1731859 (Refugee)

[2018] AATA 4981

1731859 (Refugee) [2018] AATA 4981 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1731859

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Antoinette Younes

DATE:8 November 2018

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 08 November 2018 at 4:11pm

CATCHWORDS
REFUGEE – cancellation – Protection visa – Iraq – irregular maritime arrival – stateless Kuwaiti – Tribunal is not satisfied of the applicant’s true identity – whether the applicant held Iraqi citizenship when he arrived in Australia – best interest of the children – decision under review set aside

PRACTICE AND PROCEDURE – valid s438 certificate

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 438,

Migration Regulations 1994, Schedule 2

CASES

MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 December 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 866 (Protection) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1AA) on the basis that the delegate was not satisfied of the applicant’s identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3.     The applicant appeared before the Tribunal on 23 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4.     The applicant was represented in relation to the review by his registered migration agent.

5.     For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Section 438(1)(b) Certificate

7. In the course of the hearing the Tribunal advised the applicant of the existence of the s. 438(1)(b) Certificate which the Tribunal considered to be valid on the basis that the documents subject to the Certificate contain confidential information relating to third-party providers of information and officers of the Department and consequently the disclosure of that information may result in breach of privacy and safety concerns.

Does the ground for cancellation exist?

8. A visa may be cancelled under s.116(1AA) if the Minister is not satisfied of the visa holder’s identity.

Protection and identity claims

9.     In the course of the hearing, the Tribunal discussed with the applicant the information contained in the delegate’s decision record which the applicant provided in support of the application for review. Specifically, the Tribunal referred to the following:

(a)[In] June 2009, the applicant arrived on Christmas Island as an unauthorised maritime arrival claiming to be a stateless Kuwaiti Bidoon who lived in Iraq illegally.  On arrival, the applicant attended an entry interview with a Departmental officer and during this interview, the applicant stated “I have no citizenship so I have no legal papers in Kuwait, Iraq or Syria. All I had was a real birth certificate from Kuwait.”

(b)On 14 September 2009, the applicant lodged an application for a protection visa in the name of [Name 1] with a date of birth of [Date 1]. As part of this application, the applicant provided a Form 866C – Application for an applicant who wishes to submit their own claims to be a refugee. 

(c)Question 1 of Form 866C asks “What is your full name?”, the applicant stated “[Name 1]”. Question 4 of the Form 866C asks “What other names have you been known by?”, the applicant did not provide a response to the question. 

(d)In support of the protection visa application, the applicant provided a signed Statutory Declaration dated 9 July 2009 in which he declared, amongst other things, “… I also got false Iraqi documents, being a false military book and a false ID card… My wife and I had children together. We now have [details of children]. Our children do not have any identity documents or any access to education. My children and I are stateless… Couldn’t go back to Kuwait or Iraq because I have no citizenship in either place… My mother and father have no citizenship. I have no citizenship. My children have no citizenship. We are all stateless.” 

(e)On 16 September 2009, the applicant was granted a protection visa in the name of [Name 1].

(f)On 9 November 2009, the applicant completed and signed Form 681 Refugee and special humanitarian proposal in support of his wife, [Ms A] and [children] for Class XB subclass 202 Refugee and Humanitarian visas. With this application, the applicant provided a translated copy of his marriage certificate, dated [1996], containing the name of [Name 2] in reference to the applicant.

(g)On 12 December 2010, the applicant was interviewed in relation to the subclass 202 application and during this interview, he stated that he used an Iraqi identification card in the name of [Name 3] during his time in Iraq. He claimed this was the identity of a deceased person and that the applicant’s children had Iraqi identity documents issued when he held that identity. The Iraqi identification cards provided to the Department on 20 January 2011 to support the children’s identity, all listed their surnames as [Name 1 surname]. The Iraqi identification card contains name details [Name 4] and refers to the place of birth as Thi Qar, Iraq. The applicant’s spouse and children were all granted subclass 202 visas on 14 June 2011 based on this information.

(h)[In] January 2014, the applicant changed his name by deed poll to [applicant name].

(i)On 10 June 2014, the applicant lodged an application for Australian citizenship in the name of [applicant name] including his [children]. As part of the application, he completed and signed Form 1290 - Application for Australian Citizenship Other Situations. As part of this process, the applicant was referred for an identity assessment as a consequence of the number of names he had provided to the Department since his initial arrival [in] June 2009.

Identity assessment

1. On 29 May 2015, the applicant was interviewed by the Identity Assessment Officer to confirm his true identity.

2. The decision record indicates that the applicant provided the following details during the interview:

   ·He was born in Kuwait under the name [Name 5] in [year]. He did have a birth certificate to confirm his identity but that certificate was later confiscated by the Iraqi authorities.  He lived in Kuwait as a Bidoon before making the trip across the Kuwait/Iraq border in 1996.

   ·On arrival in Iraq, he paid money to obtain Iraqi citizenship in the name of [Name 4]. He has lived under that name from about 1996 onwards and he was able to access all the benefits of Iraqi citizenship. This was also the name listed in his identity documents at the time of his identity assessment on 29 May 2015. The name [in Name 4] was the name his father was known by in Iraq.

   ·His parents were born in Iraq and they were Iraqi nationals but he did not know this at the time of his protection visa application. After his father passed away, his mother returned to Iraq to reside with other members of the family and this is when he became aware he was an Iraqi citizen through descent. He was able to travel to Australia using a non-genuine Iraqi passport in the name of [Name 6].

   ·The identity assessment was completed on 15 July 2015 and concluded that the applicant’s identity was not supported. It was concluded that the applicant had not provided genuine or reliable identification documents to support his claims he was known as [Name 1] at the time of the protection visa application.

   ·The identity assessment determined that the applicant had been known by a number of names such as [Name 1] (date of birth [Date 1] – stateless Kuwaiti Bidoon), [Name 4] (date of birth [Date 2] – Iraqi national), [applicant name] (date of birth [Date 1] – stateless Kuwaiti Bidoon), [Name 6] (date of birth [Date 3] – Iraqi citizen), [Name 5] (unknown date of birth – stateless Kuwaiti Bidoon), [Name 2] (unknown date of birth – Iraqi national), [Name 3] (unknown date of birth – Iraqi national).

   ·The identity officer expressed a number of concerns including whether the applicant held Iraqi citizenship when he arrived in Australia and claimed protection on the basis of being in a stateless Kuwaiti Bidoon, whether the applicant’s children were stateless, and the fact that the applicant made statements that he and his family had always been Iraqi nationals.

   ·The identity officer concluded that the applicant and his children had always access to legitimate Iraqi citizenship. The applicant married an Iraqi citizen in 1996 and might have been eligible to obtain Iraqi citizenship through the marriage. The applicant presented at the entry interview and protection visa application as being an undocumented stateless person but later provided Iraqi identification documents for himself and his children at the time of the application to migrate to Australia.

   The applicant’s responses

   12.      In a Statutory Declaration of 12 August 2017, the applicant stated that:

   ·       He was born in Kuwait as a stateless person on [Date 1]. In Kuwait, he was only given a Kuwaiti birth certificate and nothing else. He lived as a stateless person until his departure from Kuwait to Iraq. In Kuwait his name was [Name 1].

   ·       In Iraq he was unable to acquire Iraqi citizenship because he entered Iraq illegally. He had no tribal connections in Iraq and he was unable to apply for Iraqi citizenship because he did not have Iraqi origins. Consequently, he paid money to obtain a false military book and a false ID card because that was the only way. In Iraq, there were many military checkpoints so he used the false ID in order to be able to move between different areas.

   ·     In Iraq he used the name [variation of Name 4] which was the name of a deceased or missing person. The name was chosen by one of his relatives because it was close to his original name. The name existed in the Iraqi Nationality Directorate but the person had gone missing or had passed away without knowledge of the authorities. He knew this information from the person who obtained the documents. The identity documents he used for himself and his children are original documents but they were for another person. The Arabic name has variations when it is [written].

   ·       In relation to his marriage certificate containing the name [Name 2], he used this name in particular because it was the only religious marriage certificate and not a civil marriage certificate. For religious reasons, he did not use a false name in his marriage certificate. [Name 2 surname] is his grandfather’s name in Kuwait. He used his original name because his religion provides that he uses only original name and true identity.

   ·       In relation to the name [Name 3], he believes that the interviewer mistook [Name 3] with [Name 4]. The interviewer had misspelt [Name 4]. He has no idea where [Name 3] came from and he has never used that name. During the interview with the Department, he stated that after he had used the name [Name 4], he paid money to one of his relatives who paid someone in the nationality and citizenship department to get his children Iraqi civil identity documents. His children used the names [variation of Name 4] in their respective civil identity documents.          

   ·       In relation to the reference in the Departmental letter of 11 July 2017 to the children’s Iraqi identity documents as having the surname [Name 1 and Name 5 surname], the children’s identity documents have the surname [Name 2 surname] or [variation of the surname], depending on variations in spelling. The children used the surname [Name 1 and Name 5 surname] in the subclass 202 visa application because the Australian Embassy in Jordan told them to choose between [Name 1 surname] and [variation of Name 2 surname]. The embassy knew about those names and consequently he opted to use [Name 1 surname] because that was his original surname and he wanted his children to have their original surname.

   ·       The reference to the most recent interview with the Department in which it is claimed that he had stated that his parents were Iraqi Nationals and that he had discovered that after the application for a protection visa, he would like to clarify that he stated that when his father passed away in Kuwait, after his mother moved to Iraq to live with their relatives, she discovered that she and her father had Iraqi origins. His mother discovered that because some of her relatives were able to obtain Iraqi citizenship by descent. However his mother was unable to obtain Iraqi citizenship because she lived all her life in Kuwait. The Iraqi government granted Iraqi citizenship to stateless people who arrived after 1991 but those grants ceased in the recent years. His parents were born in the Iraqi/Kuwaiti desert and at that time, there was no Kuwait. His parents lived a very harsh nomadic lifestyle.

   ·       He used the name [Name 6] on the fraudulent passport when he exited Iraq.

   ·       He confirms that he did not have an Iraqi ID in his original name when he arrived in Australia. He confirms that his children were issued with Iraqi civil IDs in the circumstances as outlined above. He was unaware of his parents Iraqi origins at the time of applying for the protection visa. Having an Iraqi origin does not mean that one is able to obtain an Iraqi nationality.

   13.      The applicant provided the following:

   ·Death certificate for [Mr B] who died [in] /2013. Photographs of a child and mourning family members.  Photographs of citizenship ceremony of [Child 1], photographs of high school graduation of [other children].  Family photgraphs.

   ·Letters from [an organisation] dated [date]/9/2019 and [date]/9/2018 relating to the [applicant] who has been attending counselling regarding his use of cannabis to “manage the experience of anxiety, depression and grief”.

   ·Letter from [a medical centre] dated [date]/9/2018 relating to [Mr C] who suffers from allergies. 

   ·Letters from [a medical centre] dated [date]/1/2016 and [date]/2/2016 relating to [Ms A].

   ·Records of [a] Pharmacy relating to prescriptions for [Ms A] and other family members.

   ·Health Summary sheet and [medical] report dated [date]/2/2015 in relation to [Ms A].  List and description of drugs prepared by representative.

   ·Psychological Reports of [name] dated [dates] in relation to [Name 1] who was suffering from a number of conditions including PTSD and Major Depressive Disorder.

   ·Letters dated [dates] of [a specialist] in relation to [Name 1] regarding various ailments. Letter [from various health professionals].

   ·Reports and invoices of [a] (Psychiatrist) dated [dates], in relation to [Ms A] who suffers from various conditions, including unresolved grief.  Psychological Report of [name] dated [date]/5/2013 in relation to [Ms A] who was suffering from a number of conditions including chronic PTSD and major depressive disorder. 

   ·Letters [from various health professionals], in relation to [Ms A]. Health Summary Sheets recording last script on [date]/9/2018.

   ·Letters of support to [the applicant] from [various organisations].

   ·Centrelink records for [Ms A]. [Bank] account records for [applicant name]. Births Certificates for [Mr C] and [Mr B].

   ·Australian Citizenship of [Child 1] acquired [in] 2017.

   ·Various awards and certificates of achievement in relation to the various members of the family.

   ·Change of name Certificate dated [date]/3/2014, from [Name 1] to [applicant name].

   ·Statutory Declaration and copy of Australian passport of [a named person], dated 15 October 2018 who met the applicant in 1996 and knew him to be a stateless Bidoon.

   ·Statutory Declaration and copy of Australian passport of [a named person], dated 14 October 2018 who met the applicant in 1984 and knew him to be a stateless Bidoon.

   ·Statutory Declaration and copy of Australian passport of [a named person], dated 18 October 2018 who started primary school with the applicant and knew him to be a stateless Bidoon.

   ·Statutory Declaration of the applicant dated 18 October 2018 confirming that he has never held Iraqi citizenship and that he is a stateless Bidoon with no identity documents. He reiterated that his parents were born in the desert and it is unclear in which country but he was born in Kuwait where he lived until 1996.

   ·Statutory Declaration of [Ms A], the applicant’s spouse, dated 16 October 2018, amongst other things, describing her background, including her birth in Iraq.  [Ms A] stated that when she married the applicant, she knew him to be a stateless Bidoon from Kuwait.

   ·Submissions by the representative and supporting documents,

   The hearing – summary of the evidence

   14.      The applicant gave evidence that he has never used the name [NAME 3].  The Tribunal repeatedly asked the applicant if on 12 December 2010, when he was interviewed in relation to the subclass 202 application, he had stated that he used an Iraqi identification card in the name of [Name 3] during his time in Iraq.  He stated that he does not know where that name came from and despite the Tribunal’s questions, he did not answer whether he had stated that he had used that name during that interview.  He reiterated that he had used the name [Name 4][1], the name of a deceased or missing person.

   [1] [Name 4] could also be spelt in other ways depending on factors such as Arabic accent, dialect, and region.

   15.      In relation to the Identity Assessment interview on 29 May 2015, the applicant stated that the interpreter was inadequate and made errors.  He stated that he was surprised when he heard from his former representative about what he had allegedly stated in the course of that interview.  He said he did not say that his parents were born in Iraq but that they were Bedouin[2] who lived a nomadic life in the Kuwaiti desert. 

   [2] The term Bedouin refers to the ethnic group of desert nomads as distinct from Bidoon which in Arabic is short for bidoon jansyiah – meaning without nationality.

   16.      The applicant denied that his parents had Iraqi citizenship when he applied for the protection visa.  He denied that he had said that his parents were born in Iraq.  He stated that the misunderstanding was due to interpreting problems.  The Tribunal asked and the applicant stated that on 29 May 2015, he was interviewed by four individuals, one of whom was an interpreter but his former representative was not present.  The Tribunal asked him if he complained about the interpreting and he stated that he did not.

   17.      The applicant gave evidence that after his father died, his mother went to Iraq and paid money to obtain Iraqi citizenship.  He said he married in 1996 and he paid money to obtain Iraqi citizenship. He gave evidence that although the documents he had obtained were authentic, they were obtained through payment of money because he was not technically entitled to have those documents. The Tribunal pointed out to the applicant that if he married in 1996 an Iraqi National, he might have been eligible to apply for Iraqi citizenship on the basis of his marriage. The applicant agreed that this would have been possible except as he had entered Iraqi legally in 1996 from Kuwait, he would not have been able to obtain Iraqi citizenship.

   18.      The Tribunal asked the applicant about the name [Name 6] and he stated that he had to use that name to obtain a passport. He stated that in Iraq he used the name [Name 4] for which he paid money.

   19.      The Tribunal asked the applicant why he changed his name in Australia by deed poll to [applicant name]. He stated that he no longer wanted the name [Name 1 surname] because it is similar to other names and is associated with the Shiites.

   20.      In relation to the name in the marriage certificate and when asked by the Tribunal why that name was used in the document, he stated that this was the shorter version of his real name.

   21.      The Tribunal referred to the application for a protection visa and asked the applicant about the name recorded in the document, namely [Name 1] and the applicant stated that he had told the person who was assisting him at the time of his full name. The Tribunal indicated that it appears that the person who had assisted him in the application for a protection visa as well as the statutory declaration is a solicitor and the Tribunal had difficulties accepting that a legal practitioner would not have ensured the applicant’s full name as claimed. The applicant stated that his full and real name is [Name 7], which includes paternal references.

   22.      The applicant’s spouse gave evidence in the course of her hearing on 25 October 2018 that when she met the applicant in 1996 in Iraq, she knew him by the name of [Name 7]. The Tribunal asked her why the marriage certificate was in a different name to which she essentially responded that she did not know the reasons; she stated that the marriage certificate was kept with her father who was her agent at the time. She stated that she was aware that in Iraq, he was known by the name of [Name 4].

   FINDINGS AND REASONS

   23.      The central issue before the Tribunal relates to the applicant’s identity. 

   24.      There is substantial and inconsistent material before the Tribunal referring to the applicant in different names. The evidence before the Tribunal indicates that the applicant has been known by a number of names such as [Name 1] (date of birth [Date 1] – stateless Kuwaiti Bidoon), [Name 4] (date of birth [Date 2] – Iraqi national), [applicant name] (date of birth [Date 1] – stateless Kuwaiti Bidoon), [Name 6] (date of birth [Date 3] – Iraqi citizen), [Name 5] (unknown date of birth – stateless Kuwaiti Bidoon), [Name 2] (unknown date of birth – Iraqi national), [Name 3] (unknown date of birth – Iraqi national).

   25.      The applicant has claimed that his true identity is [Name 7]. He has contended that because he is a stateless Bidoon, he is unable to provide official documents to substantiate this identity. 

   26.      At the entry interview on 18 June 2009 and RSA, he claimed to be [Name 1].  During that interview, he also claimed to have an [alias].   In his protection visa interview and RSA, he claimed to have used the name [Name 6] in a passport.  In support of the subclass 202 visas for his family, he provided an ID document in the name of [Name 4]. In Form 80 to support the RSA request, at question 4 which asks “(a) Write your name in your own language or script, for Russian citizens, include patronymic name”, where the applicant handwrote what has now been translated to [Name 1]. Also at question 4 of the Form 80 asking “(c) if you are of Arabic descent, write the full names of your paternal grandfather (i.e. your father’s father)” where the applicant handwrote what has now been translated to [Name 7].  During an interview with the Department on 29 May 2015, he referred to his name as being [Name 7]. During a telephone conversation on 23 March 2010 with a Departmental officer, it is noted that the applicant used the name [Name 3].  In his marriage certificate, the name [Name 2] is used.

   27.      The applicant has claimed that he had paid money to obtain an ID in the name of [Name 4], an Iraqi national.  In submissions to the Tribunal, it was contended that the delegate’s conclusion that the document is genuine is “manifestly wrong” in light of country information demonstrating the ease with which fraudulent Iraqi documents can be obtained.  It was submitted that the Department was put on notice in 2009 when the applicant advised that the document is fraudulent and would not establish his identity. 

   28.      The representative referred to the naming convention in Kuwait that “Kuwaiti names show a person’s lineage and have four parts: personal name, father’s name, grandfather’s name, tribal name”.[3]  The applicant’s name is [applicant name], his father’s name is [deleted], his grandfather’s name is [deleted] and his grandfather’s name is [deleted].  His tribal name is [deleted].  All those names were declared in the form 80.  The Tribunal has given regard to those submissions which are reasonable but the fact remains that at question 1 of Form 866C asking “What is your full name?”, the applicant stated “[Name 1]”. Question 4 of the Form 866C asks “What other names have you been known by?”, the applicant did not provide a response to the question. The Tribunal accepts that the Form 80 is part of protection assessment process but responses in the Form 866 and the Statutory Declaration of 9 July 2009 did not identify the applicant’s full claimed name.  Moreover, the applicant has admitted to paying money to obtaining Iraqi ID in the name of [Name 4] and [Name 6] in an Iraqi passport.

   [3] Defense Language Institute Foreign Language Centre (August 2012), Arabic (Kuwait) cultural orientation, co/kuwait.pdf

   29.      The Tribunal did not find the applicant to be credible.  He was essentially incoherent, vague and he required repeated questions to be able to respond to basic details.  The Tribunal is mindful and accepts that the applicant stated that he had not slept for two nights due to anxiety, and that he does suffer from various ailments which could have impacted his ability to give evidence coherently.  On balance, the Tribunal found that the more questions the Tribunal asked, the less coherent the applicant became.  He continued to claim that the confusion and the inconsistencies were due to substandard interpreting throughout multiple processes, including the Tribunal hearing.  When challenged by the Tribunal, he was however unable to point to any specific problems.

   30.      Moreover, the applicant had claimed that he and his children were undocumented stateless persons, however he later provided identification documents relating to himself and to his children at the time of the application for subclass 202 visas.

   31.      The applicant is married to an Iraqi national who was so in 1996. He and his wife claimed that he did not apply for Iraqi nationality on the basis of his marriage to his wife which would have been possible, because he entered Iraq illegally. The Department of Foreign affairs and Trade (DFAT) Report[4] indicates that constitutionally citizenship is the right of every Iraqi and is the basis of nationality and that “anyone born to an Iraqi mother or father is Iraqi”[5] which means that it members of his family were probably Iraqi nationals. This is also inconsistent with his own admissions as noted by the identity officer in the delegate’s decision record namely that the applicant had stated that both he and his family had always been Iraqi nationals.  The applicant has later denied saying on 29 May 2015 that his parents were born in Iraq and they were Iraqi nationals. The Tribunal is not persuaded by the explanations that the inconsistency was due to interpreting; it is difficult to accept how such a significant issue would have been misinterpreted by a qualified interpreter.

   [4] DFAT Country Information Report, Iraq, 9 October 2018.

   [5] Ibid, at 5026

   32.      The Tribunal is unable to resolve many of the inconsistencies in the documents and the applicant’s oral evidence. The applicant has provided statutory declarations from individuals who claim to have known him as a stateless Bidoon and the Tribunal has given that information some weight.

   33. The Tribunal observes that in the documents subject to the s.438(1)(a), there is information that the applicant had a Gulf Arabic accent which points to a Kuwaiti origin rather than an Iraqi background which supports some of his claims.

   34.      In consideration of the evidence as a whole and on the basis of the available information, the Tribunal is satisfied that it is plausible that the applicant was born a stateless Kuwaiti Bidoon in about [year]. The Tribunal further accepts as plausible that the applicant went to Iraq to build a life and family. On the evidence before it however and despite that the majority of the alias’ feature variations on this name, the Tribunal is not satisfied of the applicant’s true identity or that his real name is [Name 5]. There are also different identities in Iraq in relation to the applicant which he claims were obtained essentially with bribery. It is difficult to see and the Tribunal does not accept the applicant’s explanations in this regard, the reasons for not obtaining Iraqi citizenship in light of the fact that there were lawful avenues for him to do so, including his parents’ and wife’s Iraqi citizenship. The Tribunal is not persuaded by his explanations that he was unaware of his parents’ Iraqi citizenship until after he was granted the protection visa and his mother moved back to Iraq.

   35.      On the evidence before it, the Tribunal is satisfied that although it is plausible that the applicant was born a stateless Kuwaiti Bidoon, he has acquired Iraqi citizenship and that at the time of lodging the application for a protection visa, he was an Iraqi national.

   36. However given the many different names before the Tribunal, the credibility concerns, and on balance of the evidence before the Tribunal in totality, the Tribunal is not satisfied of the applicant’s true identity and consequently the Tribunal finds that the ground for cancellation in s.116(1AA) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

   37.      There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

   ·     the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

   38.      The applicant arrived in Australia [in] June 2009 as an unauthorised maritime arrival claiming to be a stateless Kuwaiti Bidoon who for persecution reasons could not return to either Kuwait or Iraq. He was granted a protection visa on 16 September 2009, amongst other things, on the basis of those claims. The applicant has maintained that he is unable to return to either of those countries because he would face serious or significant harm. 

   39.      The Tribunal has accepted as plausible that the applicant was born a stateless Kuwaiti Bidoon in about [year] and that he went to Iraq to build a life and have a family.  For the stated reasons, although the Tribunal is not satisfied of the applicant’s true identity, the Tribunal is satisfied that the applicant is an Iraqi national. The Tribunal accepts as plausible that the applicant is of the Sunni faith.

   40. On 14 June 2011, the applicant’s spouse and children were granted subclass 202 visas. Their visas have been cancelled pursuant to s.140(2). The applicant’s wife and [children] all currently live in Australia.

   41.      In relation to the treatment of Bidoon in Iraq, DFAT’s recent Country Information Report[6] indicates that stateless Bidoon are subject to moderate levels of official discrimination as the government will not renew ID cards issued before 2003 so they are denied access to formal employment. The Tribunal recognises that the report is referring to stateless Bidoon and the Tribunal has not accepted that the applicant is currently stateless, however, the Tribunal is satisfied that it is a characteristic that the Tribunal has to take into consideration in assessing the applicant’s claims.

   [6] DFAT Country Information Report, Iraq, 9 October 2018.

   42.      The same DFAT’s report refers to the treatment of Sunnis; the Report states that:

   3.35 After the removal of Saddam Hussein and the (Sunni dominated) Ba’ath Party from government, many Sunnis felt marginalised. This was exacerbated by the perception among the majority Shi’a population that the Sunni community was associated with ISIL, and by the government’s inability to assist Sunnis attempting to flee ISIL. While the government has worked hard to protect civilians in the fight against ISIL, it has at times failed to respond firmly to acts of retribution against Sunnis by the Iraqi security forces (ISF) or the PMF.  These factors have intensified tensions between Sunni and the Shi’a communities in Iraq.

   …

   3.37 DFAT assesses that, outside areas recently controlled by ISIL, Sunnis face a low risk of societal violence on the basis of their religion. DFAT assesses that Sunnis face a moderate risk of official and societal discrimination in areas where they are a minority. The risk of discrimination varies according to an individual’s local influence and connections.

   43.      The Tribunal is satisfied that as a Sunni Bidoon, it is plausible that the applicant could face harm. Although those characteristics on their own may not mean that there is a real chance or real risk of the applicant facing serious or significant harm, the Tribunal is nevertheless satisfied that they are characteristics which weigh in favour of the applicant in assessing his need to remain in Australia.

   ·     the extent of compliance with visa conditions

   44.      The protection visa granted to the applicant did not have any attached conditions. Accordingly the Tribunal does not give weight to this consideration

   ·     degree of hardship that may be caused (financial, psychological, emotional or other hardship)

   45. The Tribunal acknowledges that the cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. However, those are due to intended consequences of the legislation and in his case, any hardship would not mean that the visa should not be cancelled. Moreover, the applicant would be subject to s.48 and consequently he would have limited options to apply for further visas in Australia.

   46.      The applicant has been in Australia since 2009. The applicant’s wife and children travelled to Australia as the holders of subclass 202 visas [in] July 2011. The ages of the children range from [age] years old to [age] years old. The applicant’s eldest child, [Child 1] was granted on 13 September 2017 Australian citizenship by conferral. The youngest child who was born in Australia is also an Australian citizen, due to the fact that the parents held permanent visas at the time of his birth.

   47.      There is evidence which the Tribunal accepts that the applicant’s children are doing well at school and have significant academic aspirations. The Tribunal accepts the evidence that the children are no longer fluent in Arabic so if returned to Iraq, they would face educational challenges. The Tribunal does not necessarily see those challenges as being insurmountable, they are nevertheless important considerations for the Tribunal. The Tribunal is satisfied that the children have developed friendships and personal ties to Australia.

   48.      One of the applicant’s children who was born on [date] died [in] 2013.

   49.      There is substantial clinical evidence before the Tribunal that the family particularly the parents suffered and continue to suffer significant grief and depression as a result of the child’s death. The Tribunal has observed that both parents became distressed when talking about the deceased child. The child is buried in [a cemetery] and the Tribunal accepts the evidence that the family visits the grave regularly.

   50.      In her Statutory Declaration of 16 October 2018, the applicant’s spouse, [Ms A] describes her feelings about the incident; she states “After his death, I have suffered insurmountable amount of grief. I became extremely depressed. Until this day, I have problems with sleeping. I live in fear of everything… I cannot imagine the thought of going back to Iraq without having the ability to visit his grave at the cemetery. You cannot imagine the grief when I miss him and need to go visit his grave to seek relief. Everyone asks me why I go to the cemetery where there is only pain and heartbreak but when I go there I can remember him laughing and playing. I can feel that he is there with me. He was taken from me too soon and I feel as if I did not have enough time with him…”.  Those sentiments are observed and noted in a number of medical and psychological reports before the Tribunal.

   51.      In his Statutory Declaration of 18 October 2018, the applicant refers to the death of the child and how he had collapsed next to the grave at the funeral. The applicant stated “My heart is still broken over the loss of my son. I know that the separation will send me back on a downward spiral”. Those sentiments are also noted in medical and psychological reports before the Tribunal.

   52.      The Tribunal has no reason to doubt that the family particularly the applicant and his wife feel very strongly about leaving Australia in those circumstances.

   53.      It is important to emphasise that the cancellation scheme is not intended to be punitive but rather a process by which the integrity of the migration program is maintained. The Tribunal is of the view that it would be harsh in the extreme to suggest that it would be acceptable for the family in these circumstances to leave Australia and not to accept this aspect as being a major consideration. The death of the child was an extreme event for the family and clearly beyond their control.

   54.      The Tribunal has accordingly given this aspect significant weight in favour of the applicant.

   ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

   55.      As noted, the applicant arrived undocumented in Australia on Christmas Island claiming to be a stateless Kuwaiti Bidoon who was seeking Australia’s protection. 

   56.      As explained, the Tribunal has not been satisfied that the applicant was stateless at the time he applied for protection.

   57. The applicant’s visa was cancelled on the basis of s.116(1AA). The evidence before the Tribunal indicates that the applicant has been known by a number of names such as [Name 1] (date of birth [Date 1] – stateless Kuwaiti Bidoon), [Name 4] (date of birth [Date 2] – Iraqi national), [applicant name] (date of birth [Date 1] – stateless Kuwaiti Bidoon), [Name 6] (date of birth [Date 3] – Iraqi citizen), [Name 5] (unknown date of birth – stateless Kuwaiti Bidoon), [Name 2] (unknown date of birth – Iraqi national), [Name 3] (unknown date of birth – Iraqi national).

   58. For the stated reasons, the Tribunal is not satisfied of the applicant’s identity and consequently the Tribunal found that the ground for cancellation in s.116(1AA) exists.

   59.      The Tribunal acknowledges that the integrity of the migration program relies, amongst other things, on visa applicants providing accurate information when applying for Australian visas. The applicant was granted a protection visa based on a claimed identity.

   60.      The Tribunal is satisfied that this consideration weighs heavily against the applicant.

   ·     past and present behaviour of the visa holder towards the department

   61.      Although the applicant has engaged with the Department and provided information, he has continued to assert a particular identity, unsupported objectively.

   62.      The Tribunal is satisfied that this consideration weighs against the applicant.

   ·     whether there would be consequential cancellations under s.140

   63. The subclass 202 visas granted to the applicant’s spouse and children have been cancelled pursuant to s.140(2). A decision to cancel under s.140(2) is not mandatory and discretionary factors would need to be addressed. The Tribunal is dealing with the cancellations of those visas.

   64. Although it is arguable that as cancellation pursuant to s.140 is an intended consequence of the legislation, in this instance and given the circumstances of the family, the Tribunal is satisfied that consequential cancellations is a significant matter and the Tribunal has given this aspect weight in favour of the applicant.

   ·     whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

   65. As previously noted, the cancellation of the visa means that the applicant could become an unlawful non-citizen liable for detention and removal from Australia. However, those are due to intended consequences of the legislation and in his case, any hardship would not mean that the visa should not be cancelled. Moreover, the applicant would be subject to s.48 and consequently he would have limited options to apply for further visas in Australia.

   66.       The applicant’s children are aged [various ages]. The Tribunal acknowledges that although two of the applicant’s children are adults, the others are not. The potential that the whole family could be detained including a number of the children is a consideration for the Tribunal warranting weight in favour of the applicant.

   ·     whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

   67.       As a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning the applicant’s children, two of whom are adults.  By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interest of the child.

   68.       The CROC applies to children under 18 years of age.  The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.

   69.       Article 3 of the CROC states:

   In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

   States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

   States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

   70.       The Tribunal appreciates that Iraqi recognises dual citizenship and that to a degree, it might be beneficial for the children to experience the Iraqi culture.  However, given their ages and the length of time the children have been in Australia, the Tribunal is satisfied that it is in their best interest to remain in Australia.

   71.       The Tribunal has therefore given this aspect significant weight in favour of the applicant.

   72.       For the stated reasons, the Tribunal has concluded that the applicant is of the Sunni faith.  DFAT’s recent report[7] refers to the treatment of Sunnis; the Report states that:

   3.35 After the removal of Saddam Hussein and the (Sunni dominated) Ba’ath Party from government, many Sunnis felt marginalised. This was exacerbated by the perception among the majority Shi’a population that the Sunni community was associated with ISIL, and by the government’s inability to assist Sunnis attempting to flee ISIL. While the government has worked hard to protect civilians in the fight against ISIL, it has at times failed to respond firmly to acts of retribution against Sunnis by the Iraqi security forces (ISF) or the PMF.  These factors have intensified tensions between Sunni and the Shi’a communities in Iraq.

   …

   3.37 DFAT assesses that, outside areas recently controlled by ISIL, Sunnis face a low risk of societal violence on the basis of their religion. DFAT assesses that Sunnis face a moderate risk of official and societal discrimination in areas where they are a minority. The risk of discrimination varies according to an individual’s local influence and connections.

   [7] DFAT Country Information Report, Iraq, 9 October 2018.

   73.      The Tribunal acknowledges that there is a level of insecurity in Iraq but it is the Tribunal’s task to consider whether there is a real chance or a real risk of serious or significant harm facing the applicant on his return; a generalised level of insecurity does not normally enliven protection.

   74.      The Tribunal has carefully considered the applicant’s circumstances and on the basis of the available information and in consideration of the evidence as a whole, the Tribunal is not satisfied that there is a real chance or a real risk of the applicant facing serious or significant harm, as contemplated by the Act if he were to return to Iraq. The Tribunal is however satisfied that as a Sunni Bidoon, it is plausible that the applicant could face harm. Although those characteristics on their own may not mean that there is a real chance or real risk of the applicant facing serious or significant harm, the Tribunal is nevertheless satisfied that they are characteristics which weigh in favour of the applicant.

   ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

1. The protection visa is a permanent visa and the applicant’s family including his [children] are all in Australia.

2. The Tribunal has given weight to this consideration in favour of the applicant.

   ·     any other relevant matters

3. 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.

4. The applicant has maintained that he has provided correct information. The Tribunal is of the view that this demonstrates a level of disrespect for due process. The Tribunal is of the view that this weighs against the applicant. However, there is no information before the Tribunal to suggest that there have been any other instances of non-compliance.

5. The Tribunal appreciates that a number of the considerations weighing in favour of the applicant when considered in isolation may not warrant the favourable exercise of discretion. However when considered cumulatively and on balance of the evidence before the Tribunal, the Tribunal is satisfied that the correct and preferable decision is not to cancel the applicant’s visa.

6. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

   DECISION

   81.      The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

   Antoinette Younes
   Senior Member