1731415 (Refugee) - [2019] AATA 5962

1731415 (Refugee) [2019] AATA 5962 (26 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731415
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Jane Marquard
DATE:26 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 26 June 2019 at 9:14am

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – validity of s 107 notice – incorrect answers on protection visa application – ethnicity – stateless Bidoon or Iraqi citizen – Iraqi identification cards – religion – minority Sunni Muslim – imputed political opinion – worked at foreign military base, suspected of spying – voluntary travel to Iraq on four occasions for lengthy periods – exercise of discretion – current conditions in Iraq – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 99, 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
Brar v MIAC [2011] FMCA 435
Gido-Christian v Minister for Immigration [2007] FMCA 825
Lie v Minister for Immigration and Border Protection [2018] FCCA 843
MIAC v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Saleem v MRT [2004] FCA 234
SZEEM v MIMIA [2005] FMCA 145
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 (the Department) to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant arrived in Australia from Iraq by boat on 16 November 2011. He claimed to be a stateless, Sunni Bidoon who had been living in Iraq and was accused of being an [foreign] spy as he worked on a [foreign military] base. He was granted a protection visa [in] August 2012.
The delegate of the Department cancelled the protection visa on the basis that the applicant gave or provided incorrect answers to eight questions in his application for the visa, in contravention of s.101 of the Act. 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 provided a response to the Department in regard to the intention to cancel and also appeared before the Tribunal on 12 March 2019 to give evidence and present arguments. He also provided written submissions. 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 set aside.
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.
Extracts of the Act relevant to this case are attached to this decision.
Validity of s.107 notice
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.
The Tribunal is satisfied that the delegate reached the necessary state of mind to issue the notice, as it was stated specifically that the delegate formed the view that there had been non-compliance based on the incorrect answers set out in detail in the notice.
At the Tribunal hearing, the applicant raised the issue of whether the notice was valid. This was because the applicant was initially assessed under the Protection Obligations Determination (POD) process. On 26 January 2012 he attended a POD interview. On 9 August 2012 the Minister withdrew the bar which prevented him from lodging his protection visa application and he lodged a protection visa application using Form 866. In his protection visa application, in his answers to Questions 43 to 67, he stated ‘please refer to my claim that was assessed favourably’. The claim which he referred to as being assessed favourably was the statutory declaration in support of his POD. The applicant submitted therefore that these answers, taken from this statutory claim in a different process, were not incorporated by Form 866 as they were not raised in an application form made for the purposes of s.46 and therefore the notice of intention was invalid.
The obligations to provide correct information and the cancellation power that can be exercised for non-compliance with those obligations, apply to all visas where the visa application was made on or after 1 September 1994 (s.115(1) of the Act). Section 101 provides that non-citizens must fill in or complete application forms in such a way that all questions are answered and no incorrect answers are given or provided. For the purposes of these provisions, s.99 provides that information given or provided on behalf of a non-citizen to the Department or Tribunal in relation to the application is taken to be an answer in the application form. The question is whether the answers in the POD statutory declaration were given or provided on behalf of the applicant to the Department in relation to the application, as they were given at an earlier time.
Section 99 has a very broad deeming effect that considerably expands the ambit of the obligations to include a broad range of information which may be properly regarded as information for the purposes of s.101.[1] The information does not need to be in a form prescribed by s.97 as it can be made orally or in writing under s.99. In Lie v Minister for Immigration and Border Protection [2018] FCCA 843, the decision maker took into account subsequent information provided to the Department outside of the application form, which, pursuant to s.99, was taken to be information given or provided for the purposes of the application. Considering the broad ambit of s.99, the Tribunal is satisfied that the answers in the POD statutory declaration comprised information given or provided on behalf of the applicant in relation to the application, because of the words ‘please refer to my claim which was assessed favourably’, which expressly incorporated the answers in the POD statutory declaration into the protection visa application.
[1] Gido-Christian v MIAC [2007] FMCA 825
The Tribunal is satisfied therefore that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The next 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.
Grant of protection visa on 14 August 2012
In the Protection Obligation Evaluation the delegate of the Department was not satisfied that the applicant met the refugee or complementary protection criteria. On 11 July 2012 the Independent Protection Assessment Office found that the applicant was owed protection obligations. The assessor found that he was a Kuwait-born Bidoon and that he had a well-founded fear of persecution on the basis that he had worked on a [military] base and was suspected of being a [foreign] spy. The applicant was granted a protection visa [in] August 2012.
Travel by applicant to Iraq since the grant of the protection visa
The applicant voluntarily travelled to Iraq on four occasions after the grant of the visa. The first trip was within three months of the grant of his visa. The travel was as follows:
·He departed Australia [in] November 2012, and returned [in] February 2013.
·He departed Australia [in] June 2014, and returned [in] September 2014.
·He departed Australia [in] August 2015 and returned [in] November 2015.
·He departed Australia [in] June 2016 and returned [in] September 2016.
On each occasion, in his outgoing and incoming passenger cards he declared the country where he would be spending or had spent most of his time to be Iraq.
On his return to Sydney Airport [in] September 2016, after his fourth trip, the applicant was interviewed by an Australian Border Force official and said that he was travelling to [City 1] via Basra to visit his family. The official found numerous documents in his possession. These included:
·Current Australian Titre de Voyage with entry stamp to Basra airport for the relevant travel dates and a travel itinerary.
·Previous Titre de Voyages for the other visits with entry and exit stamps to Basra airport.
·Two Iraqi Civil Status Identification (CSID) cards in his name, both issued in [Village 1], Thi Qar Province, one [in] 2009 and one [in] 2011. The cards stated that the visa holder was born in [City 1], Iraq.
The partner visa application [in] April 2013 by the applicant’s spouse
The applicant’s spouse lodged an application for a [Provisional Partner] visa, along with their [number] children. In that application she provided a marriage certificate, an Iraqi National Certificate (INC), Iraqi CSID cards, and copies of Iraqi passports for herself and the [children]. The INCs for her children listed the applicant as their father, and stated that he was born in [City 1].
Particulars of non-compliance set out in the s.107 Notice
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act. This provision requires that a non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided. The non-compliance with this provision was identified by the Department as set out in the following paragraphs.
In Question 9 of the Form 866, the application for a protection visa, the applicant was asked to name his place of birth. He replied ‘[location], Kuwait’. The Department found that an incorrect answer was given, as the CSID cards issued to the applicant in 2009 and 2011 stated that he was an Iraqi citizen born in [City 1], Iraq, and not Kuwait. Further, the applicant’s children all have CSID cards, INCs and Iraqi passports, which the Department found to be strong evidence that the children were Iraqi citizens, as was the applicant. The Department referred to the Iraqi Nationality Law No.26 (2006), which regulates INCs. INCs are issued by the General Nationality Directorate of the Ministry of the Interior and are evidence that a person is an Iraqi citizen.
In Question 20 of the Form 866, the applicant was asked for his citizenship at birth, and he answered ‘stateless’. The Department found that this was incorrect as an ABF officer confirmed on his arrival to Sydney airport [in] September 2016 that he had two Iraqi CSID cards. According to country information obtained by the Department, CSID cards are required by law for Iraqi citizens and issued upon the production of a birth certificate. They are used to access public services, healthcare, employment, education and housing and to obtain a passport. The CSID card states that the applicant is an Iraqi citizen and the Department found that it was therefore incorrect to state that he was stateless. Further, his children hold Iraqi citizenship as evidenced by their INCs and, according to country sources obtained by the Department, these would have been issued if an INC belonging to their father was provided.
In Question 22 of Form 866, the applicant was asked if he held citizenship or was a national of any other country. He answered ‘no’. The Department found this to be incorrect as he was found to be in possession of two CSID cards issued in his name from 2009 and 2011, indicating that he was born in [City 1] and that he is an Iraqi citizen.
In Question 23 of Form 866, the applicant was asked if he had a right to enter and reside in any country other than his country of nationality and he answered ‘yes, Iraq’.
In Question 24 of Form 866, the applicant was asked if he was stateless and if so, how, when and why he became stateless, and he answered ‘since birth’. The Department found this to be incorrect as he was found to be in possession of CSID cards issued in his name which indicate he was born in [City 1].
In Question 43 of Form 866, the applicant was asked why he left his country. In Question 44 he was asked if he had experienced harm in that country. To these questions he answered ‘yes, please refer to my claim that was assessed favourably’.
In Question 45 he was asked what he feared may happen to him if he returned to that country. In Question 46 he was asked who he thought might harm or mistreat him if he went back. In Question 47 he was asked what he thought would happen if he went back. In Question 48 he was asked if he thought that the authorities of that country could and would protect him if he returned. To all of these questions he answered ‘please refer to my claim that was assessed favourably’.
At Question 67, Declaration, the applicant signed and dated the document, [August] 2012, and acknowledged the following statement: ‘The information I have supplied or caused to be supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail. I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled’.
The ‘claim that was assessed favourably’ to which the applicant referred, was a Statutory Declaration dated 18 January 2012 in support of his POD and Statement of Claims, in which he stated that he was born in Kuwait to stateless parents who were descendants of Bedouin tribes. He said that in August 1994, his family was deported to Iraq as stateless, namely Bidoon persons, were not recognised by Kuwait. He said that after a couple of months, Saddam Hussein sent all Bidoon people back to Kuwait.
He went on to state that in October 1994 he and his family were transported back to Iraq, where he was deprived of Iraqi citizenship, and denied civil and legal rights, including education and medical treatment, as he was born in Kuwait. He said that he never attended school. He said that his family were Sunni Muslims and were residing in a predominantly Shia area of Iraq.
He said that in June 2006 a friend employed at [a] Military Base near [City 1], Iraq, asked him to work there. The base was used by [foreign forces] for training. The visa holder [performed job tasks]. He claimed that in September 2006 a man came to his house in [City 1] and told his wife that the Mahdi army and Badr forces, which were Shia groups, wanted him for investigation. He went to see this person at his house, and was questioned about his work at the base. The man accused him of being a spy for the [foreign forces] and passing on information about Shia persons. Days later, while driving his [vehicle], a man stopped him and entered the [vehicle]. This man was wearing a balaclava and threatened that if he went on the [military] base again he would be killed. He decided to leave [City 1] for Basra in October 2006 and three days later his house was burnt down by the Mahdi army.
He claimed that in July 2011 his wife received a threatening letter stating that the Mahdi army would kill him and his children. He believed that persons from the [City 1] government offices had informed them that he had moved to Basra. He decided to relocate his family to his wife’s parents’ house in [Village 1] which is [distance, direction] of [City 1]. The applicant remained there for a few months before deciding to flee Iraq.
The Department found that his answer to Question 43 was incorrect in that he stated that he left Iraq because he was a stateless Kuwaiti Bidoon, and as a Sunni Muslim he and his family were threatened by Shia groups. This answer was incorrect in that he was found to be in possession of CSID cards which indicate he was an Iraqi citizen born in [City 1]. Further his children have INCs which indicated that he was an Iraqi citizen. Also he travelled to Iraq four times indicating that he did not hold the adverse profile he claimed and did not have a fear of returning since he remained there for a total of 319 days without experiencing harm.
The Department found that his answer to Question 45 was incorrect in that he stated that if he was forced to return to Iraq he would be killed. The Department found this to be incorrect as he returned to Iraq within three months of grant of his protection visa, and on three more occasions, for a total of 319 days, without experiencing any apparent harm.
The Department found that his answer to Question 46 was incorrect in that he said that he would be harmed by the Mahdi army, the Badr forces, anti-occupation insurgents, Shia extremists and other militia groups. The Department found this to be incorrect as he voluntarily travelled to Iraq on four occasions and stayed there for 319 days, a significant amount of time, without any harm from the groups he named.
The Department found that his answer to Question 48 was incorrect in that he stated that the authorities in Iraq could not give him protection. However he returned on four occasions for a total of 319 days without experiencing any harm.
The Department found that his claim that he was stateless was fundamental to his claims. This incorrect information was material to his claims.
Applicant’s response
The applicant submitted to the Department that he was a Kuwaiti born stateless person. He claimed that his father lived in the desert as a ‘bidoin” and did not acquire Iraqi citizenship. The applicant said that although his wife and children were eligible for Iraqi citizenship this did not mean he was an Iraqi citizen. His wife obtained citizenship because her father could prove Iraqi ancestry confirmed through tribal links. She only obtained citizenship recently and was stateless prior to that. He said that he was provided with an identification card in 2009 but never a citizenship card because his parents were not Iraqi. His ID card was issued for the purposes of facilitating his life but he was not allowed an Iraqi driver’s licence or passport. He claimed that his place of birth was listed as [City 1], as persons of foreign birth are not allowed to list foreign places of birth. He claimed that he had provided the Department with his original ID card at the time of arrival as well as his family’s ID cards.
He claimed that he travelled back to Iraq for the purpose of moving his family from [Location 1] to [Location 2], then [Location 2] to [Location 3] and then to [Location 4], because they had been threatened at their place of residence. Evidence of rental agreements were shown to prove frequent relocation. The fourth trip was because his son, [Name], had been assaulted and he tried to move his family to [Country 1].
He provided:
·A copy of his Kuwaiti birth certificate.
·Copies of Iraqi identity cards in his name issued [in] 2009 and 2011.
·A copy of a hospital invoice in the name of the visa holder’s son.
·Copies of Iraqi residential leases.
·A copy of a letter from [Country 1] visa section stating that the applicant and his obtained entry visas to [Country 1], however, the rest of his family had their applications refused.
Evidence to the Tribunal

At the Tribunal hearing, the visa holder confirmed that his father and mother were born and grew up in the desert of Kuwait at a time when there were open borders. The Kuwaiti government did not issue them with passports but they had receipts for citizenship for Kuwait, but they never used them as they were unaware of the significance of the documents. His family were nomads moving from one place to another and they moved between [Country 2], Kuwait and [other countries]. They were illiterate and uneducated.
He confirmed that he was also born in Kuwait. He said that he could not work formally, but he did simple jobs such as selling goods. His father owned [animals], and the family looked after these animals in the desert.
In 1994 his family, including his [siblings], were moved out of Kuwait to [City 1], Iraq. He was about [age] years old at that time. He was asked if they got Iraqi citizenship after they moved to Iraq, and he said that they were given identification cards during Saddam Hussein’s rule, but they had no rights like other people. They lived in Iraq as stateless Bidoons.
His parents passed away ‘perhaps’ two years after they moved to Iraq. His [sibling] is now living in Australia. His [siblings] are living in Iraq and are married with children. He is not sure where they are as when he travelled he saw his immediate family only. He said that he does not know if his [siblings] are Iraqi citizens, but if they married Iraqis it is possible they were able to ‘get the correct documents’.
He married in 1994. His wife was also born in Kuwait, and went to Iraq from Kuwait at the same time as his family. They are from the same tribe. They were not ever given rights by the Kuwaiti government. When her family moved from Kuwait to Iraq, her parents had tribal connections. Bribery was common, so it is possible they have Iraqi passports, he is ‘not sure’.
He lived in [City 1] prior to moving to Australia.
He submitted that the grant of his protection visa was not based wholly or partly on his statelessness, but rather on his ethnicity (being a Kuwaiti-born Bidoon), his religion (being an adherent of the Sunni Islamic faith) and his imputed political opinion (being a family member of people who have worked for foreign forces and for having resisted political influence). He argued that his statelessness was not sufficient to attract refugee status pursuant to Australian law. It was argued that in cancelling the visa, the delegate erred in a similar manner to that identified in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; in that the delegate acted unreasonably in the exercise of discretion to cancel the visa on the basis of what is ‘supposed to be an incorrect information that did not form the basis for the grant of the protection visa’.
It was argued that his subjective fear of harm when he applied for refugee status was supported by country information and that his return did not ‘prove that the events he described in Iraq are untrue or that he did not have a subjective fear when he applied’. It was also argued that when he returned to Iraq, he took steps to minimise the harm, moving his family from one place to another.
He also submitted that as he provided the Department with his CSID as part of his protection visa application, and was granted a protection visa on the basis of the information provided, it could not be said that he provided incorrect information.
In relation to the CSID’s reference to his place of birth as ‘[City 1]’, he argued that country information suggests that a child born abroad has his or her father’s date of birth on their passport, suggesting that birthplace in Iraqi identification does not always reflect reality.
Was there non-compliance in the way described in the s.107 notice?
In Question 9 of the Form 866, the application for a protection visa, the applicant was asked to name his place of birth. He replied ‘[location], Kuwait’. The Department found that an incorrect answer was given, as the CSID cards issued to the visa holder in 2009 and 2011 stated that he was an Iraqi citizen born in [City 1], Iraq, and not Kuwait. Further, the applicant’s children all have CSID cards, INCs and Iraqi passports, which the Department found to be strong evidence that the children were Iraqi citizens, as was the visa holder. The Department referred to the Iraqi Nationality Law No.26 (2006), which regulates INCs. INCs are issued by the General Nationality Directorate of the Ministry of the Interior and are evidence that a person is an Iraqi citizen.
The Tribunal is not satisfied the applicant gave or provided an incorrect answer to Question 9. The Tribunal accepts the applicant’s explanation that when his family moved to Iraq, when Hussein was in power, the authorities issued CSID cards to his family. The Tribunal is satisfied based on his birth certificate and the particulars provided about his family’s origins and travel that he was born in Kuwait as indicated. Further, he provided country sources that suggest that people born outside Iraq might state on official documentation that they are born in Iraq.
In Question 20 of the Form 866, the applicant was asked for his citizenship at birth, and he answered ‘stateless’. The Department found this to be incorrect as the applicant held CSID cards indicating he was born in [City 1]. The Tribunal is satisfied that the applicant was stateless at birth as he was born in Kuwait and did not have any citizenship at that time. The Tribunal is not satisfied therefore that the applicant gave or provided an incorrect answer to Question 20.
In Question 22 of Form 866, the visa holder was asked if he held citizenship or was a national of any other country. He answered ‘no’. In Question 24 of Form 866, the visa holder was asked, if he was stateless, how, when and why he became stateless, and he answered ‘since birth’.
The Department found these answers to be incorrect as he was found to be in possession of two CSID cards issued in his name from 2009 and 2011, indicating that he was born in [City 1] and that he is an Iraqi citizen. According to country information obtained by the Department, CSID cards are required by law for Iraqi citizens and issued upon the production of a birth certificate. Further, the applicant’s children all have CSID cards, INCs and Iraqi passports, which the Department found to be strong evidence that the children were Iraqi citizens, as was the applicant. According to country sources obtained by the Department, INCs would have been issued if an INC belonging to their father was provided.
The Tribunal discussed these issues in some detail with the applicant. He said that when his family moved to Iraq he was given the CSID card – ‘that was how the system worked’ – ‘you just paid a lot of money to get the documents’. He said that when he entered Iraq his family ‘could not move and could not go about daily life’. They paid money in order to obtain the identification cards, and he does not know if the cards were genuine or not. He was asked if the CSID cards indicate that he is an Iraqi citizen. He said that he is not an Iraqi citizen and the card was used to move around checkpoints. He was asked if the purpose of the CSID card was to show that he was a citizen. He again said that he is not an Iraqi citizen. The Tribunal put to him that country sources indicate that cards are used for citizens to access public services, healthcare, employment, education and housing and to obtain a passport. He said that he had no right to housing and education. He pays for two of his children’s education. His family has no accommodation. They must pay money to see a doctor. He said that on his marriage certificate and his identification cards, the information is different. The register number is not identical. He said that ‘that is how things happen in Iraq. They do not have accuracy and they do not have records’. His father and mother did not belong to any country. Later they gained independence and were offered some form of citizenship and did not take it up.
The applicant was asked how his wife and children could obtain nationality certificates if she and her parents were not from Iraq. He said that his wife went to ask her father for help and he does not know if the passports are false or genuine. The applicant was asked whether his children hold Iraqi citizenship as evidenced by their passports and INCs. He said that his wife’s father arranged for these documents to be issued for the purpose of the spouse application. He has no idea if the documents are genuine. He was asked if he acknowledged that these documents indicate that his family are Iraqi citizens. He said that they are not Iraqi citizens.
The Tribunal put to him that the Iraqi Nationality Law No.26 (2006) regulates INCs and they are issued by the General Nationality Directorate of the Ministry of the Interior and are evidence that a person is an Iraqi citizen. A passport of a country also indicates that a person is a citizen of the country. He said that the passports are not supported by existing records or information. They could have been arranged through bribery. The Tribunal asked the applicant if, after his family were deported from Kuwait to Iraq in August 1994, they obtained citizenship with about 47,000 Bidoon at the time as part of ‘makremiayah’. He said that the Iraqi authorities would not grant nationality to Bidoons unless the father and grandfather were Iraqis and this did not apply to them.
The Tribunal is satisfied that the applicant gave or provided incorrect answers in questions 22 and 24. According to independent sources[2], the CSIDs are still in use in Iraq although from March 2016 the Iraqi government began issuing a new National Identity Card. When applying for a CSID, according to country information, a citizen had to put the name of their father, paternal grandfather, mother, maternal grandfather and place of birth. Applications also needed to contain the name of the issuing regional office, a register number indicating the number of the family book in which the person is registered, as well as the page number in the family book. Applicants had to provide a birth certificate and the ID card of a close relative such as a father or grandfather. Iraqi nationals were issued such cards on the basis of the information in the family register. The cards also contain a hologram and security fibres as a security element. The offices check the information provided against the family registers.[3] Thus, as only Iraqi nationals are granted CSID cards, based on information in the family register, the applicant must be an Iraqi citizen.[4] This is also set out in legislation.[5] Proof of citizenship must be shown when applying for a renewal[6]. Stateless Bidoons could not therefore apply for or renew their cards without showing they were Iraqi citizens.[7] A page on the Iraqi Consulate Canada website states that a person seeking to renew their CSID would be required to show an Iraqi nationality certificate, as well as detailed personal information.[8] The United Nations High Commissioner for Refugees provided the following information in September 2010:
The Bidouns who were not granted the Iraqi citizenship constitute the majority and live out of the city as nomads, scattered mainly in the desert at the border of Basra with Samawa and Thi-Qar governorates. These Bidouns do not hold Iraqi ID cards, nationality certificates or PDS cards, their children are not registered and they do not have access to health facilities..[9]
[2] Danish Immigration Service and Landinfo, Country of Origin Report Kurdistan region of Iraq (KRI), November 2018, Landinfo, Iraq: Travel documents and other identity documents, 16 December 2015, Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq, 9 October 2018
[5] Iraq: Civil Status Law (1974), Republic of Iraq, 24 August 1974
[6] Iraqi Ministry of Foreign Affairs: Iraqi Consulate to Canada-Ottawa, Iraqi Civil Status Identity Card (Ahwal Madaneeya)
[7] Kamal, A, Niqash, Homeless at Home: Iraq’s Displaced Persons Cause Ethnic Tensions, 27 July 2011, Department of Foreign Affairs and Trade, RRT Country Information Report – IRQ37183- The Bidoon, 13 September 2010
[8] Iraqi Ministry of Foreign Affairs:Iraqi Consulate to Canada-Ottawa, Iraqi Civil Status Identity Card (Ahwal Madaneeya)
[9] United Nations High Commissioner for Refugees (UNHCR), Bidouns in Iraq, 8 September 2010
The United Nations High Commission for Refugees has stated in relation to those Bidoons who received citizenship:
Bidouns received support from the former regime (mainly Tarek Azziz) who provided them with nationality certificates and passports and considered them supportive of the Iraqi regime, when they entered Iraq from Kuwait. The former regime provided a single opportunity for the Bidouns called ‘Makeremiayah’ which refers to a generous act aimed at finding a solution to the ‘legal limbo’ in which the Bidouns found themselves after their deportation from Kuwait’.. the tribes play an important role in the naturalisation of many of them.. provided they do not declare ‘Kuwait’ as their place of birth.[10]
[10] United Nations High Commission for Refugees (UNHCR), email, 8 September 2010
This information collectively is strong evidence that a person who has a CSID card which has been renewed is an Iraqi citizen. Further, the fact that his wife and children have nationality certificates and Iraqi passports does suggest that he is an Iraqi citizen, although it is possible that they could have acquired citizenship if he was not a citizen. Country sources indicate that nationality certificates are issued to all Iraqi nationals upon application. They must contain a father and mother’s full names and place of birth. In order to obtain these, a father’s or brother’s nationality certificate must be provided. However a person born to an Iraqi father or mother is entitled to citizenship. The applicant was asked why, in his protection visa interview with the Independent Protection Assessment Office, he stated that he had no birth certificates for the children and that his wife and children were also stateless. In his response to cancellation, he has said that his wife and children only got citizenship recently. Yet their passports were issued [in] 2011 in Thi Qar Province. He arrived in Australia [in] November 2011 and after this stated in his request for a POD that his wife and [number] children were stateless. He responded that his wife asked him to send $1,000 to give to someone to issue the passports. He had no idea that she had the passports and she did not explain. The Tribunal asked him about his response to the Department when he said that his wife acquired Iraqi citizenship because her father was able to prove Iraqi ancestry through tribal links, and she was only recently granted citizenship and was until then a stateless person. The Tribunal said that he did not mention to the Department that there was bribery involved. He said that she needed $1,000 and he had no idea what it was for. The Tribunal put to him that he had seen her numerous times since 2011 when passports were issued so would have been able to ascertain how the passports were obtained. He said that he was in Basra at that time. He was asked if he was told about the issue of the passports since then and he said he had no knowledge. He found out about the passports when he last visited Iraq. The representative submitted that six of the CSIDs provided were issued in 2009. His father-in-law started the procedures to obtain the CSIDs when he was in [City 1]. This might be a reason he did not know about them during that time. It was also submitted that the wife and children can be Iraqi citizens although the applicant is not. The Tribunal is not satisfied that the applicant would not know whether the documents were fraudulent or genuine, given that he has been in constant communication with his wife. Further, the Tribunal notes that children under the age of 10 can only be issued a passport if their father can document Iraqi citizenship[11] and at least one of his children was under 10 at the date of application. Given his uncertainty about the status of his own documents, and those of his family, and the country sources which indicate that people with CSIDs, nationality certificates and passports are Iraqi citizens, the Tribunal is satisfied that the applicant is an Iraqi citizen.
[11] Landinfo Country of Origin Information Centre, Iraq: Travel documents and other identity documents, 16 December 2015, p.9 <>
In light of this information, the Tribunal is satisfied that the applicant gave or provided incorrect answers in Questions 22 and 24 as the applicant was not stateless and was a citizen of Iraq, as evidenced by his CSID cards, and suggested by the fact that his wife and children have CSIDs, Iraqi nationality certificates and passports, and he was able to work. According to the Department of Foreign Affairs and Trade, 47,417 individuals are said to have been granted Iraqi nationality by the previous regime during the one-time assistance package called makremiayah. To obtain citizenship Bidoon had to declare that Kuwait was not their place of birth and often needed sponsorship by a local tribe. Since 2003 it has not been possible for Bidoon to claim citizenship in Iraq.[12] While the representative referred to the Landinfo report which suggests that 50% of CSIDs are forged and manufactured, the applicant said that they were given them when they first went to Iraq, and he was not certain if the CSIDs were forged, nor whether his wife and children’s passports were genuine or forged. Given that he has had his ID cards renewed and given that his family have Iraqi passports, the Tribunal is satisfied that he is an Iraqi citizen, based on country information about the issue of these documents.
[12] Department of Foreign Affairs and Trade, RRT Information Request: IRQ37183, Report no 1197, 14 September 2010
In Question 43 of Form 866, the visa holder was asked why he left his country. In Question 44 he was asked if he had experienced harm in that country. To these questions he answered ‘yes, please refer to my claim that was assessed favourably’. In Question 45 he was asked what he feared may happen to him if he returned to that country. In Question 46 he was asked who he thought might harm or mistreat him if he went back. In Question 47 he was asked what he thought would happen if he went back. In Question 48 he was asked if he thought that the authorities of that country could and would protect him if he returned. To all of these questions he answered ‘please refer to my claim that was assessed favourably’.
The ‘claim that was assessed favourably’ to which the visa holder referred, was a Statutory Declaration dated 18 January 2012 in support of his POD and Statement of Claims, in which he stated that he was born in Kuwait to stateless parents who were descendants of Bedouin tribes. He said that in August 1994 his family was deported to Iraq as stateless, namely Bidoon persons, were not recognised by Kuwait. He said that after a couple of months, Saddam Hussein sent all Bidoon people back to Kuwait.
He went on to state that in October 1994 he and his family were transported back to Iraq, where he was deprived of Iraqi citizenship, and denied civil and legal rights including education and medical treatment as he was born in Kuwait. He said that he never attended school. They were Sunni Muslims and were residing in a predominantly Shi’a area of Iraq. In June 2006 a friend employed at [a] Military Base near [City 1], Iraq, asked him to work there. The base was used by [foreign forces] for training. The applicant [performed job tasks]. He claimed that in September 2006 a man came to his house in [City 1] and told his wife that the Mahdi army and Badr forces, which were Shi’a groups, wanted him for investigation. He went to see this person at his house, and was questioned about his work at the base. The man accused him of being a spy for the [foreigners] and passing on information about Shi’a persons. Days later, while driving his [vehicle] a man stopped him and entered the [vehicle]. This man was wearing a balaclava and threatened that if he went on the [military] base again he would be killed. He decided to leave [City 1] for Basra in October 2006 and three days later his house was burnt down by the Mahdi army.

He claimed that in July 2011 his wife received a threatening letter stating that the Mahdi army would kill him and his children. He believed that persons from the [City 1] government offices had informed them that he had moved to Basra. He decided to relocate his family to his wife’s parents’ house in [Village 1], which is [distance, direction] of [City 1]. The applicant remained there for a few months before deciding to flee Iraq.
The Department found that his answer to Question 43 was incorrect in that he stated that he left Iraq because he was a stateless Kuwaiti Bidoon, and as a Sunni Muslim he and his family were threatened by Shi’a groups. The Department found this answer to be incorrect in that he was found to be in possession of CSID cards which indicate that he was an Iraqi citizen born in [City 1]. Further, his children have INCs, which indicate that he was an Iraqi citizen.
For the same reasons as set out above in relation to Questions 22 and 24, the Tribunal is satisfied that the answer to Question 43 was partly incorrect in that he was not stateless and therefore could not have left the country for this reason.
The answer to Question 43 also referred to him leaving the country because he and his family were threatened by Shi’a groups. The answer to Question 45 suggested that if he was forced to return to Iraq he would be killed. The answer to Question 46 referred to him being harmed on return by the Mahdi army, the Badr forces, anti-occupation insurgents, Shi’a extremists and other militia groups. The answer to Question 48 suggested that the authorities in Iraq could not give him protection.
The Department found the answers to Questions 43, 45, 46, 47 and 48 to be incorrect as he travelled to Iraq four times, indicating that he did not hold the adverse profile he claimed and did not have a fear of returning since he remained there for a total of 319 days without experiencing harm. The Department noted that the first time he travelled was within three months of the visa grant. The Department found that his answers to these questions were incorrect in that he returned to Iraq for a total of 319 days without experiencing any apparent harm.
Asked at the Tribunal hearing to comment on how he could return to Iraq four times for lengthy periods of time if he had a genuine fear of harm, he said that he travelled back for his wife and children. The Tribunal put to him that he had left his wife and children behind when he came to Australia, claiming that he feared being killed. He said that his children and his wife are the most important things to him. They are ‘his life’ and he is willing to lose his life for them. Two of his sons are in [Country 3]. He went to Iraq because their lives were in danger. He feels terrible for them. His wife has told him that people came to the house wanting the children. They asked where [their] father was, and the children said [their] father was not there. He does not know who these people are. Asked when this took place, he said it occurred from time to time. The people said [their] father was a traitor. In 2016 his son was involved in an incident in the street and his nose was broken. He had to have an operation. He was asked how it happened and he said he does not know the details.
He was asked if the people looking for him could not have found him if he travelled back four times. He said that when he went to Iraq he was in hiding and used his CSID. He was asked if he was in hiding for the entire 319 days. He said that he was at home for the whole duration and did not go shopping. He took medication with him so did not have to go out and obtain it. He was asked if he was not moving his family around on these occasions as claimed by him. He said that he was moving them but he paid removalists to do this for him. He moved his family around to different places near [City 1]. He said that he was concerned for their safety because people came to the house looking for him. He said that at Basra airport he changed his clothing into an outfit with a head cover, and paid extra money for a car to ensure that no one would be in the car. He did not allow the children to talk at all about him. He was asked why he needed to go so often and stay so long if he feared for his life. He said that his wife and children are the most important people to him and he sacrificed himself for them. He was asked why his wife’s family could not have helped them relocate. He said that her parents are elderly and ill. In relation to the second trip he was asked why there was no reference to a lease. He said that sometimes you could rent a house without a lease. He was asked if he was concerned for his family why he would not move them out of [City 1] altogether or into a Sunni dominated area. He said that he tried to move them to [Country 1] but some got visas and others did not.
The Tribunal is not satisfied that he returned to Iraq because people were looking for him and threatening his family. If someone had attacked his son because of him, as claimed, it would be expected that he would know the details of it. However, he was very vague as to what took place in regard to this and the other incidents. Further he claimed that he returned to relocate his family, however, when asked how he could do this while in hiding, he then said he organised for others to do it. There was no lease document in relation to the second trip. Further if people were seeking him out, it is likely that they could find him as he was in [City 1] the whole time he was in Iraq. The Tribunal does not accept therefore that people were threatening his family or that he was in hiding the whole time he was in [City 1]. The Tribunal is satisfied that he returned to Iraq simply to visit his family, about whom he was concerned, given that he has [a number of] children.
The Tribunal notes that travelling back to Iraq when he had very recently been granted protection on the basis of a fear of being killed or otherwise seriously harmed by the Mahdi army, the Badr forces, anti-occupation insurgents, Shi’a extremists and other militia groups, does suggest that he did not have a genuine fear of these groups when he applied. Furthermore, staying in Iraq for a lengthy period, 319 days, in the general region where he claimed to fear harm, also does indicate that he did not have the fears claimed.
The applicant has submitted that Condition 8559 (which applies to applicants who entered the country after 3 June 2013) did not apply to his case as he entered the country prior to 3 June 2013. Condition 8559, as referred to in PAM 3, provides that the holder of a protection visa must not enter the country against which they were found to engage Australia’s protection obligations unless the Minister had approved the visit in writing. The Tribunal accepts that Condition 8559 did not apply to this applicant. However, the purpose of this review is to establish whether there are grounds for cancellation because incorrect answers were given in the application.
The applicant also submitted that Condition 8559 allows for approval to travel to a person’s country of reference for a short period where compassionate or compelling circumstances exist justifying the travel. It was submitted that this condition indicates that policy makers acknowledge that a protection visa holder might be willing to put themselves at risk by returning to their country of reference in certain exceptional circumstances. While condition 8559 does not apply to the applicant, it was submitted that the principles are relevant in considering whether his return was compatible with a fear of being killed or persecuted. It was also submitted that under current policy directions of the Australian government, it is almost impossible for families to be brought to Australia and this gives some explanation as to why the applicant had to travel to Iraq. According to the applicant, recent Ministerial directions have made it almost impossible to bring partners to Australia. This was another reason for him returning to Iraq.
The Tribunal accepts that Condition 8559 anticipates exceptional circumstances where a person might put themselves at risk by returning to their country of reference. The fact that the applicant returned does not in itself indicate that his answers were incorrect. Instead the Tribunal has considered all the circumstances. The Tribunal has taken into account the following circumstances: his return within three months of the grant of his visa, the number of visits (four), the length of total stay (319 days), the region of stay ([City 1] region) and the reasons for the visits (relocation of family, visit to family). For reasons referred to earlier, the Tribunal does not accept that the applicant’s family were threatened by people and this was a reason for his visit. The Tribunal does accept that the presence of his wife and children in Iraq is a compelling reason to visit, particularly because of the policy directions in relation to families joining applicants in Australia. The issue for the Tribunal is, however, whether he gave incorrect answers in regards to the various questions.
In his answer to Question 43 it was suggested that the applicant left the country because he and his family were threatened by Shi’a groups. The Tribunal accepts that he may have left because he had been threatened by Shi’a groups, on the basis of the findings of the Independent Protection Assessment Office. The fact that extremist groups did not harm him on return does not evidence that he provided incorrect answers about why he left the country. In this respect the Tribunal notes that the courts have stated in the decisions of SZEEM, Saleem and Brar[13], that it is not the role of the Tribunal to assess whether there has been non-compliance by conducting a broad ranging review of the original claims. Similarly, there is no onus on the applicant to satisfy the Tribunal that the original claims were correct. The Tribunal’s role is to consider whether there has been non-compliance in the way described in the notice, without taking a narrow technical approach but in a common sense way looking at the substance of the matter.[14]
[13] SZEEM v MIMIA [2005] FMCA 145; Saleem v MRT [2004] FCA 234; Brar v MIAC [2011] FMCA 435
[14] Gido-Christian v Minister for Immigration [2007] FMCA 825
On this basis, and without evidence to the contrary, the Tribunal is not satisfied that the applicant gave or provided incorrect answers to Question 43.
In Question 45 he was asked what he feared may happen to him if he returned. In Question 47 he was asked what he thought would happen if he went back.The answers suggests that he feared that he would be killed or seriously harmed. The Tribunal notes that that if he feared being killed or seriously harmed it appears unusual that he would have returned so soon after the grant of the visa, and then visited another three times, and stayed for a total period of 319 days. The Tribunal does accept however that the applicant felt compelled to visit, given that he has [a number of] children in Iraq and given the effect of the current Direction 80 under s.499 of the Act, which gives lowest priority to family, including spouse visa applications where the sponsor arrived as a maritime arrival. Question 45 was phrased as (emphasis added) ‘what do you fear may happen to you if you go back’. Question 47 is phrased as (emphasis added) ‘why do you think this will happen to you if you go back’. Notwithstanding that the applicant returned 11 months after the answers in Question 45 and 47, the Tribunal accepts that it is possible that when he gave the answers he feared that he may have been killed or seriously harmed, and that he thought this would happen because of the incidents he related. In the absence of other evidence, the Tribunal is not satisfied that his return visits on their own support a finding that his claims of fear of harm were incorrect.
The Tribunal is not satisfied therefore that the visa holder gave or provided incorrect answers to Questions 45 and 47.
In Question 46 he was asked who he thought might harm or mistreat him if he went back. In Question 48 he was asked if he thought that the authorities of that country could and would protect him if he returned. The answers suggest that he thought that the Mahdi army, the Badr forces, anti-occupation insurgents, Shi’a extremists and other militia groups might harm him and the state could not protect him. The Tribunal is not satisfied that these answers were incorrect. The questions were framed by saying who do you ‘think’. It is possible that he thought that he might be harmed in some way by these groups and that the state could not protect him. The Tribunal is not satisfied therefore that the applicant gave or provided incorrect answers to Questions 46 and 48.
CONCLUSION ON NON-COMPLIANCE
The Tribunal is satisfied that the applicant gave or provided incorrect answers in relation to Questions 22, 24 and part of 43. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way 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 Migration Regulations 1994.
The applicant was asked for submissions on the discretionary factors, including present circumstances, contribution to the Australian community, best interests of his children and wife, Australian family members and any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
Correct information
The Tribunal has considered the correct information. The correct information was that the applicant was a citizen of Iraq rather than being stateless.
The Tribunal gives weight to this consideration in deciding that the visa should be cancelled.
The content of the genuine document
Not applicable.
Whether the decision to grant the visa was based, wholly or partly on incorrect information or a bogus document
The representative submitted that the delegate of the Department, in refusing the applicant’s application, referred to the fact that statelessness is not itself sufficient to attract protection. The Independent Protection Assessment Office (IPAO) made its decision that the applicant had a well-founded fear on the basis of his work at the [foreign military] base.
The Tribunal has considered the decision by the IPAO carefully, including the country information cited. The decision to grant the visa was based partly on incorrect information in that the applicant was not stateless as claimed. However the decision appeared to be based predominantly on the fact that the applicant had been targeted for working on a military base and was threatened for this reason.
The Tribunal gives significant weight in favour or not cancelling the visa, to the fact that it is possible that the visa would have been granted even if the correct information had been given and the applicant had stated that he was an Iraqi citizen.
The circumstances in which the non-compliance occurred
The circumstances were the application of the visa holder, in which he gave incorrect answers about being stateless. The Tribunal notes however that the applicant did provide the Department and IPAO with the CSID cards at the time of decision, and it was therefore open to them to find that the applicant was an Iraqi citizen. The representative submitted that he showed the CSID cards to the Department, saying they were genuine.
The Tribunal gives significant weight to the fact that earlier decision makers made a decision to grant the protection visa even though they had similar information before them. In the interests of consistency, the Tribunal gives this factor weight in favour of not cancelling the visa. The Tribunal also gives weight to the fact that the applicant provided incorrect information in the context of holding a genuine subjective fear of return to Iraq on grounds other than statelessness.
The present circumstances of the visa holder
The applicant has lived in Australia since 2011, and is therefore substantially connected to Australia after living in the country for eight years. The applicant resides in a rural area, [town] and is working there as [an occupation] for [employer].
The visa holder’s wife and [number] children live in Iraq. He has travelled to visit them four times, indicating they are ‘everything to him’ and he feels very concerned about them. He said that he is in a ‘disastrous situation’ as his family is dispersed. Two of his children are in [Country 3] and he has no knowledge of what they are doing there. The rest of his family are in Iraq with his mother. He feels helpless and does not know what to do. He said that he is pleading with the Tribunal to ‘help him out’. He said that he calls Australia the ‘merciful mother’. His wife and children have made a partner visa application for Australia. If the visa is cancelled, this application would be refused with significant implications for the entire family.
He has a [sibling] in Australia, but no other family or connections in the community.
He was asked what is in the best interests of his children and he said that currently it would be for him to leave Australia and return to Iraq. The Tribunal has considered the interests of the [number] children. The Tribunal is satisfied that it it is in their best interests that the applicant be with his children, in line with the Convention of the Rights of the Child (CROC). Article 9 states that state parties shall ensure that a child shall not be separated from his or her parents against their will. Article 18 of CROC states that state parties shall use their best efforts to ensure recognition of the principle that both parties have common responsibilities for the upbringing and development of the child. Given the effect of the current Direction 80[15] under s.499 of the Act giving lowest priority to family, including spouse, applications where the sponsor arrived as a maritime arrival, the pending partner visa application may yet face a prolonged delay even if the cancellation is set aside. While this is a subjective interpretation, on a short-term view it may be in the best interests of the children for the applicant to be with his family in Iraq, but long term it would be in the best interests of the children if they were to be re-united in Australia, given the volatile environment in Iraq. As there is no guarantee that they will be re-united in Australia, the Tribunal has given this factor some but not significant weight in favour of not cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
[15] >
The applicant has co-operated with the Department and Tribunal. However he has continued to assert that he did not provide incorrect information. The Tribunal gives this weight in favour of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister

100. There are no other known instances of non-compliance. The Tribunal gives this weight in favour of not cancelling the visa.
The time that has elapsed since the non-compliance
101. It is eight years since the non-compliance took place. This is a long time for the applicant to have been living lawfully in a new country, making plans, learning the language, settling in, and awaiting re-union with his family. The Tribunal gives this significant weight in favour of not cancelling the visa.

Any breaches of the law since the non-compliance and the seriousness of those breaches
102. There are no breaches of the law since the non-compliance. The Tribunal gives this weight in favour of not cancelling the visa.
Any contribution made by the holder to the community.
103. The applicant has not claimed any contribution to the community, although he has been working in a rural area. The Tribunal gives this some weight in favour of cancelling the visa.
Other factors
104. While 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 Procedures Advice Manual, PAM3, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters. The Tribunal has also considered the following matters:
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
105. If the applicant did not leave voluntarily he would be detained and deported. He would also have difficulties in obtaining further visas (s.46A of the Act).
106. The Tribunal is of the view that these are intended consquences and do not mean that the visa should not be cancelled.
Whether there would be consequential cancellations under s.140
107. There are no known consequent cancellations.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
108. An International Treaties Obligations Assessment (ITOA) dated [September] 2017, prepared by the Department, found that the applicant was not a person in respect of whom Australia had non-refoulement obligations.
109. The delegate, in the ITOA determination, was satisfied that although the applicant was born in Kuwait, he was an Iraqi citizen and not a stateless Bidoon. Therefore he would have access to the same services, and employment opportunities as other Iraqis. The delegate found that the Shi’a militias and groups to which the applicant referred had disbanded and have not been a threat for some time in southern Iraq. The Tribunal asked the applicant to comment on this finding at the Tribunal hearing. He said that the groups who threatened him mainly live around [City 1] and they know the people involved, such that there would be ongoing threat. He was asked about other areas of the country which may be safer. He said that Shi’a groups know the people who had lived previously in Kuwait. Even from his dialect he can be recognised.
110. The delegate preparing the ITOA was of the view that the applicant was born in Kuwait but attained citizenship of Iraq through the ‘makremiayah’ package, when in 1994, approximately 47,000 Bidoons were granted citizenship by the Iraqi government. The delegate referred to the fact that the applicant had declared that his wife obtained Iraqi citizenship though tribal links of her father. The delegate stated that it appeared that the applicant and his wife would have obtained Iraqi citizenship under ‘makremiayah’.
111. The delegate found that the applicant had no subjective fear of harm from militia groups and did not accept that he had been targeted by militias in the past, nor that he was of adverse interest to the Mahdi army, Peace Brigades, Badr forces or any other armed group. The delegate also found on the basis of county information that there was not a real chance of serious harm on the basis of being a Sunni. When asked about these findings, the applicant told the Tribunal that he could not live in Iraq as people are threatened and even his children are not safe from harm. He submitted that Sunnis are a small minority, and most have fled the area of Basra. He said that a ‘mere’ trip to the country does not indicate that there is not a real chance of serious harm. He has a Bedouin accent and because of this it is sometimes difficult to understand him. This was recognised by the delegate. His family suffered persecution and two children needed to leave Iraq. It was submitted that the ITOA failed to look cumulatively at the factors of persecution. It was submitted that country information, including the UK Home Office Report, suggests that perceived collaborators are at risk of serious harm. He said his son said that he was told that his father was a traitor. People in the south think that he revealed information and that he was a spy, exacerbated because he was a Sunni. The question is whether a perceived collaborator could return without harm, and people say that they were in prison because of him.
112.   The Tribunal is satisfied that the applicant is not a stateless Bidoon for the reasons set out earlier. The Tribunal is not satisfied therefore that he faces a real chance of serious harm for reasons of being stateless. However the Tribunal is not satisfied, on the basis of his return visits and incorrect information, that all of his claims relating to past experiences and harm in Iraq are invalid. The Tribunal is satisfied that the applicant is a Bidoon born in Kuwait and that he is a Sunni, and that an assessor from the Independent Protection Assessment Office found that there was a real chance of serious harm based on his employment at a [foreign] base.
113. There have been some significant changes in the country since 2011. ISIL took control of large portions of the country in 2014 and was defeated in 2017. The most recent DFAT Report suggest that the remaining ISIL and other extremist fighters and the increasing influence of the Popular Mobilisation Forces (PMF) also known as Al-Hashd Al-Sha’abi, are the most acute issues facing the current security situation in Iraq. The Report states that although ISIL has lost its self-declared caliphate in Iraq and Syria, it remains a threat to Iraq. It suggests that ISIL will continue to indiscriminately target Iraqi citizens and commit human rights abuses in a small-scale insurgency. The Report also refers to numerous Shi’a groups in Iraq including Saraya Al-Salam (SAS, or the Peace Brigades) partly made up of former Mahdi army fighters.[16] In regards to Sunnis, the DFAT Report states that after the removal of Saddam Hussein, many Sunnis felt marginalised, which was exacerbated by the perception among the majority Shi’a population that the Sunni community was associated with ISIL. The Sunni community report that PMF continue to harass them. DFAT suggests that outside areas recently controlled by ISIL, Sunnis face a low risk of societal violence on the basis of religion. They face a moderate risk of official and societal discrimination in areas where they are a minority. This varies according to local influence and connections.[17] According to the European Asylum Support Office (EASO), the Bidoon community faces a high rate of poverty and a precarious living situation, limiting access to education and services such as clean water, electricity, and adequate shelter. Community members commonly earn money by selling garbage and tending other people’s livestock.[18]
[16] Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq, 9 October 2018
[17] Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq, 9 October 2018
[18] EASO, Country of Origin Report Iraq – Targeting of Individuals - March 2019, The DFAT report says that Southern Iraq is more secure than other parts of the country although criminality and drug abuse exist in the region. The Report suggests that a wide range of ethnic and religious groups live in southern Iraq although the overwhelming majority is Shi’a, and reports suggest that tolerance of religious minorities is higher than in other areas.[19]
[19] Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq, 9 October 2018
115. A recent EASO report referred to a number of reports about threats to people who worked for the US military or foreign organisations before 2011 with less impact since then:
During the April 2017 EASO Practical Cooperation Meeting on Iraq Mark Lattimer, Director of the Ceasefire Centre for Civilian Rights, noted that he had no information of recent cases of US personnel being targeted and that working for the coalition was less sensitive than in the past. In April 2016 Landinfo noted the following on the situation of people who worked for foreign companies in Iraq (as translated by the UK Home Office):
‘One can not in general terms today say that the Shiite militias promotes threats or violent [sic] to people who work for, or are/have been involved, foreign companies in Iraq. This was a relevant issue in the period before the Americans pulled their troops out of Iraq in December 2011, and especially in the most violent period between 2005 and 2008. According to the UNHCR occurred albeit [sic] still some attacks against people who had worked for foreign forces or organizations in 2012.
Before the Americans pulled out of Iraq, were people who worked for the US-led coalition subjected to abuse by militias, including the Shiite, who wanted to liberate Iraq from occupation forces. This affected not only Iraqis who assisted the forces directly, but also others who worked in the civil, such as in the oil sector. Today however, the situation is different. The Shiite militias are now, in spite of internal feuds and power struggles, mainly focused on combating the threat from the Islamic State (IS).
What may trigger these militias to again threaten foreign players in Iraq, and possibly their local partners, (is) the return of foreign ground forces.’[20]
[20] EASO, Country of Origin Report Iraq – Targeting of Individuals - March 2019, The Overseas Security Advisory Council Report has identified Basra as being a region of critical threat directed at US interests due to crime and terrorism directed at US interests. It referred to the growing interest of militias, which oppose a US presence. Further it identifies anti-America/anti-Western sentiment as existing throughout Iraq, particularly in Shi’a majority areas.[21]
[21] OSAC, Iraq 2018 Crime and Safety Report Basrah, 2018, Considering this information collectively, the Tribunal notes that the threat to the applicant as a person who worked with coalition forces is far less than it once was, however significant anti-American sentiment exists, particularly in Basra. The Tribunal is satisfied, on the basis of the IPAO decision, his evidence to the Tribunal and country information on anti-Western sentiment, that he may still be known to extremists in his area as claimed and there are those who blame him for going to prison, and that the chance of serious harm may still exist. There is also the risk of moderate discrimination for reasons of his Sunni religion and Bidoon origins which could exacerbate the chance of harm. There is no doubt that sectarian tensions persist in Iraq, and that Sunnis continue to face a degree of harassment and discrimination.[22] In this regard, the Tribunal has taken into account the fact that, notwithstanding his visits to Iraq, he attempted to relocate his family to [Country 1] as he was concerned for their safety. The security situation in general is identified as precarious and the crime rate high.
[22] DFAT Country Report on Iraq 9 October 2018, para 3.35-3.37; As ISIS Is Driven From Iraq, Sunnis Remain Alienated, 26 October 2017, The New York Times, Considering all these factors cumulatively, the Tribunal has given this weight in favour of not cancelling the visa.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members
119. The applicant has asked the Tribunal to show kindness and mercy. He said that he is not young, and thinks of his children all the time, wondering if they have food and are safe.
120. The Tribunal accepts, after hearing his evidence before the Tribunal that he has been motivated to take risks because of his concern for his wife and [number] children, and that cancelling his visa would cause significant hardship to him and his family. The Tribunal has taken into account the hardship he would suffer if his visa were cancelled.
Conclusion on whether the visa should be cancelled
121. The Tribunal has carefully considered all of the discretionary factors. The Tribunal gave significant weight in favour of cancelling the visa to the lack of contribution to the community in Australia, and the fact that the applicant has continued to suggest that he is a stateless Bidoon, despite evidence to the contrary. However, in its assessment the Tribunal gives substantial weight in favour of not cancelling the visa to the fact that the decision to grant the visa was made predominantly in response to threats to him as a Sunni employee on a [foreign] base, rather than his statelessness. Further, the Tribunal has placed significant weight on the passage of eight years since the time of decision and the fact that the situation in Iraq is volatile despite some improvements since the time of application. The Tribunal has also given weight in favour of not cancelling to the fact that the applicant did provide the relevant information to the original decision-makers. Although the fact that his family are in Iraq is a factor in favour of supporting cancellation for an earlier family reunion, the Tribunal has also taken into account the fact that his wife and children have made a partner visa application and that long term the best interests of the children would be served by a family reunion in Australia if that were to occur. The factors were fairly even, however on balance, the Tribunal considers that the factors in favour of not cancelling the visa outweigh the factors in favour of cancelling the visa.
CONCLUDING PARAGRAPHS
122. 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. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
123. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Jane Marquard
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)    purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)    was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)    giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)    stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)    informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)    requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)    visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)    visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)    having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.