1811868 (Refugee)

[2019] AATA 6013

1811868 (Refugee) [2019] AATA 6013 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811868

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Alison Murphy

DATE:23 July 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 23 July 2019 at 11:29am

CATCHWORDS
REFUGEE – cancellation – protection visa – incorrect information in visa application – nationality – stateless Bidoon – Iraqi national – subsequent correction of error – ‘makremiayah’ assistance package – fear of harm from Shia militias – voluntary return to Iraq – passage of time since father’s death – changed security situation – consideration of discretion – no bearing on decision to grant visa – significant mental health issues – non-refoulement obligations – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 119
Migration Regulations 1994 (Cth), r 2.41

CASES
DMH16 v MIBP [2017] FCA 448
Jalal v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 779

MIAC v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
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, his daughter’s country of citizenship and his fear of harm in his visa application. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 16 July 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 2012. He is married with one daughter. He arrived in Australia by boat [in] April 2012 and lodged an application for a protection visa on 10 August 2012. In that application he identified himself as a Bidoon born in Al Jahra, Kuwait who had spent most of his life in Iraq. He stated he held Kuwaiti citizenship at birth but became stateless in 1987. He stated he was currently stateless and did not hold citizenship of any other country.

7. The applicant provided a written statement with his protection visa application and was further interviewed about his claims on 24 and 30 April 2012 (the entry interview) and 15 August 2012 (the protection interview). In those statements and interviews he stated that his family was forced into Iraq in about 1993 by Kuwaiti authorities where they resettled with many other Bedouin families in Al Zubayr.

8. He stated that in 1994 his father was forced to join the Ba’ath Party and commenced working for that party, wearing the Ba’ath Party uniform and driving a Ba’ath Party vehicle. In March 2003 the US invaded Iraq and the Ba’ath Party was removed from power. In the aftermath Shia militias who had been repressed by the former Ba’ath regime began to exact punishment on members of the former regime. Like many other members of the Ba’ath Party, his father abandoned the party and started working as a [Occupation 1]. In about 2004, his father began receiving death threats. In 2007, his father was shot and killed by the Shia militia Jaish al-Mahdi. The family fled to Syria three days later where they remained until 2011, when the situation in Syria deteriorated.

9. They returned to the border of Al Zubayr as they were unable to relocate to another part of Iraq without permission from the Mayor and did not want to draw attention to themselves. They went to work [at a location] but were unable to register the [location] in their name because they were Bedouin. A friend, [Mr A], registered the [location] and allowed them to [work there]. As a Bedouin the applicant was not afforded the rights of an Iraqi citizen and in March 2012 the applicant fled Iraq.

10. On 4 December 2012, a delegate of the Minister assessed his claiMs Bnd found him to meet the definition of a refugee and the applicant was granted a Class XA Subclass 866 Protection visa on 19 February 2013. 

11. On 30 May 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 (the Department) 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. This arose because of identity documents relating to the applicant’s daughter that were submitted to the Department in support of a partner visa application.

12. The applicant responded to the NOICC on 3 August 2017. In that response he agreed he had returned to Iraq during the period identified by the delegate, but denied providing incorrect information in his visa application.

13. On 6 September 2017, the delegate made a decision to cancel the applicant’s protection visa.

    LEGISLATIVE FRAMEWORK

14. 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.

15. 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.

16. 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.

    THE REVIEW APPLICATION AND PROCEDURAL ISSUES

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

18. 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.

    CONSIDERATION AND ANALYSIS

    Is the s.107 notice sufficiently particularised?

19. 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:[1] 

    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.[2]  

    [1] [2000] FCA 1235.

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

20. 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’.[3]  

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

21. 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.[4]

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

22. 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.

23. 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.

24. The applicant was represented during the visa cancellation process. He responded to the s.107 notice on 3 August 2017. In that response he agreed he had returned to Iraq during the period 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 2013.

25. In submissions made to the Tribunal and his oral evidence at the Tribunal hearing on 16 July 2019, the applicant provided further information about his nationality and the circumstances of his return to Iraq in 2013.

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

26. 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 daughter’s nationality, on the basis that he claimed she was stateless but the delegate considered she is an Iraqi national;

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

    c)    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 return to Iraq in 2013 indicated he did not have a fear of harm in that country at the time he made his claims for protection.

27. 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.[5]

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

    Did the applicant give incorrect information about his daughter’s nationality?

28. In his protection visa application, the applicant stated his daughter [Ms B] was stateless. The delegate considers he gave incorrect information about his daughter’s statelessness during the protection visa application process, because she is in fact an Iraqi citizen. The s.107 notice sets out the reasons for this conclusion to be (in summary) that [Ms B] holds an Iraqi birth certificate stating that both her parents are Iraqi citizens and that she also holds an Iraqi citizenship certificate and an Iraqi passport.

29. The applicant does not dispute that his daughter [Ms B] is an Iraqi citizen. It is notable that the applicant provided documents to the department indicating that his daughter was an Iraqi citizen to the department during the assessment of his claim and corrected the incorrect information before the visa was granted. The delegate’s decision dated 4 December 2012 records that his daughter and wife are Iraqi citizens. However the Australian courts have held that non-compliance with the requirement to give correct information is not altered by the subsequent correction of the error.[6]

    [6] (2000) 60 ALD 779 at [17]. On appeal, the Full Federal Court observed that ‘[i]t may be, although it is not self evident, that, if the non-citizen corrects any incorrect information in accordance with s.105 before the grant of the relevant visa, then the visa may not be subject to cancellation under Subdivision C on the ground of the prior incorrect statement’; however the question did not arise, and the Court found it unnecessary to express any view about it: (2000) 102 FCR 63 at [19].

30. For these reasons I find that the applicant gave incorrect information about his daughter’s nationality during the protection visa application process, in the manner set out in the s.107 notice.

    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’s daughter [Ms B] holds the following Iraqi identity documents:

    oa birth certificate that records the applicant to be her father and states that he holds Iraqi citizenship. That certificate also states that her mother (the applicant’s wife) is an Iraqi citizen;

    oan Iraqi identity card that records the applicant to be her father;

    oa certificate of Iraqi citizenship that records the applicant to be her father and states that he was born in Baghdad;

    oan Iraqi passport issued [in] 2013;

    ·The applicant voluntarily returned to Iraq between [April] and [August] 2013.

    The applicant’s daughter’s identity documents

33. As noted above, the applicant does not dispute that his daughter is an Iraqi citizen. He argues however that his daughter inherited her Iraqi citizenship through her mother, also an Iraqi citizen, and not through the applicant. The applicant maintains that he himself is stateless.

34. It is relevant to note that the applicant produced to the Department during the protection visa application process a number of Iraqi identity documents relating to his wife and daughter’s Iraqi citizenship, as well as Kuwaiti identity documents relating to himself. The written record of his entry interview on 24 and 30 April 2012 records that the applicant advised the Department at this time that his wife and daughter had Iraqi identity cards and citizenship certificates. He also advised that he had an Iraqi marriage certificate as well as a Kuwaiti birth certificate, health card and his father’s Iraqi death certificate.

35. These documents were provided to the Department and are contained on the applicant’s protection visa file. To the extent that the s.107 notice and the cancellation decision suggest that the Department only became aware of these matters subsequent to the visa being granted, those suggestions are incorrect. The only documents not provided at that time were the applicant’s daughter’s certificate of citizenship and her Iraqi passport (issued [in] 2013, [after] the protection visa was granted).

36. At hearing the applicant told me he holds an Iraqi identity card which he provided to the Department along with the other identity documents during his protection visa application process. A copy of that document is contained on the Departmental file. The applicant’s representative advised that she also has a copy which she has attempted to have translated, but the quality of the document is such that not all parts of it are legible. The same is true for the copy on the Departmental file and at hearing the interpreter was able to translate only some details on that card, including that the applicant was born in Kuwait on [date].

37. I am satisfied that other than the applicant’s daughter’s passport and citizenship certificate, the identity documents referred to in the s.107 notice, as well as the applicant’s Iraqi identity document, were before the delegate who assessed the applicant’s protection claims. In the decision record, the delegate recorded that the applicant was married to an Iraqi citizen with whom he had an Iraqi national child. In full knowledge of these matters, the delegate assessed all the information before her and accepted the applicant’s evidence that he was a stateless Bidoon. The decision records the delegate specifically considered whether the applicant had been granted citizenship through the one off assistance package (makremiayah) and accepted that he had not been.

38. 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. She also recorded that she did not believe he could obtain Iraqi citizenship through his marriage to his wife, because he did not meet the residence requirements for acquiring citizenship through marriage.

39. At hearing before me the applicant maintained he had never been granted Iraqi citizenship. He denied his identity card was evidence of Iraqi citizenship, stating that stateless Bidoons were required to hold an identity document in order to live in Iraq.

40. The situation for Bidoons in Iraq is described by the Department of Foreign Affairs and Trade (DFAT) as follows:

    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.[7]

    [7] ‘RRT Country Information Request - IRQ37183 - The Bidoon’, Australia: Department of Foreign Affairs and Trade (DFAT), CX249082.

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.[8]

   [8] 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 it is necessary for children born to a stateless parent to record that parent as being born in Iraq and that this is not indicative of the parent’s actual birth place or that they are Iraqi citizens. It is submitted that those Kuwait Bidoons who were granted citizenship under the ‘makremiayah’ assistance package had their own identity cards amended to show they were born in Iraq, as part of the requirement that they renounce their association to Kuwait. Those who were not granted citizenship retained their place of birth as Kuwait on their identity cards. As noted above, the applicant’s identity card (as translated by the interpreter present at the hearing) states he was born in Kuwait.

2. The current DFAT report 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.[9]

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

3. In view of all the information before me, I consider that the statements in the applicant’s daughter’s identity documents to the effect the applicant is an Iraqi citizen born in Baghdad are not determinative of either of those issues. The applicant’s own birth certificate records that he was born in Kuwait and I consider this to be better evidence of his place of birth. Nor am I persuaded that any of the documents before me are sufficiently probative evidence of his Iraqi citizenship. Notwithstanding the provision of these documents to the Department early in the assessment process, the delegate assessed him to be stateless in full knowledge of the Iraqi citizenship of his wife and child. Given the applicant provided to the Department his identity card and identity documents relating to his wife and daughter at the time of his protection visa application, I do not consider he has attempted to mislead the Department.

   The applicant’s return to Iraq

4. It is not in dispute that the applicant returned to Iraq in 2013. The applicant’s reasons for this were to see his mother, wife and daughter and to sign the authority to allow his daughter to obtain a passport.

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 Bnd 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 travel stamps on the copy of that document, the original of which was viewed by me at the hearing). At hearing he gave evidence he flew into Erbil and then drove to Basra to pick up his family, remaining there for three days before returning with them to Erbil. I accept the applicant returned to Iraq between [April] and [August] 2013 to see his mother, wife and daughter and spent the majority of that time in Erbil.

6. The applicant’s return to Iraq does not indicate he is an Iraqi citizen. He travelled on his Australian Titre de Voyage and a copy of that document is contained on the Departmental file. The original was produced to me at hearing and contains entry and exit stamps for Iraq.

   Conclusion on nationality

7. Having considered all the matters set out above, I am not satisfied the applicant is an Iraqi national. While he holds an Iraqi 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 delegate who assessed the applicant to be stateless in the decision record dated 4 December 2012. Similarly documents indicating the applicant’s daughter and wife were Iraqi citizens were submitted to the Department and the delegate acknowledged they were Iraqi citizens in the decision dated 4 December 2012. 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 applicant states that his daughter obtained citizenship through her mother and not the applicant, and country information indicates that Iraqi citizenship is automatically conferred on a child born to an Iraqi mother or father.[10]

   [10] Article 3 of the Iraqi Nationality Law 2006, Iraqi Official Gazette, Issue 4019, No. 26, National Legislative Bodies/National Authorities, 7 March, UNHCR Refworld at

8. For these reasons I do not accept the applicant has provided incorrect information about his statelessness or country of citizenship as set out in the s.107 notice.

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

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

10. For the reasons set out in detail above, I have accepted that the applicant returned to Iraq in 2013 to spend time with his wife, daughter and mother. The applicant flew into Erbil, the capital of Kurdistan. It is submitted that this is significant because it was relatively more stable than other parts of Iraq, being heavily populated with Sunni Muslims. He returned to Basra for three days to collect his family before taking them back to Erbil.

11. 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. 

12. 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. The delegate recorded that the applicant recounted the events surrounding his father’s murder in great detail, that it was consistent with the high levels of sectarian killings that occurred during this time and she had no reason to doubt that incident occurred.

    b.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;

    c.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;[11]

    d.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 Bgainst 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.

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

13. 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 see his family appears at times to have outweighed his fear of harm in that country, I do not consider his returns to visit his family in 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

14. For the reasons set out above, I have not accepted the applicant gave incorrect information about his own citizenship or his fear of harm in Iraq during the protection visa application. However I have found that he gave incorrect information about his daughter’s citizenship in his protection visa application. As such, I am satisfied there was non-compliance with s.101 by the applicant in the way described in the s.107 notice and the ground for cancellation is established.

    Should the visa be cancelled?

15. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

16. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994.

17. The correct information: I consider the correct information is that the applicant’s daughter, [Ms B], is an Iraqi citizen, rather than stateless as stated in the applicant’s protection visa application.

18. The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 (relating to bogus documents).

19. Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: It is clear that the incorrect information about the applicant’s daughter’s statelessness had no bearing on the decision to grant the applicant a protection visa. This is because the applicant corrected the incorrect information before the decision was made and the delegate correctly found the applicant’s daughter was an Iraqi citizen and not stateless.

20. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his visa application, but later corrected at the protection interview. 

21. The present circumstances of the visa holder: Medical documents before the Tribunal indicate the applicant suffers significant mental health issues which appear to have been caused by the long period of separation from his wife and daughter. A report from a psychologist dated 7 July 2019 states that his visa cancellation has exacerbated his symptoms of depression and anxiety and has resulted in a significant deterioration of his mental health. That report states he experiences significant deficits in memory, concentration, decision making and alertness and an increase in suicidal ideation and self-harm. He lives in a shared house in [Suburb 1] and receives a Centrelink benefit. I am advised by his representative that his wife’s partner visa was refused when the applicant’s protection visa was cancelled and his application for citizenship has also been refused.

22. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: I have found that the applicant corrected the incorrect information about his daughter’s statelessness prior to being granted the visa.

23. Any other instances of non-compliance by the visa holder known to the Minister: The delegate’s decision indicates there are no other instances of non-compliance by the applicant known to the Minister. 

24. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his visa application in 2012 and approximately seven years have elapsed since then.

25. Any breaches of the law since the non-compliance and the seriousness of those breaches: The delegate’s decision records there are no known breaches of the law since the non-compliance occurred.

26. Any contribution made by the holder to the community:  There is no information before me relevant to this circumstance.

    Other factors to be considered

27. While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

28. If the applicant’s visa is cancelled, he will become an unlawful non-citizen and be liable to be detained. If detained, he is required to be removed from Australia as soon as reasonably practicable, notwithstanding any finding that he is owed non-refoulement obligations by Australia.[12]

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations under relevant international agreements

    [12] DMH16 v MIBP [2017] FCA 448

29. It is submitted that the applicant continues to hold a well-founded fear of harm if returned to Iraq, now or in the reasonably foreseeable future.

30. An International Treaties Obligations Assessment (ITOA) was undertaken by the ITOA delegate on 9 August 2017. It noted that despite earlier reports suggesting Sunnis could return to Iraq, the ITOA delegate gave significant weight to the current DFAT report that indicated that conditions for Sunnis had deteriorated since the applicant’s return to Iraq in 2013, particularly in non-Sunni dominated areas like Southern Iraq. The ITOA delegate also noted that as a [age]-year-old male of fighting age, he would be at risk of being imputed with Islamic State sympathies if he came into contact with the Iraqi Security Forces (ISF) or Popular Mobilisation Units (PSU). The ITOA delegate accepted that relocation was not reasonable for the applicant and the ITOA delegate was not satisfied he could safely return to central or northern Iraq. He concluded that there was a real chance that if returned to Iraq, the applicant would face persecution for reasons of his religion. He also found there to be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to Iraq, the applicant faced a real risk of significant harm. The ITOA delegate concluded that the applicant is a person to whom has Australia has non-refoulement obligations.

31. At hearing the applicant gave evidence that if returned to Iraq, he feared harm from militant Shia groups. DFAT’s most recent Country Information Report states:

    The numerous Shi’a armed groups in Iraq include Saraya Al-Salam (SAS, also known as the ‘Peace Brigades’, and partly made up of former Mahdi Army fighters), Asaib Ahl al-Haq (AAH), Kataib Hizbullah (KH), and the Badr Corps. SAS and the Badr Corps are the military arms of the Sadrist and Badr political movements respectively. Some Shi’a groups have sponsored the formation of local factional Christian and Sunni militias to divide and weaken these communities. Local and international observers have accused some PMF groups of committing abuses against civilians (see Popular Mobilisation Forces (PMF or Al-Hashd Al-Sha'abi)) and engaging in criminal activities. Violence between different Shi’a armed groups is also frequent, but usually low-level.[13]

    [13] DFAT DFAT Country Information Report Iraq 9 October 2018 at 2.36

32. DFAT reports that Iraq’s security situation is influenced by the actions of remaining ISIL fighters; other extremist fighters that have emerged since ISIL’s defeat; other armed groups including the state sanctioned PMF as well as historical intra-Shia and intra-Sunni tensions. It notes that large scale and violent protests occurred in Basra in 2018 about youth unemployment, infrastructure including water and electricity reliability and quality and public health concerns. Generally though DFAT notes that Southern Iraq, including Basra, is more secure than other parts of the country, although criminality and drug abuse exist in the region.[14]

    [14] DFAT DFAT Country Information Report Iraq 9 October 2018

33. The UK Home Office reports that Iraq’s government declared military victory against ISIL in December 2017, but insurgent attacks by remaining fighters continue to threaten Iraqis as they shift their attention toward recovery and the country’s political future. It reports that security conditions have improved since ISIL’s control of territory was disrupted, but IS fighters are active in some areas of the country and security conditions remain fluid.[15]

    [15] UK Home Office Country Policy and Information Note Iraq: Security and Humanitarian Situation November 2018

34. In light of the above information, I see no reason to depart from the ITOA’s conclusion that the applicant faces a real chance of serious harm and a real risk of significant harm if returned to Iraq, now or in the reasonably foreseeable future.  

    EXERCISE OF DISCRETION

35. Having given careful consideration to all the relevant circumstances, I consider the matters to which I am required to have regard weigh strongly against cancelling the applicant’s visa.  In particular I give significant weight to my findings below:

    ·While the applicant gave incorrect information about his daughter’s statelessness in his protection visa application, the correct information was known to the delegate when the decision to grant the visa was made in 2012 and had no bearing on the decision to grant the applicant a visa;

    ·The applicant’s return to Iraq in 2013 occurred in the context of his understandable desire to be reunited with his wife, young daughter and mother. He has not returned to Iraq or otherwise seen his family since 2013;

    ·The applicant suffers from significant mental health issues as a result of his traumatic experiences in Iraq, the cancellation of his visa and the long period from which he has been separated from his wife and daughter;

    ·In an ITOA dated 9 August 2017, an ITOA delegate assessed that the applicant continued to be owed protection obligations under both the Refugees Convention and Australia’s complementary protection obligations. The current country information before me does not indicate the situation has changed to an extent such that I should depart from that assessment.

    CONCLUSIONS

1. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Having regard to all the relevant circumstances discussed above, the Tribunal concludes that the visa should not be cancelled.

   DECISION

2. 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.