1804279 (Refugee)

[2018] AATA 5006

1804279 (Refugee) [2018] AATA 5006 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804279

COUNTRY OF REFERENCE:                  Stateless

MEMBER:Antoinette Younes

DATE:17 December 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 17 December 2018 at 5:06pm

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – Kuwaiti Bidoon – particular social group – unauthorised maritime arrival – fear of harm by security and intelligence agencies – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 107, 109, 424A

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 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant has not complied with 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.

3. The applicant appeared before the Tribunal on 31 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. The last submissions were received on 20 November 2018.

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.

   Section 438(1)(b) Certificates

6. In the course of the hearing, the Tribunal advised the applicant of the existence of the s. 438(1)(b) Certificate placed on Departmental files [which] the Tribunal considered to be valid on the basis that the documents subject to the Certificates contain information relating to Departmental working documents some of which are identified as “IMMIGRATION-IN-CONFIDENCE – NOT FOR RELEASE…”, the disclosure of that information could reveal confidential Departmental investigative methods.  The Tribunal put the gist of that information to the applicant.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

9. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

11. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act, which requires amongst other things, the non-citizen to fill in or complete his or her application form in such a way that no incorrect answers are given or provided.

12. In the course of the hearing, the Tribunal discussed with the applicant the information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal in support of the application for review.

13. Relevantly, the decision record indicates that:

    i)   The applicant entered Australia [in] July 2010 as an Unauthorised Maritime Arrival (UMA) and on 12 August 2010, he participated in an entry interview. At question 1 of Part C of the entry interview where the interviewer asked the applicant “Why did you leave your country of nationality (country of residence)?”, the applicant said “I am stateless, I am denied the right to education, denied the right to work, denied the right to health insurance, housing. I don’t have the right to possess anything. My children are denied a birth certificate. I was denied from obtaining a driver’s licence and also a passport, marriage certificate.”

    ii)     At question 6a of Part C of the entry interview, where the interviewer asked the applicant “Did the police and security or intelligence organisations impact on your day-to-day life in your home country?”, the applicant responded “All Bidoon are bothered by the government. For example I was with my wife – 2007/2008.” The interviewer then asked where this had taken place to which the applicant responded at Al Jahra. The interviewer continued to ask questions and the applicant said “At market in taxi, stopped at checkpoint for ID check. Stateless… This is nothing… asked about the woman with me… my wife… They abused me verbally ‘who is she?’… how did you get her?’…’when did you get her?”.

    iii)    On 25 August 2010, the applicant attended a Refugee Status Assessment (RSA) interview. As part of this process, the applicant provided a statement of claims in the form of a Statutory Declaration dated 21 August 2010. This is the submission the applicant had referred to at questions 42-46 of Part C of Form 866 – Application for Protection (Class XA) visa application. The information provided during the RSA process was similar in content to that provided in the statement of claims.

    iv)   Based on the information the applicant had provided, the applicant was found to be a refugee as set out in Article 1A of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention) essentially on the basis of him being a stateless Kuwaiti Bidoon who has no nationality and does not have any right to enter and reside in the country of former habitual residence or any other country. Consequently, the applicant was invited to submit a Form 866 – Application for Protection (Class XA) visa application (Form 866).

    v)    On 18 April 2011, the applicant submitted a signed Form 866, dated 15 April 2011. Question 19 of Part C of Form 866 asks “Your citizenship at birth?”  the applicant answered stateless. Question 21 of Part C asks “Do you hold any other citizenship or are you a national of any other country?” the applicant answered “No”. Question 23 of Part C asks “If you are stateless, how, when and why did you lose your citizenship?”, the applicant replied “I never had it. I am a Bidoon - my father and grandfather also do not have Kuwaiti citizenship”.

    vi)   Question 42 of Part C asks “Why did you leave that country? the applicant replied “Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made on 21 August 2010 and my interview on 25 August 2010”. 

    vii)  In the statement of claims document, the applicant indicated “For my whole life I have been denied the most basic of human rights because I am a Bidoon… My life in Kuwait has been very difficult. As a Bidoon I have no rights: no right to work; no right to buy property; no right to receive education; no right to go to hospital without paying high fees; no right to register the birth of my children; no right to enter into any contracts; no right to drive; no right to obtain travel documents and no right to open a bank account. Even if you have a green card in Kuwait you do not have any rights. I do not have the same rights and entitlements as Kuwaiti citizens to attend school, get work or access healthcare. My children are also without these rights. As a Bidoon, I am discriminated against in every part of my life. Many times in my life in Kuwait I have been harassed by the police, just for being a Bidoon”. 

    viii) Question 43 of Part C asks “What do you fear may happen to you if you go back to that country?”, the applicant replied “Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made on 21 August 2010 and my interview on 25 August 2010”. In the statement of claims, the applicant stated “I fear they will kill me if I return to Kuwait because I am a Bidoon and because I have been involved in distributing written materials to other Bidoons about a lack of rights in Kuwait and the need for reform. Furthermore, if I were to return to Kuwait I would face discrimination to such an extent I would be denied the basic right to subsist”.

    ix)   Question 44 of Part C asks “Who do you think may harm/mistreat you if go back?, the applicant replied “Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made on 21 August 2010 and my interview on 25 August 2010”.  In the statement of claims, the applicant stated “I fled Kuwait [in] July 2010 I went owing to my fears of persecution from the Kuwaiti security and intelligence agencies and the Kuwaiti authorities”.

    x)    Question 45 of Part C asks “Why do you think this will happen to you if you go back? the applicant replied “Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made on 21 August 2010 and my interview on 25 August 2010”.  In the statement of claims, the applicant stated “I do not believe I have the right to return to Kuwait. I fear I would be imprisoned for many years and seriously harmed by the security and intelligence agencies because I am a Bidoon and because I have been involved in distributing written materials to other Bidoons about our lack of rights in Kuwait and the need to reform.”

    xi)   Question 46 of Part C asks “Do you think the authorities of that country can and will protect you if you go back? If not, why not?” the applicant replied “Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made on 21 August 2010 and my interview on 25 August 2010”.  In the statement of claims, the applicant stated “I do not believe there is anything safe for me in Kuwait as the Kuwaiti security authorities are after me and I am a Bidoon. It is the Kuwaiti authorities whom I believe would harm me.”

14. Based on the available information including the applicant’s responses, the delegate was satisfied that the applicant was a stateless Kuwaiti Bidoon and he was granted a protection visa on 19 April 2011 on those and other grounds.

    Events subsequent to the grant of the protection visa

15. The delegate’s decision record further indicates that:

    i)   On 21 April 2015, the applicant applied for Australian citizenship. As part of this application, he was required to attend an identity assessment interview with a Departmental identity officer on 13 October 2015. During the identity assessment interview, the identity officer asked the applicant about his claims of being a stateless Kuwaiti Bidoon. The areas of assessment drew from the applicant’s responses to his travel history, the Kuwaiti identity documents he provided with the application for a protection visa, the Kuwaiti residential history he provided, and his family history.

    ii)     The identity officer concluded in a report dated 15 December 2015 that there was no information held by the Department to support the applicant’s claim of being a stateless Kuwaiti Bidoon.

    iii)    The identity officer concluded that “In my view, there is no information before me leading me to conclude in any way that the client is a former resident of Kuwait; the client has no meaningful knowledge of Kuwait city, Al Jahra, or its environs, despite claiming to have lived there all his life, he has provided a variety of supporting documents that do not conform to type e.g. his claimed Kuwaiti ‘green card’ and driver’s licence. His responses at interview were so conflicted and contradictory as to be nonsensical. Finally, there is irrefutable proof of the client’s Iraqi citizenship by way of the Iraqi visa label in his expired Titre de Voyage ([number]) stating clearly that he is of Iraqi origin. As noted earlier, this visa exception is only available upon provision of a colour copy or original Iraqi birth certificate and either parent’s Iraqi National ID card or Iraqi citizenship certificate… I find that the client’s claimed identity IS NOT SUPPORTED. Instead, I find that the client is in fact an Iraqi citizen, and not stateless as claimed”.

    iv)   The Iraqi visa label referenced in the identity assessment report came from the applicant’s Australian issued Titre de [Voyage], which was presented to the Departmental identity interviewer on 13 October 2015. The Titre de Voyage document was valid between [2011] and [2013]. The purpose of the visa label was to facilitate the applicant’s travel to and from Iraq for a three months period during August 2011 and November 2011. The visa was granted [in] August 2011 and had a number [number].

    v)    In investigating the Iraqi visa label, it was discovered that Iraqi citizens travelling on a foreign passport may apply for an Iraqi visa, and they would not be charged. In order to be eligible for a no charge “Iraqi Origins” Iraqi visa, an applicant needs to provide proof of their Iraqi citizenship in the form of either the original copy or a colour copy, of their Iraqi birth certificate, as well as a copy of either of their parents’ Iraqi nationality ID card or their parents’ Iraqi nationality certificate.

    Applicant’s responses and submissions

16. In a Statutory Declarations of 29 September 2017 and 24 October 2018, in summary the applicant stated:

    i)   He was born [in date] in Al Jahra, Kuwait. His [siblings], parents and grandparents were also born in Kuwait. Although he was born in Kuwait, he does not have Kuwaiti citizenship. He provided to the Department a copy of his birth certificate. His ethnicity is Arab Bidoon and he and his family were citizens of Kuwait.

    ii)     He fled Kuwait to come to Australia in 2010 and he was about [age] years old at the time. The security forces in Kuwait wanted to kill him and he had to leave.

    iii)    The family lived in Al Jahra which is outside Kuwait city and they lived in a house that belonged to his father’s friend. They could not live in Kuwait city because they are Bidoons. He only went to school for about a year between 1989 and 1990. He stopped going to school in 1990 following the war between Iraq and Kuwait. The family went to the desert area which was located about 20 km from Al Jahra. They lived in tents. In 1991 when the war finished, the family returned to Al Jahra and his parents tried to enrol him at the school but they could not because he was a Bidoon. The family faced a lot of hardship and they were denied many rights, as well as facing discrimination. His father was [details deleted]. They stayed in Al Jahra for about 4 to 5 years and later returned to the desert area [where] they stayed until 2005/2006. He did not have much of a childhood and had to work with his father.

    iv)   When he was about [age] years old, his parents decided that he should marry. In 2000, he married [a named person] to whom he had never spoken previously or met. They had a religious ceremony and a Sheik from the Bidoon community conducted the wedding ceremony. They did not get a marriage certificate and they were not entitled to register their marriage because they are Bidoons. They lived in a tent which was close to his parents’ tent and he continued to work with his father. In about 2005/2006, they went back to Al Jahra and by then he had [children]. It was very hard for the family and they faced a lot of discrimination. When his wife went into labour with their [number] child in [year], they had to borrow his friend’s Kuwaiti wife’s identification document to enable the applicant’s wife to have the baby in the hospital. His children could not go to school and they had no rights because they were Bidoons.

    v)    In 2009, he began working for a person [selling] [items] and he got to know a customer called [Mr A] who was also a Bidoon.  [Mr A] asked the applicant to distribute pamphlets and he told him that they were for a [forum]. As the applicant could not read or write, he did not know the nature of the pamphlets. He distributed the pamphlets the following day and the pamphlets turned out to be about the rights of Bidoons. The authorities discovered the distribution of the pamphlets and they caught [Mr A] who and others were imprisoned. The authorities were told that the applicant had been distributing pamphlets and they were looking for him. He panicked and he knew that if the Kuwaiti authorities discovered him, they would imprison and torture him. They went to his house and could not find him. He went into hiding and he was told that his father was beaten and insulted by the security forces. A man by the name of [Mr B] helped with his father’s release.

    vi)   The applicant could not return to the house because it was under surveillance. [Mr B] had a [property] [where] the applicant stayed for about 15 days. He got the applicant a fake passport and helped him leave Kuwait. He left his wife and children in Kuwait but the authorities continued to ask his wife about his whereabouts. He found out when he was in the detention centre [that] in January 2011, the applicant’s father-in-law took his wife and children to Iraq. He was concerned so he had to go and see his family. He arranged for documents and obtained an Iraqi visa for all of which he paid AU$[amount].

    vii)  All documents he had provided to the Department in 2010 are genuine and he is a stateless Bidoon. He was given an Iraqi visa in 2011 and he had to undertake a blood test for HIV. In 2010 he provided the Department with a green card from Kuwait which is a clear indication that he was living in Kuwait. During his citizenship interview in 2015, he remembers that the person interviewing him said that the applicant was a “liar” and that he was not illiterate as claimed. He has tried to learn as much as he can since he left the detention centre. The person asked him to write his name and he did write his name because he had learnt how to write his name.

    viii) He came along way to Australia and he has not been well. He is on the pension and three months ago had commenced working part-time for a [company]. He has [a number of] children in Iraq and none of them goes to school. None of them can read or write and this is an opportunity for him to assist his children. His dream is for his children to succeed in their lives and to be better educated. His eldest daughter is now [age] years old. He was not born in Iraq and has never lived in Iraq. The first time he went to Iraq was in 2011. He has nowhere to go and in Kuwait as he is a Bidoon and not recognised as a citizen. His family are in Iraq unlawfully and they are not recognised as Iraqi citizens. His parents and [siblings] live in the desert area and they do not live in Iraq. They are recognised as Bidoons.

    ix)   When he was interviewed by the Department in 2015, he did not expect all those questions. He was confused and scared. When he went into hiding, he did not have any identity documentation with him. He told the officer during the interview that the house where they stayed in Al Jahra belonged to his uncle. The house belonged to a friend of his uncle and his father and his uncle rented the house. In the course of the interview, he mentioned that his wife and children may have citizenship in Iraq but he was very confused at the time. He told the officer that his wife’s parents are citizens of Iraq and he also stated that his wife and children have Iraqi citizenship so they can go to school and avoid being attacked or kidnapped. As far as he is aware, his father-in-law made arrangements for his wife and children to obtain Iraqi citizenship. He was made aware of this when he found his wife and children in Iraq but his children were born in Kuwait and they are Bidoons. His father-in-law is an Iraqi citizen and his wife and children obtained the Iraqi citizenship through his own citizenship.

    x)    When the applicant left Kuwait in 2010, his wife and children did not have citizenship. When he applied for the protection visa in 2011, his wife and children did not have Iraqi citizenship. He agrees that he did not answer the officer properly in relation to the street and infra structure but he told the officer that he was not feeling very well. He is illiterate and has learnt a little when he came to Australia. During the identity interview, when asked about how he obtained the Iraqi visa in 2011, he acknowledges that he should have told the officer during the interview of how he obtained his identity documents from Iraq. However he thought that it would get him into more trouble at the time if he had disclosed that he had paid $[amount] to make arrangements to get an Iraqi identity in order to get the visa. He was scared.

    xi)   On receipt of the notice of intention to consider cancellation, he obtained evidence to support his claim that he was wanted in Kuwait.  He called his uncle who obtained it and sent it as a picture to the applicant’s phone.  His uncle did not tell him how he obtained the document.

    The applicant’s evidence

1. The applicant gave evidence that he was born as a stateless Bidoon in Al-Jahra, Kuwait [in date]. He stated that he had never lived in Iraq or that he was ever granted Iraqi nationality. He stated that his parents had always lived in Kuwait and that he has [siblings] who have always lived in Kuwait and never went to Iraq. He stated that he had about one to two years of education in Kuwait and confirmed that he cannot read or write Arabic, except for his name.

2. The applicant stated that he is married and he has [number of] children aged from about [age] to [age] years of age. He stated that his wife and [number of] children are currently in Iraq. He explained to the Tribunal that after he left Kuwait, his house was watched and his father-in-law smuggled the applicant’s family to Iraq in about 2011. He said he had heard that the Kuwaiti security forces were watching and investigating the applicant.

3. The Tribunal asked the applicant if his wife is an Iraqi National to which the applicant responded by saying that he got married in Kuwait but after he left, his father-in-law smuggled her and the applicant’s children to Iraq in 2011. The Tribunal asked the applicant again about his wife’s family origin and the applicant stated that they are originally from Iraq. He stated that at the time his father-in-law smuggled the family to Iraq, the father-in-law was in Kuwait. The Tribunal asked if his wife is an Iraqi national and the applicant stated that she was not at the time he married her.  He said her family lived as Bedouin Bidoons in a tent in the Kuwaiti desert. He stated that he never asked her if she was an Iraqi national and as she had lived in the desert, he thought she was Bidoon who had not acquired Iraqi nationality. He reiterated that he never knew that she could go to Iraq. He said his in-laws took his wife to Iraq as it would have been difficult for her as a woman to pass through borders/desert.  The Tribunal asked the applicant if his children were Iraqi nationals and the applicant stated “no way”. 

4. The Tribunal referred to the transcript of the citizenship identity interview held on 13 October 2015 where[1] the interviewing officer asked the applicant about the status of his family in Iraq and the applicant stated that they are “Iraqi citizens because her father has got the Iraqi citizenship. And she, under her father’s name, she is entitled to citizenship”. Despite the Tribunal’s reference to the interview held on 13 October 2015, the applicant stated that during the interview in 2011, his family was still in Kuwait. He stated that at that time he did not know that his family had gone to Iraq but he discovered this after he had spoken to his cousin.

   [1] At page 5

5. The applicant gave evidence that his father-in-law had produced documents which led to the applicant’s family obtaining Iraqi nationalities. The Tribunal asked him when they obtained Iraqi nationalities.  He stated that he was not sure but it was sometime after 2011. He said there was a risk to the family of kidnapping. He stated that when the family went to Iraq, they did not have Iraqi nationality and they were previously living in tents in the Kuwaiti desert in Al Safwan.

6. The Tribunal discussed its impression that there was inconsistency in the information provided in relation to his family’s status. He said that before he came to Australia in 2011, they lived in Kuwait without nationality but due to the risk of harm after 2011, his father-in-law obtained Iraqi nationality but in Kuwait, the family did not have Iraqi nationality. He stated that their Iraqi nationality was acquired after 2011.

7. In relation to the claim that he had circulated pamphlets, the applicant gave evidence that he did not know the nature or the content of the pamphlets as he is unable to read or write Arabic. He stated that he was paid [amount] dinar (Kuwaiti currency) by [Mr A]. The Tribunal asked him when this incident happened and he stated that he could not recall exactly but it could be 2009 or 2010.

8. The Tribunal asked the applicant if he had travelled to Iraq and he confirmed that he did and although he could not recall exactly, he stated that he did so approximately one year after his protection visa was granted. Information before the Tribunal indicates that he travelled to Iraq for three months between August and November 2011.  The Tribunal asked him how he obtained the Iraqi visa. He stated that he had tried on 3 to 4 occasions to get a visa but he was unsuccessful. He said he had not seen his children particularly his youngest who was born subsequent to his departure from Kuwait. The Tribunal advised the applicant that it would appear that the Iraqi visa which he possessed would have only been issued by the Iraqi government to its own citizens, contrary to his claims of being stateless.

9. The applicant gave evidence that he spoke to his father-in-law who contacted a person by the name of [Mr C] to whom the applicant paid AU$[amount] to obtain Iraqi documents. The Tribunal asked the applicant how he paid [Mr C] and he stated he transferred the money. The Tribunal asked him if he had a copy of the transfer and he stated that he was given a receipt and he would search for it if needed. The Tribunal asked him how he obtained the document(s) from [Mr C] for whom he paid and he stated [Mr C] sent all to him as a photograph to his mobile telephone. The Tribunal asked him if he has a copy of those documents to which the applicant responded that he lost his bag containing his telephone and keys. He stated that he reported the incident to the police around 2011 although he could not remember the exact date. The Tribunal asked the applicant how he obtained the copy from his mobile phone and he stated that he went to [a store] and printed it out. He stated that he took the document to the Iraqi Consulate in [Australian city 1] and he could not remember the exact location of the Consulate. He stated that he could not recall anything and that he was given the visa by the Iraqi officials in [Australian city 1]. He stated he gave them an ID and they placed a sticker on his “passport” referring to the Titre de Voyage – number [number].

10. The Tribunal indicated to the applicant that the type of visa with which he was issued is only issued to Iraqi nationals with which the applicant agreed and reiterated that that he was a Bidoon and lived an unfortunate life and he only went to Iraq to see his family.

11. The Tribunal discussed with the applicant the information contained in the transcript of the interview of 13 October 2015.  The Tribunal indicated that there does not appear to have been a mention of [Mr C] and that he referred to a tribal chief, who is the “head of the tribe and he is no one on the international level, I mean, the Consulate knows about him, they know the head of the tribe”. The Tribunal asked the applicant about the tribal chief and about his responses in the interview suggesting that the Iraqi Consulate had issued the visa label on the applicant’s verbal advice that he and his family are Iraqi origins, without supporting documents. The applicant stated that during the interview he was scared and reiterated that he is a Bidoon like his father and grandfather. He said that Kuwait was established in 1961 and he does not know where his other elders were born.

12. The Tribunal pressed the applicant about his claim in the interview of 13 October 2015 that the tribal chief had somehow assisted him.  He stated that he was scared during the interview. He stated that he meant to say that he comes from [a] tribe which is well known. He stated that he was scared to disclose during the interview that he had paid money to obtain the document.

13. The Tribunal advised the applicant that there is information that the applicant’s claimed “genuine” Kuwaiti driver’s licence is “of very poor quality construction and does not contain any key information, for example, an issue or expiry date, or the client’s birth certificate”.  The Tribunal further indicated that a document examination assessment noted that the driver’s licence “does not exhibit the security characteristics expected in secure documents”.  The applicant stated that the driver’s licence is not a genuine document and that he was helped to obtain the document. He stated that in 2015, he did not know whether the Green card was genuine or not. The Tribunal referred to the information contained in the Departmental file suggesting that the green card is counterfeit. He stated that he obtained the green card after he left Kuwait undocumented. He stated that he called his uncle who provided the green card. The applicant stated that the green card is genuine but not the driver’s licence. 

14. The applicant gave evidence that he attempted to sponsor his wife and he was just given a number. The Tribunal referred to information contained in the Departmental file that the application was refused on 16 August 2013 due to lack of claims or supporting information being provided at that time, despite being invited to submit further information. The applicant denied ever receiving from the Department any request for information. He also confirmed that his wife had not received any information.

15. At the end of the hearing, the applicant told the Tribunal that when he was interviewed by the Department in October 2015, his responses might not have been clear about his address. The applicant described in detail the area where he lived in Kuwait. He stated that during the interview he could not remember because he was scared.        

16. The Tribunal discussed with the applicant that the delegate’s decision record indicates that International Treaties Obligations Assessment (ITOA) assessment was concluded on 3 October 2017 and that the applicant was found to be a citizen of Iraq who is not owed Australia’s protection. The Tribunal indicated that the Tribunal would give some weight to the assessment but invited the applicant to make submissions that in case the Tribunal would find that he is an Iraqi National, why he would not want to return to Iraq. The applicant stated that he has never lived in Iraq and that he is Bidoon.

    Section 424A letter

17. On 31 October 2018, the Tribunal sent to the applicant a s.424A letter as follows:

    In order to comply with procedural fairness requirements in accordance with s 424A, and although the Tribunal raised those matters in the course of the hearing pursuant to s.424AA, the Tribunal advises you of the gist of the material subject to the s 438(1)(b) certificates, as follows:

    ·    There is information that the applicant’s claimed “genuine” Kuwaiti driver’s licence is “of very poor quality construction and does not contain any key information, for example, an issue or expiry date, or the client’s birth certificate”. 

    ·    A document examination assessment noted that the driver’s licence “does not exhibit the security characteristics expected in secure documents”. 

    ·    The green card he provided on arrival in Australia and prior to his protection visa application did not have an issue date or conform to known format standards or other genuine cards of the type.  

    ·    He sponsored his wife and children in 2012 and the application was refused on 16 August 2013 due to lack of claims or supporting information being provided, despite invitations to submit further information.

    The information is relevant because it suggests that the applicant has provided documents which are not authentic or containing accurate information raising doubts about his credibility and his claims. The claim that he did not provide supporting information when requested in relation to the visa applications for his family could suggest that the applicant had not been truthful with the Australian authorities about his Iraqi nationality. The information also suggests that the applicant has provided bogus documents and could potentially be in breach of Act.

18. The Tribunal received a response to the letter in submissions dated 20 November 2018. The representative noted that:

    ·The applicant had provided a copy of the driver’s licence to the representative and that the driver’s licence is the same provided to the Department. The attached English translation shows that the driver’s licence includes a date of issue, namely [in] May 2007 and date of expiry, [in] May 2015. The driver’s licence includes a year of birth for the applicant ([year]).

    ·The applicant’s driver’s licence is in his possession and it is assumed that the Department has a photocopy. The document examiner’s assessment that it is a very poor quality construction should be treated with caution given that the examiner relied on a photocopy. It is acknowledged that a document examination assessment noted that the licence does not exhibit the security characteristics expected in secure documents but the fact that a document from Kuwait does not exhibit security characteristics does not mean that the document is not genuine.

    ·In relation to the green card, the English translation indicates that the document is called a “review card” and was issued by the “executive committee for illegal immigrants”. The question of whether the document conforms to known format standards or other genuine cards of the type should be considered in light of the title of the document and the body in Kuwait that issued the document. It is acknowledged that the card does not contain an issue date, however the card contains an expiry date, the applicant’s birthdate and his photograph.

    ·In relation to the matter concerning the applicant’s sponsorship of his wife and children in 2012, the applicant confirms that he did not receive any invitation to submit further information.

19. Although, the Tribunal has concerns, overall, the Tribunal found those submissions reasonable and persuasive, particularly in relation to the driver’s licence.  The Tribunal has noted the concession in the submissions that the green card does not contain certain features.

    FINDINGS AND REASONS

20. The Tribunal found aspects of the applicant’s evidence to be problematic; there were inconsistencies, some minor.  The applicant’s evidence was unclear and required the Tribunal to ask and repeat questions on various occasions. The Tribunal has concerns about various aspects of the applicant’s the claims, including how he had obtained the Iraqi visa.  On balance though, the core elements of his claims remain consistent.

21. There are significant factors which the Tribunal needs to take into consideration in assessing the evidence. The Tribunal accepts the evidence that the applicant has had limited education which might have impacted on his ability to articulate with clarity. More significantly, is the fact that there is a report from [Ms D], Accredited Mental Health Social Worker, Consultant Clinical Mental Health Practitioner dated [in] October 2018. The Tribunal is satisfied that [Ms D] is qualified to provide the opinions that she had provided in the report.

22. [Ms D] indicated that the applicant is currently attending ongoing psychological counselling related to clinically significant levels of diagnosed major depression, anxiety and adjustment disorder symptoms within the post-traumatic stress disorder (PTSD) spectrum.

23. The Tribunal recognises that [Ms D] is not the fact-finder as that is the Tribunal’s task.  However, the Tribunal notes that the account of the background that the applicant provided to [Ms D] is overall consistent with his claims, particularly the claims of being a stateless Bidoon. Relevantly, [Ms D] reports that the applicant had indicated to her that following his release from detention in Australia, he has been trying to make changes and has learnt to write his name and has been using his phone to teach himself to download applications to better himself. [Ms D] summarised the applicant’s mental health scores, namely high levels of tiredness due to sleep impairment, high levels of nervousness, high levels of hopelessness, high levels of restlessness, high levels of feeling depressed, and high levels of worthlessness, indicative of “clinically significant levels of depression and anxiety symptoms”. The Tribunal has decided to give [Ms D’s] report significant weight in assessing the applicant’s evidence. The Tribunal is satisfied that the evidentiary problems such as the inconsistencies, lack of clarity and vagueness are related to his mental health status.

24. The fact that the applicant obtained a visa to Iraq of a kind only granted to Iraqi nationals is persuasive evidence that he is an Iraqi National, the question is however when did he acquire the Iraqi nationality. The Tribunal does not accept his evidence that he paid someone to facilitate obtaining the visa.  The applicant has provided explanations that his wife and children acquired their Iraqi nationality after 2011, through the assistance of the father in law. The Tribunal has some doubts but those doubts are not sufficient for the Tribunal to reach a finding to the required level of satisfaction that the applicant was an Iraqi national when he applied for the protection visa.

25. Although there is evidence before the Tribunal that some of the documents he has provided might not be reliable, he has provided a number of documents supporting his claims, such as his birth certificate, school enrolment, birth certificate of his father, licence of his father, identification document for his mother, death certificates for his grandparents.

26. The Tribunal is satisfied that on balance and fair appraisal of the evidence, it is plausible that the applicant acquired the Iraqi nationality after 2011, that he is a Kuwaiti Bidoon and that at the time he applied for the visa, he was stateless. Accordingly and for those reasons, the Tribunal finds that he did not provide incorrect information. Therefore, the applicant did not fail to comply with s.101 of the Act. 

27. Even if the Tribunal were wrong in relation to the applicant’s nationality, the Tribunal would set aside the decision under review on discretionary grounds, namely his current mental health, the time elapsed since the non-compliance, the fact that the protection visa is permanent visa, and whether the visa was granted, wholly or partly on the incorrect information or a bogus document.  The Tribunal is satisfied that the applicant is a Kuwaiti Bidoon and if one were to find that he was an Iraqi national when he applied for the visa, the Tribunal is not satisfied that in April 2011 he would not have been granted the visa as an Iraqi national of Kuwaiti Bidoon origin.

28. For the stated reasons, the Tribunal is not satisfied that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

29. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

30. 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

    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.