1810282 (Refugee)

[2019] AATA 5814

1810282 (Refugee) [2019] AATA 5814 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810282

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Alison Murphy

DATE:21 June 2019

PLACE OF DECISION:  Melbourne

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 21 June 2019 at 3:37pm

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – race – Bidoon born in Kuwait, living in Iraq – incorrect information provided in protection application – claimed by wife to be Iraqi citizen  – documentation – fear of harm by militants and extremist groups and long-term discrimination as a stateless Bidoon – voluntary travel to Iraq – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109

CASES

El Jejieh v MHA (No 2) [2019] FCCA 840
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 at [57].
MZAFZ v MIBP [2016] FCA 1081
SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27
Zhao v Minister for Multicultural Affairs [2000] FCA 1235

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 breached s.101 of the Act by providing incorrect answers about his country of citizenship and his fear of harm in his visa application. 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 14 June 2019 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.

   BACKGROUND

6. The applicant is a [age]-year-old male who resided in Kuwait, Syria and Iraq before travelling to Australia in 2010. He is married with [number] children. He arrived in Australia by boat [in] October 2010 and lodged an application for a protection visa shortly afterwards. In that application he identified himself as a stateless Bidoon born in Kuwait who had spent most of his life in Iraq.

7. The applicant provided a written statement with his protection visa application and was further interviewed about his claims on 11 November 2010 and 10 January 2011. In those interviews and statements he stated that he was the son of a former Baath party member. He states his father was shot and killed in Iraq in 2007, leading the applicant and his family to flee to Syria where he remained for three years before returning to Basra and then travelling to Australia.

8. At his initial entry processing on 11 November 2010, he was found to prima facie engage Australia’s protection obligations. On 9 January 2011, a Refugee Status Assessment Officer (RSA officer) interviewed the applicant, assessed his claims and found him to meet the definition of a refugee. The Minister exercised his power under s.46A(2) of the Act to allow the applicant to lodge a protection visa. On the basis of information provided in his protection visa application and interviews, the applicant was granted a Class XA Subclass 866 Protection visa on 21 November 2011. 

9. On 31 July 2017 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation (NOICC), advising him that the Department of Immigration and Border Protection was considering cancelling his protection visa on the ground that it considered he had provided incorrect information in his protection visa application about his citizenship and his fear of harm in Iraq. 

10. The applicant responded to the NOICC on 31 August 2017 and 6 September 2017. In those responses he agreed he had returned to Iraq during each of the periods identified by the delegate, but denied providing any incorrect information in his visa application.

11. On 9 April 2018, the delegate made a decision to cancel the applicant’s resident return visa.

    LEGISLATIVE FRAMEWORK

12. 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.

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

    THE REVIEW APPLICATION AND PROCEDURAL ISSUES

14. An application for review of the delegate’s decision was lodged with this Tribunal on 12 April 2018.

15. The Tribunal was provided with the Departmental file relating to the cancellation which included the NOICC, submissions and documents provided to the delegate in response to the NOICC and the decision of the delegate. Files relating to the applicant’s protection visa application were also provided to the Tribunal.

16. Section 438 applies to decisions under Part 5 of the Act and provides that where the Minister has certified in writing that disclosure of a document or information would be contrary to the public interest, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.  However the operation of s.438 is dependent upon the existence of a valid certificate by the Minister or his delegate.

17. In this case the cancellation file included documents subject to a non-disclosure certificate pursuant to s.438 of the Act, dated 19 April 2018. That certificate states the information was given to the Department of Immigration and Border Protection in confidence. That statement appears to have been included in error, because the relevant pages comprise an internal Departmental document titled ‘Referral to Operational Integrity for Visa Cancellation Consideration.’ The document is clearly internal to the Department and not a document provided by a third party. This is confirmed in the next sentence of the certificate which states the Department considers that the document should not be disclosed to the applicant or the applicant’s representative because it contains deliberative process (internal working documents).

18. In MZAFZ v MIBP the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were  ‘internal working documents’. The court held this had never been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.[1]

    [1] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37].

19. I consider the same analysis must be applied to the certificate in this case. The reason ‘deliberative process (internal working documents)’ discloses a reason that could form part of the basis for a claim, but not the basis of the claim itself. It does not identify the harm that could be done to an agency by their disclosure. The certificate does not specify a public interest reason with sufficient detail to identify the claimed harm to the nation or public service that would be led to by its release. Further the certificate is unsigned. The Australian courts have held that the absence of a signature or a date on the certificate will render it invalid.[2]

    [2] In El Jejieh v MHA (No.2) [2019] FCCA 840 (Judge Street, 18 April 2019) at [23]-[25].

20. I find the s.438 certificate to be invalid. As the substance of the information in the document has already been disclosed to the applicant in the s.107 notice and the delegate’s decision, I have not provided the source document to the applicant.

    CONSIDERATION AND ANALYSIS

    Is the s.107 notice sufficiently particularised?

21. In considering whether the s.107 notice in this case is sufficiently particularised, I have had regard to the comments of the Full Federal Court in the case of Zhao v Minister for Immigration and Multicultural Affairs[3]: 

    Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as maybe open.[4]  

    [3] [2000] FCA 1235.

    [4] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 at [25]‑[26].

22. Although that case dealt with s.119 of the Act rather than s.107 of the Act, the Full Federal Court has since indicated that the statements in the Zhao case ‘are of assistance in terms of the proper interpretation and application of s 107’.[5]  

    [5] Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 at [57].

23. Further the Federal Magistrates Court in SZEEM v Minister for Immigration stated:

    the requirement of ‘particulars’ must, in my opinion, also encompass particulars of the basis upon which the falsity is alleged, and these must be given with enough detail to allow the recipient a real opportunity to understand and attempt to answer the non-compliance allegation.[6]

    [6] SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27 at [38].

24. I note that the s.107 notice sets out in some detail the information given by the applicant in his protection visa application that is now said to be incorrect, as well as particulars of the basis on which that information is now said to be false. I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.

25. In the present matter, I am 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.

26. The applicant was represented during the visa cancellation process. He responded to the s.107 notice on 31 August 2017 and 6 September 2017. In those responses he agreed he had returned to Iraq during each of the periods identified by the delegate, but denied providing any incorrect information in his visa application and sought to explain his reasons for returning to Iraq in 2012 and 2013.

27. In submissions made to the Tribunal and his oral evidence at the Tribunal hearing on 14 June 2019, the applicant provided further information about his nationality and the circumstances of his returns to Iraq in each of 2012 and 2013.

    WAS THERE NON-COMPLIANCE AS DESCRIBED IN THE S.107 NOTICE?

28. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 in the following respects:

    a)    In relation to his nationality, on the basis that he claimed to be stateless but the delegate considered he is an Iraqi national;

    b)    In relation to his genuine fear of harm in Iraq from the Shia militias that killed his father and as a Sunni Muslim, on the basis the delegate considered that his voluntary returns to Iraq in 2012 and 2013 indicate he did not have a fear of harm in that country at the time he made his claims for protection.

29. A mere suspicion is not sufficient to establish the ground for cancellation. Rather, before the visa can be cancelled, a decision maker must reach a real state of satisfaction that a ground for cancellation exists. A visa cannot be cancelled because the decision-maker has identified a possible ground for cancellation which the visa holder has not been able to rebut[7].

    [7] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

30. The delegate considered the above matters and nonetheless found that there had been non-compliance in the way described in the s.107 notice.  For the following reasons I have reached a different conclusion on that point.

    Did the applicant give incorrect information about his nationality?

31. The applicant has consistently claimed to be a stateless Bidoon, born in Kuwait and formerly resident in Iraq. The delegate considers he gave incorrect information about his statelessness during the protection visa application process, having formed the view he is in fact an Iraqi citizen.

32. The s.107 notice sets out the reasons for this conclusion to be (in summary):

    ·The applicant is the holder of an Iraqi identity card;

    ·The applicant voluntarily returned to Iraq in 2012 and 2013;

    ·The applicant’s wife reportedly stated in an interview relating to the applicant’s partner visa that her husband was an Iraqi national, born in Thi Qar who is in possession of an Iraqi identification card, national card and an Iraqi passport;

    ·The applicant’s wife and children entered Australia as the holders of Iraqi passports.

    The applicant’s identity card

33. It is not in dispute that the applicant is the holder of an Iraqi identity card. The s.107 notice and the delegate’s decision imply that the applicant sought to conceal his possession of the card and suggest it only came to light when his wife provided it to the Department during the partner visa process. They each state that the applicant misrepresented his situation in an attempt to gain a positive outcome on his protection visa application. This is clearly incorrect as the Departmental file shows that the applicant openly disclosed the existence of his Iraqi identity card during every stage of the protection visa assessment process:

    ·The written record of his entry interview on 11 November 2010 records that the applicant advised the Department at this time that he had an Iraqi identity card and marriage certificate as well as a Kuwaiti birth certificate, health card and school certificates. These documents were provided to the Department and are contained on the applicant’s protection visa file. At the same time he disclosed that he had a fake Iraqi citizenship certificate and passport which were taken by the people smuggler and were no longer in his possession;

    ·The applicant again made reference to his Iraqi identity card in his protection visa application. In his statutory declaration setting out his claims for protection, he stated he left Iraq because he was unable to obtain citizenship and was only granted a national identity card.  All of this information was clearly before the RSA officer, who assessed that information and accepted the applicant’s evidence that he was a stateless Bidoon. She noted his statements about his personal history and statelessness were consistent at both the RSA and entry interviews and with country information about the situation for Bidoons in Kuwait and Iraq.

34. At hearing before me the applicant stated that his father had obtained his Iraqi identity document for him when he was a child. He denied it was evidence of Iraqi citizenship, stating that stateless Bidoons were required to hold an identity document in order to live in Iraq. He is not aware of the process that his father undertook to obtain the identity document or whether that identity document is genuine, but he had always understood it to be his permission to remain living in Iraq as a non-citizen.  

35. The RSA officer’s decision offers useful information about the situation for Bidoons in Iraq:

    Origins of the Bidoon

    The word ‘bidoon’ (Arabic for ‘without’) is from the Arabic phrase ‘bedoon jinsiyya’, literally meaning either ‘without nationality’ or ‘without citizenship’. The phrase, which originated in the late 1950s, was originally the official designation for anyone whose qualification for Kuwaiti citizenship was in doubt. The term should not be confused with Bedouin, from the Arabic word ‘badawi’, meaning nomad. Although many Bidoon are of Bedouin origin, most of them have long since settled in the urban centres of Kuwait, and many have never lived a nomadic life.

    . . .

    Status of Bidoons in Iraq

    There is little verified information available on the status of the Bidoon/ Bidun (Arabic for ‘without’) in Iraq. Most Bidoon originate from Kuwait . . . During the 1990 – 1991 occupation of Kuwait, a proportion of Bidoon fled (or were deported) to Iraq and subsequently faced difficulties re-entering Kuwait. The number of Bidoon entering Iraq at this time remain unclear, but is estimated to be no more than 100,000. Post’s understanding is that when the Bidoon entered Iraq, they received support from the former Baath regime (in particular former Foreign Minister and Deputy Prime Minister Tarek Azziz).

    The status of Bidoon in Iraq appears to fall into two categories. 47,417 individuals (6,955 families) are said to have been granted Iraqi nationality by the previous regime during a one-time assistance package called “Makremiayah” (meaning a generous act). This was primarily at the urging of advocacy groups such as “Rights Holders – Ashab el Haq”. To obtain citizenship, Bidoon had to declare that Kuwait was not their place of birth (ie had to renounce association with Kuwait) and often needed sponsorship by a local tribe (especially around the city of Samawa (100km from Nasiriyah) where the Bdour and Ghizi tribes wielded influence.

    There are reports that only about half of the Bidoon were granted citizenship under Makremiayah. The remainder are stateless in Iraq and number approximately 54,500 individuals or 5,430 families. These Bidoon were either unwilling to renounce their association to Kuwait, did not have sufficient affiliation to Iraqi tribes, were unaware of naturalisation processes or entered Iraq from a third country after Makremiayah.

    Since 2003, it has not been possible for Bidoon to claim citizenship in Iraq. The “Rights Holders – Ashab el Haq” association has been disbanded and there are reports that some of its members were detained. The Iraqi Ministry of Migration and Displacement has no record of registration of Bidoon since 2003.

    The stateless Bidoon live in the desert in the southern provinces of Basra and Dhi-Qar (especially around Samawa). They do not hold Iraqi nationality certificates, Iraqi ID cards or Public Distribution System (PDS) cards (which often double as identity cards). These Bidoon have no legal right to remain in Iraq and keep a low profile. Without documentation they cannot move freely within Iraq or outside of Iraq. They have no access to basic public services such as medical care or education. Births and deaths are not registered by Iraqi officials.

    Whether naturalised or stateless, Bidoon retain the title of ‘Bidoon’ in Iraq, due to their background. Most are nomadic and live in tents. Others live scattered in illegal public buildings and settlements (as even naturalised Bidoon do not have the right to own immovable property). Some Bidoon live integrated with other IDP squatter communities. The Bidoon appear to be tolerated by some local officials.

    There are large numbers of IDPs in Iraq, making it difficult to gather information on the Bidoon, including on discrimination and mistreatment since the fall of the Baath regime. However many minorities in Iraq, especially if associated with the previous Baath regime, are at a heightened security risk. Post is not aware of specific reports of mistreatment of Bidoon by the government or the community[8].

    [8]'RRT Country Information Request - IRQ37183 - The Bidoon', Australia: Department of Foreign Affairs and Trade (DFAT), CX249082 as cited in the RSA decision dated 9 January 2011.

1. Other independent sources indicate that some stateless Bidoons were able to register for identification documents that allowed them access to food rations and other benefits. The US State Department reported in 2018:

   As of 2006, the latest year for which data was available, an estimated 54,500 “Bidoun” (stateless) individuals, living as nomads in the desert in or near the southern governorates of Basrah, Dhi Qar, and Qadisiyah, remained undocumented and stateless descendants of individuals who never received Iraqi citizenship upon the state’s founding. Prolonged drought in the south of the country forced many individuals from these communities to migrate to city centers, where most obtained identification documents and gained access to food rations and other social benefits. . .

   Stateless persons faced discrimination in employment and access to education. Many stateless persons were not able to register for identity cards, which prevented them from enrolling in public school, registering marriages, and gaining access to some government services. Stateless individuals also faced difficulty obtaining public-sector employment and lacked job security[9].

   [9] US Department of State 2018 Country Reports on Human Rights Practices: Iraq at >

   That information does not suggest those stateless Bidoon who were able to register for identity cards were also granted citizenship. The applicant’s representative submitted that those who were granted citizenship had their identity cards amended to show they were born in Iraq, as part of the requirement that they renounce their association to Kuwait. It was submitted that those who were not granted citizenship retained their place of birth as Kuwait on their identity cards. There is some support for that position in the current DFAT report, which states that in order to obtain citizenship under the ‘makremiayah’ assistance package, Bidoon had to declare that Kuwait was not their place of birth and often needed sponsorship from a local tribal group. DFAT reports that local sources estimate that approximately 54,000 Bidoons remain stateless[10].

   [10] DFAT Country Information Report Iraq 9 October 2018 at 3.83

2. In view of that information, I accept his possession of an identification card is not on its own determinative of the question as to whether he is an Iraqi citizen. Given the applicant disclosed his possession of that document at each stage of his protection visa application process, provided a copy of the document to the Department and referred to his possession of an identity card in his statutory declaration setting out his claims for protection, it clearly formed part of the material before the RSA officer at the time she assessed him to be stateless. In these circumstances, the statement in the s.107 notice and the delegate’s decision to the effect that the applicant misrepresented his situation in an attempt to gain a positive outcome on his protection visa application is unfounded.

   The applicant’s returns to Iraq

3. It is not in dispute that the applicant returned to Iraq in 2012 and 2013. The applicant’s stated reasons for doing so are consistent with his visa history and his family’s visa history.

4. In his response to the s.107 notice, the applicant stated he returned to Iraq between [July] 2012 to [November] 2012 to see his wife and children, having been separated from them for the substantial period of one year and nine months. After being granted permanent residency in Australia, the applicant wished to plan in detail the next steps to bring his family to Australia safely. He also timed his return to spend time with his mother before she underwent a major operation.

5. The applicant flew into Erbil, the capital of Kurdistan because it was relatively more stable than other parts of Iraq. Erbil is heavily populated with Sunni Muslims and had a lower travel risk rating than other areas of Iraq (being ‘advise against all but essential travel’ rather than ‘advise against all travel’ on Australia’s Foreign Travel Advice website). The applicant entered on his Australian travel document (as is evident from the Iraqi visa and travel stamps on the copy of that document on the Departmental file).

6. I am satisfied the applicant returned to Iraq in 2012 to see his mother, wife and [number] young children and to assist them with the arrangements that were necessary for the family’s migration to Australia.

7. In his response to the s.107 notice, the applicant stated he returned to Iraq for the second time between [June] 2013 and [June] 2013 to accompany them on the journey to Australia after their partner visas were granted. I accept this to be true, noting Departmental records indicate the partner visas were granted on 29 April 2013 and the applicant’s wife and children entered Australia on the same date as the applicant, being [June] 2013.

8. However the applicant’s returns do not on their own indicate he is an Iraqi citizen. On both occasions he travelled on his Australian Titre de Voyage and copies of these documents are contained on the Departmental file. The originals were produced to me at hearing and they contain entry and exit stamps for both returns to Iraq. The earlier Titre de Voyage also contains a three month visa for entry to Iraq. This suggests the applicant was not regarded as an Iraqi citizen at that time.

9. The applicant claims that prior to his departure from Australia, he went to Immigration Melbourne in order to discuss his return to Iraq and the processes he needed to undertake to bring his wife and children lawfully. The applicant states he was never advised of the possibility of cancellation should he return to his home country; rather he was advised that given he had permanent residency, he could travel to and from Iraq as he wished. I note the applicant’s visa had no conditions attached that would prohibit his return to Iraq.

10. The applicant gave evidence that on his second return after the grant of the partner visa allowing his family to join him, he had been separated from his young family for a long time and he did not wish to wait for his application for an Iraqi visa to be processed by the Embassy in Australia. His in-laws told him to come immediately and they would pay money so that there would be no problems at the airport. He entered and exited Iraq using his Australian travel document without difficulty and those entry and exit stamps are present on that document. Movement records indicate he travelled to Iraq six weeks after his family’s partner visas were granted and the family returned together less than two weeks later.

    The statements of the applicant’s wife

11. The s.107 notice sets out that the applicant’s wife stated in an interview regarding her partner visa application that her husband was an Iraqi national, that he was in possession of an Iraqi identification card, national card and passport and that he was born in Thi Qar, Iraq.

12. I have viewed the notes from that interview which took place by phone on 24 April 2013. The interview does not appear to have been recorded and only brief notes of that interview are before me. Those notes are not a transcript, rather a list of questions with brief answers of only a few words. The notes record that the applicant’s wife was telephoned and asked if she would participate in an interview immediately or whether she wanted to set a future date. The notes record the applicant agreed to be interviewed on the spot.

13. The s.107 notice summarises parts of the statements alleged to have been made by the applicant’s wife during that interview. In relation to the applicant’s nationality, the s.107 notice sets out that the applicant’s wife stated the applicant was born in Thi Qar, Iraq, that he was an Iraqi national and that he was in possession of an Iraqi identification card, national card and Iraqi passport. The applicant disputes that his wife would have answered the questions in the way recorded in that interview.

14. In my view the s.107 notice does not accurately or fairly reflect the notes of the interview. Firstly, the interview notes do not suggest the applicant’s wife stated he held an Iraqi passport as set out in the s.107 notice. Rather she is recorded as stating he held an ‘ID, NC and CMC’, which I understand to refer to an identity card, a nationality certificate and a marriage certificate. The applicant provided copies of the identity card and marriage certificate to the Department during the processing of his protection visa application and claimed to have held a fake nationality certificate which was taken by the people smuggler together with his fake passport. For the reasons set out above, I have not accepted the applicant’s possession of an identity card to be determinative of his citizenship. Nor is it suggested that the marriage certificate is an indicator of his citizenship.

15. Secondly, while the applicant’s wife is recorded as initially stating that the applicant was born in Thi Qar, she immediately goes on to say she doesn’t know where he was born.  The applicant gave evidence that when the family returned to Iraq from Syria in 2010, they were told they needed to record his place of birth as somewhere in Iraq in order to obtain identity documents for their children, even though they had already given the applicant’s Kuwaiti birth certificate to the Iraqi authorities. They recorded Thi Qar, Iraq as his place of birth and that appeared on the children’s identity documents, even though the children were in fact born in Basra.

16. I note the applicant provided a translated copy of his birth certificate indicating he was born in Kuwait as well as a copy of his father’s Kuwaiti driver’s licence issued in 1978 (on which his nationality is recorded as Non Kuwait (stateless)). Further, significant communication difficulties were apparent during the Tribunal hearing, even with the assistance of a qualified interpreter. The applicant had only a few years primary school education in Kuwait and appeared genuinely not to understand the significance of many of the matters discussed at hearing. I consider he remains unaware of the different types of civil identity documents that are issued in Iraq, including the distinction between a national identity card and nationality certificate and his wife may similarly not have understood such questions. Even if his wife’s statements were correctly understood and accurately recorded, I consider they should be afforded less weight than the documentary evidence of the applicant’s birth in Kuwait.

    The nationality of the applicant’s wife and children

17. The final reason set out in the s.107 notice for suspecting the applicant is an Iraqi citizen is the fact the applicant’s wife and children entered Australia on Iraqi passports. However it is not in dispute that the children were automatically eligible for Iraqi citizenship through their mother, an Iraqi citizen, and this was accepted by the delegate.

18. As to whether the applicant could have obtained Iraqi citizenship through his marriage to an Iraqi national, sources indicate the position is unclear. A non-Iraqi male who has married an Iraqi female may make an application for citizenship if certain requirements are met, however it is unclear whether these laws are applicable to stateless Bidoons as there is a requirement that the person has legitimately entered Iraq[11]. In any case the couple must have been married and residing together in Iraq for no less than five consecutive years before making the application. As the applicant married in 2005 and left Iraq for Syria in 2007, returning only briefly to Iraq in 2010 before travelling to Australia, he cannot meet this criteria.

    [11] Iraqi Nationality Law 2006, Iraqi Official Gazette, Issue 4019, No. 26, National Legislative Bodies/National Authorities, 7 March, UNHCR Refworld, on nationality

19. Having considered all the matters set out above, I am not satisfied the applicant is an Iraqi national. While he holds an identity document of some kind, he disclosed this document to the Department at the first opportunity and it was part of the evidence before the RSA officer when she found the applicant to be stateless.

20. Country information set out above indicates that while Iraqi identity cards are only available to Iraqi citizens, many stateless Bidoons were able to obtain identity documentation of some kind. The process by which the applicant’s father obtained the applicant’s identity card is not known to the applicant and it is not clear whether that document is genuine or false.

21. I have considered the statements purportedly made by the applicant’s wife in her partner visa interview, but for the reasons set out above I am not satisfied those statements, even if accurately recorded, are reliable evidence of the applicant’s nationality. The applicant has always maintained he was born in Kuwait and has produced to the Department his Kuwaiti birth certificate and English language translation. The applicant’s returns to Iraq using his Australian travel document and an Iraqi visa do not suggest he is a citizen. The delegate has accepted the applicant’s children obtained their Iraqi citizenship through their mother and it is clear that the applicant does not at present meet the requirements for Iraqi citizenship through his marriage.

22. While some questions remain around the applicant’s second return to Iraq in 2013 and the status of his identity document, I am satisfied the applicant has disclosed the limited information available to him and he genuinely understands himself to be stateless. On the evidence before me I am not satisfied that the applicant is an Iraqi citizen. It follows I do not accept he has provided incorrect information about his citizenship as set out in the s.107 notice.

    Did the applicant give incorrect information about his fear of harm in Iraq?

23. The s.107 notice sets out that the applicant’s voluntary returns to Iraq in 2012 and 2013 indicate he did not have a fear of harm in that country at the time he made his claims for protection.

24. For the reasons set out in detail above, I have accepted that the applicant returned to Iraq in 2012 in order to plan in detail the next steps to bring his family to Australia safely and to spend time with his mother before she underwent a major operation. The applicant flew into Erbil, the capital of Kurdistan. This is significant because it was relatively more stable than other parts of Iraq, being heavily populated with Sunni Muslims. The applicant returned again to Iraq in June 2013, for a period of two weeks, to accompany them on the journey to Australia after their partner visas were granted.

25. His desire to return in these circumstances is not surprising. The fact that he returned to Iraq does not on its own indicate his stated fear of harm in that country at the time of his protection visa application was not genuine. Other relevant factors include the passage of time since his father’s death in 2007, the changed security situation in Iraq and the fact the applicant returned to Erbil and not Basra in 2012. 

26. For the following reasons, I do not consider such returns to be inconsistent with his claims for protection:

    a.It is apparent from the applicant’s protection visa application and accompanying statutory declaration that his fear of physical harm in Iraq related to his fear from Shia militants and extremist groups whom he believes killed his father in 2007. It is widely accepted that such groups posed a significant risk to civilians in Iraq at that time with DFAT reporting the conflict in Iraq descended into near sectarian warfare in 2006-07 when Shia militant groups embarked on a campaign of kidnappings and killings of their Sunni rivals;

    b.The security situation began to improve in 2008 following a new strategy involving a surge in US troops, the use of moderate Sunni tribesmen and an improved Iraqi army to combat insurgents. DFAT reports the US troops began to depart in 2009 with the last leaving Iraq by the end of 2011 ‘which ushered in a period of relative calm and reduced violence’ and it wasn’t until 2013 that violent incidents again started to increase[12];

    c.This is not a case where the applicant claimed to fear immediate physical harm or harassment from the Iraqi state or the Iraqi authorities. Rather his claims against the Iraqi state related to the long-term discrimination faced as a stateless Bidoon who was denied Iraqi citizenship, was unable to register property under his own name and generally faced discrimination in the provision of services as compared to the rest of the Iraqi population. In such circumstances he had no reason to fear the Iraqi authorities when returning to Iraq for relatively short periods as the holder of an internationally recognised travel document from Australia.

    [12] DFAT Country Information Report: Iraq, 20 November 2013 at 2.1 – 2.6.

27. For these reasons I am not satisfied the applicant gave incorrect information in his protection visa application in the manner set out in the s.107 notice. While his desire to support his family appears to have at times outweighed his fear of harm in that country, I do not consider his returns to visit his family between 2012 and 2013 indicate the claims made in his protection visa application were not correct.  It follows that I do not accept the applicant provided incorrect information about his profile or his fear of harm in Iraq in his protection visa application. 

    Conclusion on non-compliance

28. For these reasons, the Tribunal finds 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. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

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

    Alison Murphy
    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.