be executed. Moreover, the Tribunal is concerned about the applicant’s evidence in relation to where he had stayed ([Town 1]) when he was in Iraq. He was unable to tell the Tribunal whether that was north, south, east, or west of Iraq. It is difficult to accept that a person who is claiming to fear execution would not even know the direction of the location of the place where he had stayed. He had travelled a long distance from Australia to see his family, yet he was unable to tell the Tribunal the location of where he had stayed. It is also difficult to accept that the applicant’s mother who was ill would travel approximately [distance] km. The applicant’s evidence raised doubts about the applicant’s credibility and the truthfulness of the evidence he was giving.
In submissions, the applicant’s representative provided background information about Bidoons in Kuwait and their ill-treatment in Iraq. The representative noted that the applicant had provided correct answers to relevant questions because at the time, he was a stateless Bidoon. It was submitted that the applicant continues to fear harm and he cannot return to Kuwait. As a Bidoon and Sunni Muslim he cannot return safely to Iraq. Nor can the applicant avail himself of the protection of the Iraqi authorities. The situation in Iraq for Sunni Muslims has worsened since 2014 and this is supported by country information. UNHCR has strengthened its call against the forcible return to Iraq of failed asylum seekers. In relation to the submissions questioning the authority to cancel a visa that has expired [in] July 2017, the Tribunal noted in the hearing that the visa was valid when it was cancelled and there does not appear to be an issue in this regard. On the evidence, the Tribunal finds that the visa was cancelled [in] March 2017, prior to its expiry date of July 2017.
The applicant has provided the following documents which were discussed in the course of the hearing:
a.Ministry of Public Health Personal card for [Mr B] showing nationality as non-Kuwaiti,
b.Ministry of Public Health Personal card for [Mr A] showing nationality as non-Kuwaiti,
c.Ministry of Public Health Personal card for [the applicant] referring to address as [address],
d.State of Kuwait Ministry of Education results for 1973-1974,
e.Untitled document referring to [Mr B] as being a non-Kuwaiti,
f.birth certificate for [name] born in Kuwait on [date],
g.State of Kuwait birth certificate for [Mr C], a non-Kuwaiti, born on [date],
h.State of Kuwait birth certificate for [Mr A], a non-Kuwaiti born on [date],
i.State of Kuwait birth certificate for [name], born on [date],
j.State of Kuwait Ministry of Interior document referring to [the applicant] as a Bidoon,
k.Drivers licence for [the applicant] noting nationality to be non-Kuwaiti,
l.Confirmation referring to [the applicant’s] Sunni faith and residence in Iraq,
m.Kuwaiti birth certificate for [the applicant] referring to Kuwait as his place of birth,
n.Ministry of Interior Basra Province document titled No Objection noting that the [applicant had] been deported from Kuwait to Iraq and that he is not an Iraqi National,
o.Applicant’s Australian travel document.
The Tribunal has credibility concerns about the applicant and there is inconsistent information in the documents before the Tribunal; on the one hand, a number of documents indicate that the applicant and/or his family had at some stage lived in Kuwait as a non-Kuwaitis, on the other hand there are documents such as Iraqi passports and identity cards indicating that the applicant and members of his family are Iraqi nationals.
In the course of the hearing, the Tribunal discussed with the applicant the most recent report from the Australian Department of Foreign Affairs and Trade (DFAT)[2], in which it is noted that:
3.57 The Bidoon are a group of often stateless persons in the Gulf region, primarily Kuwait, including those unable to gain citizenship at the time of Kuwait’s independence due to a lack of documentation, as well as those who renounced their citizenship to move to Kuwait (from countries such as Iraq). There is little verifiable information available on the status of Bidoon in Iraq. During the Gulf War a number of Bidoon fled (or were deported) to Iraq and subsequently faced difficulties re-entering Kuwait. Kuwait considered those who fled to Iraq as supporters of the Ba’ath Party regime and therefore not loyal to Kuwait. An estimated 100,000 Bidoon entered Iraq during this period. The majority are Sunni, with a small minority being Shia. More than 80 per cent are reported to live in the south, although some have moved to the north.
3.58 Approximately 47,000 Bidoon were granted Iraqi nationality by the Ba’ath Party regime through an assistance package called ‘makremiayah’. To obtain citizenship, Bidoon had to declare that Kuwait was not their place of birth (that is, they had to renounce association with Kuwait) and often needed sponsorship from a local tribal group. After 2003, Bidoon were no longer able to claim citizenship through ‘makremiayah’. Bidoon who were unable or unwilling go through ‘makremiayah’ remain stateless. In-country contacts report that approximately 54,000 Bidoon remain stateless. A stateless person has to prove that he or she was registered during the 1957 Census in order to gain citizenship. Local authorities reportedly maintain a certain degree of flexibility for Bidoons with regards to this requirement. Bidoons can access Iraqi nationality through their affiliation with some tribal groups, provided they do not declare ‘Kuwait’ as their place of birth. Bidoon may face difficulty in obtaining Iraqi nationality documentation due to a combination of not being registered or not being able to meet the supporting documentation requirements. Stateless Bidoon do not have access to many services and public sector job opportunities, nor can they register land in their own names, sign rental contracts or inherit. Births and deaths of stateless Bidoons are not normally registered by Iraqi officials.
[2] DFAT Country Information Report Iraq, 26 June 2017.
The Tribunal indicated to the applicant that based on the available country information, it would appear that it is possible that although the applicant might have been a stateless Bidoon at some stage, it is plausible that he and members of his family have acquired Iraqi citizenship which was possible prior to 2003. The Tribunal indicated to the applicant that country information indicates that prior to 2003, Bidoon could be granted Iraqi nationality by the Ba’ath regime through an assistance package called ‘makremiayah’. The applicant stated that he and his family did not obtain Iraqi nationality and they were simply given Iraqi cards. In oral submissions, the representative noted that it would have been difficult for Bidoon to obtain Iraqi nationality.
In post hearing submissions dated 11 July 2017, the representative referred to DFAT Country Information Report on Iraq, dated 29 November 2013, noting that Bidoon remaining in Iraq after the forced deportation from Kuwait in the 1990s, numbered around 100,000 people were Sunni majority and around 50,000 were granted Iraqi nationality under the makremiayah. The representative noted that in order to obtain an Iraqi nationality, the process and documents required were essentially the same as for obtaining the Iraqi civil status ID document and Bidoon could run into difficulties in meeting the documentation required. Lack of registration document and inability to provide sufficient documents presented a significant barrier to the remaining stateless who were subject to high levels of discrimination. They did not have access to public services and they could not register land in their name.
The representative indicated that “In general Bidouns do not hold Iraqi nationality certificates. Without full and proper documentation they also cannot with freely within Iraq or outside of Iraq. This assessment in the DFAT country information report of 2013, lends, we submit strong support for our belief that our applicant was very truthful in his presentation on arrival in Australia when he said he has only a limited Iraqi document, issued to all Bidouns upon their arrival in Iraq – a document to keep the marginally free from problems of interception and arrest from that then Ba’athist police and security. But the limited Iraqi ID document did not make the Bidoun and Iraqi National. That required special Baath party, or clan interventions, sometimes through bribery, to secure firstly a registered official Iraqi civil ID card and a registered nationality certificate and then an Iraqi passport. These documents appear to have been obtained for his immediate family members separately in 2013. When he fled from Iraq in 2010, he certainly had not been granted an Iraqi nationality certificate”.
The Tribunal has carefully considered the evidence and the representative’s submissions. The applicant came to Australia in January 2011 and country information indicates that prior to 2003, it was possible for Bidoon to become registered through the makremiayah and acquire Iraqi nationality. After 2003, the process changed but it is nevertheless possible for Bidoon to access Iraqi nationality. Post-hearing, the representative provided a copy of a document and its translation titled Personal Identity Card for the applicant showing his place of birth as Basra, Iraq, contrary to the claims that the applicant was born in Kuwait.
In consideration of the evidence as a whole, and despite the credibility concerns, the Tribunal accepts as plausible that the applicant and various members of his family had lived in Kuwait. However, in consideration of the evidence as a whole, the Tribunal does not accept that the applicant and/or his family did not acquire Iraqi nationalities. In consideration of the evidence as a whole including, but not limited to, the Iraqi passports and identity cards, the Tribunal finds that the applicant and members of his family are registered Bidoon and that they are Iraqi nationals, contrary to the applicant’s protection claims that they are stateless Bidoon – with no nationality.
Essentially the applicant was found to have provided incorrect answers to question 11 of form 866B, questions 20, 22, 23, 42, and 47, of form 866C. In relation to questions 23 and 42 and given the finding that the applicant is an Iraqi national, the Tribunal has concerns as to whether the responses to those questions amount to incorrect answers. Question 23 asks “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 applicant ticked “No” which appears to be correct. Question 42 asks “I am seeking protection in Australia so that I do not have to go back to (give name of country or countries), the applicant responded “Kuwait and Iraq”. Although his returns to Iraq undermine his claims for protection, the response itself is arguably correct.
Given the findings about the applicant’s nationality and that of his family and in consideration of the evidence as a whole, the Tribunal finds that the applicant has provided incorrect information when seeking Australia’s protection and that he provided incorrect answers to question 11 of form 866B, questions 20, 22, 47, of form 866C.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
The applicant’s mental health
The applicant provided reports from a psychiatrist and a psychologist as follows:
a.Report from [name] dated [March] 2016 noting that the applicant suffers from persistent back, neck and left shoulder pain as well as post-traumatic stress disorder and depressive disorder. It is noted in the report that the applicant had also described his mood as being depressed, that he is forgetful and that he had difficulty in concentrating.
b.Report addressed to Centrelink dated [December] 2016 from [a doctor] who diagnosed the applicant as having post-traumatic stress disorder[and other disorders]. The report refers to the applicant being jailed 3 to 4 times by the Kuwaiti authorities during which he was exposed to torture.
c.Report of [Dr A], consultant psychiatrist dated [May] 2017. [Dr A] outlined the applicant’s background and noted that the applicant had been his patient since November 2015. [Dr A] noted that the applicant had previously sought psychiatric assistance in Iraq and his psychiatric condition deteriorated during his detention in Australia. [Dr A] stated that the applicant has suffered from post-traumatic stress disorder[and other conditions] as a result of experiencing trauma and life threatening events during his time in Kuwait and later in Iraq…He expressed the opinion that the applicant’s decision to travel to Iraq in the current circumstances is a “clear example about his irrational thinking and impaired judgement...” [Dr A] noted that the applicant will continue to require ongoing treatment for his mental health.
In the course of the hearing, the Tribunal asked the applicant whether he had sought in Iraq assistance for mental health issues and the applicant stated that he used to see someone from 2006 in relation to lack of sleep. He stated that he was referred to a psychiatrist who prescribed sleeping pills. The Tribunal discussed with the applicant the reports provided and indicated that although the Tribunal gives consideration to those reports, factual findings about harm are matters for the Tribunal to decide.
The Tribunal asked the applicant if [Dr A] is aware of the cancellation of the visa and the applicant stated that he had not told the doctor about the cancellation because it was not relevant. The Tribunal indicated to the applicant that it is odd that he has not told the psychiatrist about such a significant event.
The reports provided by the applicant in relation to his mental health are significant reports and the Tribunal has carefully considered those reports. The Tribunal finds it difficult to accept however that the applicant would not disclose to a psychiatrist whom he had seen since 2015 that his visa has been cancelled. The most recent report from [Dr A] is dated [May] 2017 and the applicant’s visa was cancelled on 9 March 2017. The Tribunal is concerned that this could suggest that the applicant has not been entirely open with [Dr A] about his situation which could raise concerns about the comprehensiveness of the report and the accuracy of the information provided by the applicant to [Dr Alhajali. It appears that [Dr A]’s observations and findings have been based on incomplete information.
The Tribunal has given regard to the reports provided concerning the applicant’s health and the Tribunal accepts that the applicant has pain in the back, neck, and shoulder, and that the applicant suffers from PTSD, anxiety and other mental health concerns as highlighted in the reports. However, in consideration of the evidence as a whole and the concerns about the report of [Dr A], the Tribunal is not satisfied that any of the health concerns relate to the harm claimed by the applicant, or that they explain the evidentiary concerns discussed earlier. The Tribunal carefully observed the applicant in the course of the hearing and the Tribunal is satisfied that the applicant was able to put his case in full before the Tribunal. He did not give an impression that any of those conditions impacted his ability to give evidence. Moreover, the applicant’s advisor was present in the course of the hearing and there was no suggestion or submissions that the applicant was incompetent to give evidence.
Validity of the s.107 Notice
As mentioned earlier, the Tribunal has proceeded on the basis that the s.107 notice is valid. For the following reasons, the Tribunal has found the s.107 notice to be valid.
The Tribunal discussed with the applicant the submissions of the representative questioning the validity of the s.107 notice. The issue is whether the notice was sufficient to fairly inform the applicant of the basis upon which cancellation was being considered so that the visa holder was adequately equipped to provide relevant information and to make such submissions.[3] The Tribunal has found and for the stated reasons that the applicant is an Iraqi national and not a stateless Bidoon, contrary to his protection claims. The s.107 notice refers to specific information in the 866 application where the applicant had claimed that he was stateless Bidoon.
[3] Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25]. In that case the Court was considering the requirements of s.119 notifications for the purposes of Subdivision D cancellation but the principle would be equally applicable to s.107 notifications. The decision was cited with approval by the Federal Court in MIAC v Brar (2012) 201 FCR 240: see [57]-[58], a decision that was concerned with a s.107 notification.
The sufficiency of notification is to be tested by reference to the statutory purpose. For example, simply identifying the statutory provision not complied with would not be an adequate provision of particulars for s.107(1)(a).[4] However, it may not always be necessary to identify with precision particular answers that are incorrect. For example, in Gido-Christian v MIAC, where the core issue related to the genuineness of the applicant’s spousal relationship, the s.107 notice identified the incorrect ‘answers’ as including the applicant’s declaration that she ‘did not marry or enter a de facto/common law relationship to become eligible for migration to Australia’, and that her application was lodged on the basis that she was in a genuine and continuing marital relationship with her sponsor. The Court held that when read in a common sense way, the notice provided sufficient information and satisfactorily complied with legislative requirements. His Honour stated that this was not a case where a specific incorrect answer needed to be established when dealing with what could only be described as a straightforward and significant notion, namely the genuineness of the relationship.[5]
[4] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004) at [43]-[44].
[5] Gido-Christian v MIAC [2007] FMCA 825 (McInnis FM, 31 May 2007) at [87]. See also Burton v MIAC (2005) 149 FCR 20; but contrast Zhong v MIAC (2008) 171 FCR 444.
Further, the fact that allegations in a s.107 notice may be factually incorrect will not invalidate the notice. Relevantly, in Brar v MIAC[6] the s.107 notice indicated that the applicant had failed to comply with s.103 because he had provided a skills assessment from Trades Recognition Australia (TRA) obtained by using a false work reference (a ‘bogus document’) in circumstances where the provision of such an assessment was necessary for the grant of his visa. The Court reasoned that even though TRA had not in fact been validly specified as a relevant assessing authority, and so the s.107 notice was incorrect in stating that the grant of the visa was conditional on provision of the assessment, both the applicant and the Department had proceeded on the basis the assessment was necessary and the applicant had provided false or misleading information to TRA in order to obtain it. The Court held that the allegations in the s.107 notice were thought to be material at the time the notice was issued and the notice was not invalid simply because they were included.[7]
[6] [2012] FMCA 519 (Driver FM, 31 July 2012).
[7] Brar v MIAC [2012] FMCA 519 (Driver FM, 31 July 2012) at [71]. See also Kang v MIAC [2013] FCA 711 (North J, 22 May 2013).
A minor defect in the content of a s.107 notification which does not go to the substance of the allegations or affect the visa holder’s capacity to respond to the allegations will not necessarily preclude valid cancellation under s.109. The Full Federal Court in MIAC v Brar[8] confirmed that a purposive approach must be taken, so that an error which is minor and insignificant in the context of the facts of a particular case and which does not go to the substance of the allegation of non-compliance will not deprive a decision maker of jurisdiction under ss.108 and 109.
[8] (2012) 201 FCR 240, overturning Brar v MIAC [2011] FMCA 435 (Driver FM, 28 July 2011).
In Salama v MIBP,[9] the Court dismissed the former visa holder’s argument that the s.107 notification did not comply with s.107(1)(c)(ii),[10] and held that even if there was a defect in the notification, it was trivial and insignificant, given there was no suggestion that the visa holder was denied any reasonable opportunity to respond in writing to concerns held about the Minister about possible non-compliance with the visa holder’s obligations.[11]
[9] [2016] FCCA 540 (Judge Smith, 18 March 2016).
[10] Salama v MIBP [2016] FCCA 540 (Judge Smith, 18 March 2016) at [19].
[11] Salama v MIBP [2016] ibid at [23].
On the evidence before it, although the Tribunal is not satisfied that answers to questions 23 and 42 are incorrect, the Tribunal is satisfied that the s.107 is valid and that it has provided the applicant with a meaningful opportunity to respond and to understand the potentially adverse information.
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 the application for a protection visa, the applicant and his family were not stateless and that they were (and are) Iraqi nationals.
The Tribunal gives this aspect significant weight in deciding that the visa should be cancelled.
· the content of the genuine document (if any)
On the basis of the available information, the Tribunal is satisfied that the family members’ Iraqi passports and Iraqi identity documents, are genuine documents containing accurate information in relation to their nationality.
· 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
Throughout the protection visa application process, the applicant claimed that he and members of his family are stateless Bidoon. The applicant was granted the protection visa on the basis of the independent reviewer’s findings, amongst other things, that the applicant is stateless and his “lack of Iraqi citizenship”[12].
[12] At paragraph 64 of IMR 's decision dated [January] 2012
On the evidence before it, the Tribunal is satisfied that the decision to grant the protection visa was based, wholly or partly, on the incorrect information provided by the applicant.
The Tribunal gives this aspect significant weight in deciding that the visa should be cancelled.
· the circumstances in which the non-compliance occurred
As outlined earlier, subsequent to the grant of the protection visa [in] July 2012, the applicant returned to Iraq for the first time [in] January 2013. On the evidence before it and for the reasons explained above, the Tribunal is satisfied that his returns to Iraq indicate that he did not fear harm as claimed. His returns also support the findings that the applicant has provided incorrect information about his nationality and his claims of harm.
The applicant has explained his returns on the basis of his mother’s illness and the Tribunal gives this some weight in his favour. The applicant’s spouse in Iraq lodged an application for a Partner visa, sponsored by the applicant. The spouse and the children provided copies of Iraqi passports and identity cards indicating that they are Iraqi nationals, contrary to his protection claims that they are stateless. The Tribunal gives this aspect significant weight in deciding that the visa should be cancelled.
· the present circumstances of the visa holder
The applicant does not have close family members in Australia. He gave evidence that his wife and children, all of whom are adults, are in [location] which is [distance] km away from Basra, Iraq. The Tribunal asked him about their situation and he stated they are not working. The Tribunal asked him if he has any relatives in Kuwait and he stated that he has [siblings] all of whom are married and live in Kuwait with their families.
The Tribunal has considered the applicant’s physical and mental health, as well as his personal situation very carefully. The Tribunal gives the applicant’s health weight in his favour, however, the Tribunal gives the totality of his personal circumstances weight in deciding that the visa should be cancelled.
· 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 responded to the notice of intention to consider cancellation and he attended a hearing before the Tribunal. His cooperative approach towards the Department and the Tribunal has been given weight in his favour.
However, the applicant has continued to claim that he and members of his family are stateless. The Tribunal gives this aspect significant weight in deciding that the visa should be cancelled.
· any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal that there are any other instances of non-compliance by the applicant. The Tribunal has given this factor some weight in the applicant’s favour.
· the time that has elapsed since the non-compliance
The applicant was granted the protection visa in July 2012. The Tribunal does not consider five years in the applicant’s circumstances to be a significant period. The Tribunal gives this aspect weight in deciding that the visa should be cancelled.
·any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal that there is any breach of the law since non-compliance. The Tribunal has given this factor some weight in the applicant’s favour but it is reasonable to expect compliance with the law.
a.any contribution made by the holder to the community.
The Tribunal asked the applicant about any contribution he has made to the community and he stated that he has not.
The Tribunal gives this aspect weight in deciding that the visa should be cancelled.
·are there any other relevant factors which should be considered?
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.
The Tribunal asked the applicant why he does not wish to return to Iraq and he stated he was threatened. The Tribunal asked him how he was threatened and he stated that pieces of paper were left under the door. He said they were threats relating to his sons who were working for [a foreign] Company. Although he was not sure, he said that his sons had to leave the company in 2007. The Tribunal asked him the whereabouts of his sons and he stated that they live with their mother some [distance] km away from Basra. The Tribunal noted that there is no evidence and he is not claiming that they have suffered any harm. The Tribunal is of the view that the fact that his sons and other members of his family continue to live in Iraq without suffering harm suggests that they do not hold any adverse profile of interest to anyone. The Tribunal is satisfied that the applicant’s returns to Iraq without facing harm also suggest that he does not have a profile of adverse interest. The Tribunal recognises that past harm is not the relevant question, however, past harm could be a reasonable guide to future harm.
The Tribunal has decided to give the applicant the benefit of the doubt and accepts as plausible that the applicant is of the Sunni faith. The Tribunal discussed with the applicant information about Sunnis in Iraq. The Tribunal acknowledged that Sunnis could face violence and that DFAT’s report of June 2017[13] refers to an increase in societal discrimination and violence. The Tribunal has carefully considered the situation in Iraq, however, and for the reasons stated the Tribunal is not satisfied that the applicant has a profile that could potentially mean that he would be targeted on the basis of his Sunni faith, or for being a Bidoon (registered as found by the Tribunal), or for having lived in Kuwait, or on any other basis.
[13] DFAT Country Information Report Iraq, 26 June 2017
Although the situation as reported in DFAT’s most recent report of 2017 is somewhat different to when the applicant went to Iraq on the previous two occasions, it does suggest that the applicant does not have an adverse profile. The fact that no harm has come to the applicant’s family, particularly his sons in Iraq is further evidence of low risk of future harm. The Tribunal acknowledges that no one can guarantee the personal safety of the applicant and that the security situation in Iraq is somewhat volatile. DFAT’s report of 2017 refers to the south of Iraq as being more secure than other parts of the country, although there have been suggestions of deterioration of law and order in Basra.
The Tribunal discussed with the applicant the information contained in the delegate’s decision record relating to the International Treaties Obligations Assessment (ITOA) completed [in] February 2017. The Tribunal noted that the assessment found that the applicant is not a person in respect of whom Australia has non-refoulement obligations. Although the Tribunal has to make its own assessments, the Tribunal gives significant weight to the findings of the ITOA.
The Tribunal has carefully considered the applicant’s circumstances and in consideration of the evidence as a whole, the Tribunal is not satisfied that if the applicant were to return to Iraq, there is a real chance, or a real risk of serious or significant harm occurring to the applicant on any of the claimed basis.
The Tribunal has also considered that if the visa were to be cancelled, the applicant would be subject to s.46(1) of the Act barring an application for a further Visa. Moreover, pursuant to s.46A(1B), he would be barred from making a further application for a protection visa while in the migration zone, unless the Minister intervenes and lifts the bar. He may also become an unlawful non-citizen and could be liable for detention under s.189 and s.198 of the Act. The Tribunal is of the view that these are intended legal consequences of cancellation and they do mean that the visa should not be cancelled.
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. The Tribunal has had regard to all the relevant circumstances, independently and cumulatively. On balance, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Antoinette Younes
Senior MemberATTACHMENT – 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.
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