1815740 (Refugee)

[2020] AATA 1288

1815740 (Refugee) [2020] AATA 1288 (29 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815740

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Irene O'Connell

DATE:29 April 2020

PLACE OF DECISION:  Sydney

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

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – Federal Magistrates Court remittal – religion – Sunni Muslim – race – Bedouin – particular social group – Bedouins in Iraq – ground for cancellation – incorrect information in visa application – country of citizenship – claimed statelessness – Iraqi citizenship – claimed adverse profile – voluntarily returned to Iraq three times without any apparent issues of harm – requisite state of mind – distinction between ‘Bedouin’ and ‘Bidoon’ – sufficiently particularised notice – consideration of discretion – grant of visa not based on claimed statelessness – decision under review set aside

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

CASES
SZEEM v Minister for Immigration [2005] FMCA 27

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

BACKGROUND

1. This is a second review of a decision made on 15 February 2017 by a delegate of the Minister for Immigration to cancel the applicant’s 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate’s decision to cancel the applicant’s protection visa was affirmed on review by the Tribunal (differently constituted) on 20 July 2017. The applicant appealed the Tribunal’s decision to the Federal Magistrates Court and on 25 May 2018 the Court made consent orders requiring the Tribunal to reconsider the matter.

3. The applicant, formerly from Kuwait and Iraq and claiming to be stateless, arrived at Christmas Island as an Irregular Maritime Arrival [in] May 2012 on a boat codenamed [Boat ID]. He lodged an application for a protection visa on 25 August 2012 and was granted the visa on 5 April 2013.

4. The applicant’s visa was cancelled on the basis that he had not complied with s.101 of the Act. Section101 requires visa holders to complete their applications in such a way that all questions are answered and no incorrect answers are given.

5. Section 109(1) empowers the Minister to cancel a visa if the visa holder has failed to comply with this section of the Act. However before cancelling a visa a decision maker is required to issue the applicant with a notice of intention to cancel the visa. This notice must be issued as described in s.107 of the Act. Section 108 of the Act requires the decision maker to consider an applicant’s response to the notice in determining whether there has been non-compliance in the manner set out in the notice.

6. Cancellation of a visa under s.109 of the Act is discretionary and in exercising this discretion a decision maker is required to have regard to prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 (the Regulations). The Court in issuing consent orders for reconsideration of this matter formed the view that the previous Tribunal had not exercised this discretion reasonably.

   EVIDENCE BEFORE THE TRIBUNAL

7. The Tribunal has the following information before it:

   ·Department file [number] containing a summary of the applicant’s arrival entry interview, his application for a protection visa, supporting documentation and the decision record of the delegate granting the visa.

   ·Department file [number] containing the Notice of Intention to Consider Cancellation (NOICC) issued to the applicant, the applicant’s response to this notice (dated 7 August 2016), the decision record of the delegate and an International Treaties Obligation Assessment.

   ·Tribunal file (Number 1702643) containing submissions made by the applicant to the previous Tribunal and supporting documentation, an audio recording and transcript of the applicant’s hearing with this Tribunal and the decision record of the Tribunal.

   Protection visa application

8. The applicant lodged his protection visa application on 25 August 2012 and attached to it a lengthy statement of claims. His migration agent also provided a lengthy submission setting out relevant country information in respect to Bidoons.

9. In his responses to several questions set out in the protection visa application form he stated Please refer to my attached statement. This statement was as follows:

   Background Information

   My name is [the applicant] and I am a [age] year old male born in [Kuwait]. My ethnicity is Arab (Bedouin) and my religion is Sunni Muslim. I am married and have [number of children]. I have [number of siblings] in Iraq. My father, [and number of siblings] remain in Kuwait.

   Why I left my home country:

   I lived in Kuwait as a Bedouin, and I lived a nomadic life. But we were persecuted by the government of Kuwait because of being Bedouin. We did not have rights and could not get citizenship. I suffered harassment continuously, taunting that I had no citizenship, no rights, that I came from no place, it was degrading and humiliating. They did not issue us marriage certificates or birth certificate.

   When I was a teenager, when I got a job as a [Occupation 1] for the Kuwait [government]. They noticed my skills at sports, especially [Sport 1], and my role became to represent them in competitions. In the 1980's the attitude of the government changed and they began to ostracise Bedouins. Towards the end of the 1980's they started to restrict our employment and kick us out of [our jobs] for any reason. They restricted education and I had to stop going to school. We could not drive a car. They restricted medical treatment. They were scornful of us. Then in 1991 they threw me out of [my employment] and said I could not get my job back unless I could provide citizenship papers. I was very angry at the injustice, but more than that I was sad and upset, as I had devoted myself to my job and enjoyed and excelled at it.

   They said that all Bedouins must bring their citizenship or they must leave. Some of us were asking for our rights, a group of us went [to] ask for our jobs back, and they arrested us. They went and collected me and my wife and children, together with many other Bedouins, and drove us to the border. We stayed in a camp ten days and then were given a card to reside temporarily in Iraq.

   Why I left my country of former habitual residence:

   In Iraq I suffered harassment and persecution because I am Bedouin and Sunni, so they regarded me as Kuwaiti. They used to identify us by our accents and harass us. They would abuse me and swear at me. I used to go to a Sunni Mosque and they prevented me from going there. They closed three Sunni mosques. There was only one left and that one was under threat of being bombed at any time by the Shia militia. They are a radical militia group named Hezbolah, Tha'r Allah and other parties.

   They threatened me and my family. They kidnapped my son and took him to a football playing ground and broke his hand, three fingers, and cut his head with a razor. They left him there and a passerby took him to the hospital. He needed 30 stitches in his head. They tried to kidnap my other son but he escaped. They also used to write on the wall slogans that we are Wahabi and non­believers. They threw written threats inside my home saying that I either convert to Shia faith and abandon Sunni, or we have to leave, or we will kill you.

   Why I cannot relocate:

   I cannot return to my country of Kuwait because I am stateless, so there is no place in Kuwait for me. I have no rights to live there and no right to return. I cannot live in any part of Kuwait, even though I was devastated to be expelled.

   I cannot relocate to another part of Iraq because for the Bedouin there is no place to go. Also the Shia are majority in the south of Iraq. If we go to the south they will arrest us. Gangs from the north will especially target me if they know I am coming from the south.

   What I fear might happen if I go back to my home country and/or my country of former habitual residence:

   I am stateless and have no rights to return to any country. I cannot return to Kuwait because I have no right to go there, even though for me it is my home country. If I return to Iraq I fear that I will be arrested and they will kill me.

   Who I think will harm or mistreat me if I go back:

   If I return to Iraq I will be harmed or mistreated by the Iraqi government. The Shia militia will harm me and mistreat me. If I return to Kuwait I will be harmed and mistreated by the government.

   Why I believe they will harm or mistreat me if I go back:

   I am being harmed and mistreated because I am a Bedouin and a Sunni.

   Why I believe the authorities in my home country and/or my country of former habitual residence will not protect me if I go back:

   The Iraqi government is made up of parties and militia and these are the persons persecuting me. In Kuwait the government is the one who expelled me and I cannot go there, they do not want me there and will not protect me if I am there.

   Why I think I will suffer significant harm:

   I will suffer significant harm because I am a Bedouin and Sunni, and because I am stateless and have no place to live safely without harm.

   Protection visa grant

10. In granting the applicant a protection visa the delegate made several explicit findings. He was satisfied that the applicant “is an Iraqi national” and “is not stateless as claimed”. The delegate went on to state that:

    While I accept that the applicant cannot access citizenship in Kuwait despite having lived there for a number of years, he appears to be a citizen of his country of former habitual residence (Iraq).

11. The delegate was satisfied that the applicant did experience the episodes of past harm set out in his statement of claims and was satisfied that these experiences were because of the applicant’s religion and ethnicity. The delegate deferred to country information from a wide range of sources and found that the applicant’s claims were consistent with the available country information. The delegate was satisfied that the applicant had a well-founded fear of persecution by reason religion and race.

    Notice of Intention to Consider Cancellation

12. In the NOICC the applicant was said to have provided incorrect information in respect to two sets of questions in his protection visa application. The first set of responses identified as incorrect information related to questions 20, 21, 22 and 24 of the protection visa application form. These questions ask about citizenship at birth and current citizenship as well as citizenship of any other country and if stateless when and how this occurred. The applicant had responded that he is Bedouin and stateless.

13. The second set of responses identified as incorrect information are responses to questions 42 to 47 of the protection visa application form which asks about experiences of past harm and fear of future harm in respect to the country of reference. The applicant responded to these questions “please see my attached statement of claims.” 

14. The delegate in issuing the NOICC sets out this statement of claims, relevant findings of the delegate in granting a protection visa. He also sets out the applicant’s history of travel to Iraq subsequent to the grant of his protection visa. The following is then set out:

    The Department assessed you as an Iraqi national and therefore not stateless however it was accepted that you are Bedouin and therefore claims of persecution for reasons of race, religion and membership of a particular social group namely Bedouins in Iraq were accepted as true and on this basis you were granted your protection visa.

    I consider your answers are not correct because you were able to return to Iraq three times staying in Iraq for long periods of time and without any apparent issues of harm. I note that you claimed in your Protection visa application that "If I return to Iraq I fear that I will be arrested and they will kill me. If I return to Iraq I will be harmed or mistreated by the Iraqi government The Shia militia will harm me or mistreat me."

    These statements appear to be incorrect and suggest you did not hold the claimed adverse profile as you stated in your Protection visa application, as you have been able to travel unhindered and without any apparent consequence, to Iraq on multiple occasions for extended periods of time. Furthermore, you represented yourself to the Iraqi authorities on a number of occasions without any apparent harm, which suggests you were not of adverse interest in Iraq to the authorities at the time of your Protection visa application.

    Your itinerary and date stamps show you travelled into and out of Al Basrah International Airport without impediment or raising adverse attention from the authorities. Also, you stayed in Iraq for three months on the first return to Iraq just after the grant of your Protection visa, then five months on the second visit to Iraq and finally three months on the last visit to Iraq. These are lengthy periods of time in which you did not suffer harm or worse and you did not indicate when interviewed by Department inspectors at Sydney Airport that you suffered any adverse effects for the reasons of your race, religion or membership of particular social group while visiting family in Iraq.

    I consider your entry into Iraq via Al Basrah Airport without attracting attention from the authorities indicates you did not and do not hold an adverse profile in Iraq as claimed in your Protection visa application.

    I consider the apparent ease with which you were able to enter Iraq in your true identity an indication that your claims of harm should you return to Iraq were incorrect.

    I consider the length of stay in Iraq of three months, five months and three months over three separate trips indicates you were not of particular interest to authorities as you claimed in the Protection visa application.

    As the incorrect information at questions 20, 21, 22 and 24 and questions 42-48 of Part C of the Form 866 and in your Statutory Declaration were material to the determination that you were owed protection, it appears that you may not have engaged Australia's protection obligations.

    I consider you have not complied with section 101(b) of the Migration Act 1958 because your claims for refugee status relied upon your adverse profile as a 'Bedouin in Iraq' yet you were able to re-enter Iraq three times visiting your family when you had claimed that you would be persecuted or worse, should you return to Iraq.

    Applicant’s response to the NOICC

15. In his written response to the NOICC the applicant maintains that he is stateless. He acknowledges that shortly after receiving his protection visa he did return to Iraq several times and that he did so for family reasons.  He also indicated that he maintained a low profile to avoid possible harm:

    My client maintain that he did provide the department with national ID [number], the last page of the form 866 refer to the fact that he handed the department his national ID (copy of which is attached to this email), my client did not produce bogus document, the department already knew about this ID back in 2012, the fact that the Iraqi consulate issued a visa to him proves that he is not an Iraqi national, otherwise why they issue visa to someone who is citizen of that country, I don't believe that any country in the world will follow such procedure, the fact that he was issued with a visa to Iraq means that he is not a national of Iraq, my client maintain that the visa state that he is a national of Iraq just because he is a holder of an Iraqi ID.

    My client maintain that he went there to see his wife who was and still extremely sick (please see attached medical letters), my client married and had [number of] children, his wife and his children live in a house in Nasiryah in Dhi Qar province, his father and siblings all live in Kuwait, his wife and children who are Sunni's as well are suffering a great deal of persecution in Iraq due to the sectarian violence against Sunni's in the south of Iraq.

    My client maintain that his fear for his family safety and his wife's sickness forced him to go and see his family in Iraq, especially that his wife and children have no one to care for them, my client maintain that his wife's family also live in Kuwait, while his wife and children live there without any effective protection, he also maintain that his wife and children have no tribal or familial extension in the south of Iraq.

    My client maintain that the reason for his first trip to Iraq was the fact that his wife developed some [medical] problems which effected on her [health], he maintain that his wife is very anxious person especially that she hear some news about how the shia militia are targeting the Sunnis in the south, my client was granted the protection visa in 2013 however he could not sponsor his wife and children to Australia because he is IMA (“irregular maritime arrival", my client felt that he had no other option but to go there and see them.

    My client maintain that his answers to questions 20,21,22, and 24 of part C to be correct as he is a stateless person who lived in Iraq for some time and who was issued with an Iraqi ID but never was granted an Iraqi citizenship card, my client maintain that he is not a national of any country in the world and that the fact that he is stateless should be considered when it comes to the assessment of whether to cancel his visa, because such cancelation will make him a person without country to go to.

    On page 6 of the cancellation notice, you referred to the assessment made by the department about his nationality, you stated that the department decided that he was a citizen of Iraq ,also you mentioned that he was a Bedouin, in fact "bidoon" means "stateless" and Bedouin means "nomad " are completely different things, so if my client was assessed as a Bedouin then that doesn't necessarily contemplate that he is bidoon as well, however in this case, my client maintain that he is stateless person who lived as a Bedouin and as bidoon in Iraq.

    My client maintain that he fear the shia militias in the south because he is a member of the sunni minority in the south, my client maintain that he spent his time in Iraq hiding in the farms in dhi qar south of Iraq, fearing for his life if he is to be detected by the shia militia, he also maintain that he used an Australian travel document to enter Iraq because he is not a national of Iraq.

    My client maintains that the circumstances which led him to go to Iraq were very compelling in nature, also, he was and still of good character, and that he did not breach any law in Australia.

    My client maintains that his life will be at risk if he goes back to Iraq due to the fact that he is Sunni and because of his stateless background.

    Delegate’s decision to cancel

16. The delegate in cancelling the applicant’s protection visa found that the applicant’s answers to questions 20, 21, 22 and 24 that he is a stateless and stateless Bedouin were incorrect. This was because documentary evidence in the applicant’s possession on his return trips to Iraq indicated that he holds Iraqi citizenship.

17. The delegate also considered that the applicant had provided incorrect information in his protection visa application when he claimed that if he returned to Iraq he would be harmed or mistreated by the Iraq government or militia groups. The delegate formed the view that these statements were incorrect because the applicant did return to Iraq multiple times for considerable periods of time without encountering harm. Further, this tended also to the conclusion that the applicant did not have the adverse profile he so claimed.

1. The delegate went on to make several more detailed findings as follows:

   The correct information is that he is an Iraqi citizen and not a member of a particular social group namely 'Bedouins in Iraq’.

   The correct information is that he is not persecuted for reasons of his religion, that is, Sunni Bidoon given he has safely and voluntarily returned to Iraq just three months after his Protection visa was granted and made three visits to Iraq since the grant of the Protection visa. I give this no weight in favour of the visa holder.

   The visa holder provided an Iraqi ID card to the Department as part of his Protection visa application and he claimed at the time that this document was fraudulently obtained. As I have not made an assessment on whether the Iraqi ID card was genuine or not, I place little weight in favour of the visa holder in relation to his claims that the card was a genuine document in reply to the Notice. I am satisfied that the visa holder is an Iraqi citizen relying upon the letter from the Consul General of Iraq dated [in] 2013 in which is stated in part; "We hereby advise that [the applicant] who holds Australian travel document [number] is an Iraqi national in accordance of his Iraqi Identification [number]."

   Consequently, I find that the documents provided by the visa holder as part of the visa application in relation to Kuwaiti identity documents are fabricated. I am therefore not satisfied that the visa holder was born in Kuwait nor that he ever lived there. I give this no weight in favour of the visa holder.

   Whilst I acknowledge that the visa holder provided the national ID [number] to the Department as part of his visa application however I note that the visa holder claimed at the time that it was fraudulently obtained. I find it significant that the Iraqi Consul General subsequently provided written confirmation that the visa holder is an Iraqi national and accept this as prima facie evidence that the visa holder is an Iraqi national as found at the time of visa grant.

   First Tribunal

2. The applicant gave evidence to the first Tribunal by way of a hearing conducted on the 19 May 2017. He also made both pre-hearing and post-hearing written submissions to the first Tribunal. The Tribunal found that the applicant had provided incorrect information in his protection visa application in his responses to questions 20, 21, 22, 24, 42, 44, 46, and 47 of Part C of the form 866 and affirmed the cancellation of the applicant’s protection visa.

   Current Tribunal

3. The applicant made a submission to the Tribunal dated 2 March 2020 setting out the following. He contends that the delegate in finding the applicant to be owed protection did so without accepting the applicant’s claim that he was stateless. As such the claimed incorrect information as to the applicant’s nationality was not part of the reason for the grant of the protection visa and therefore should not be a basis for cancelling the visa.

4. The applicant further contends that the confusion over the terms “Bidoon” and “Bedouin” in the NOICC is not of minor concern but rather significant as it goes to the issue of statelessness and the applicant’s ethnicity and membership of a particular social group. He argues that this confusion should be taken to mean that the delegate could not have reached the requisite state of mind to cancel the applicant’s visa:

   The cancellation delegate did not understand the difference between the two meaning and that is why the applicant contends that delegate who cancelled his visa did not reach the necessary state of mind.

5. He provides copies of medical reports and country information in the form of news reports on the current situation in the area of Iraq from where the applicant originates. Reference is also made to the DFAT report of October 2018 in respect to the Shia/Sunni divide. The submission also attaches the delegate’s decision record granting the protection visa.

   FINDINGS AND REASONS

6. There are, as already noted, several pre-requisites to the cancelling of a visa under s.109 of the Act. The first of these is that a notice of intention to consider cancelling (NOICC) a visa must be issued in accordance with s.107 of the Act. The second is that consideration of cancellation must be confined to consideration of the possible grounds for cancellation as described in the NOICC. The power to cancel a visa is only enlivened once a decision maker is satisfied that there has been non-compliance of the kind described in the notice. Thirdly as cancellation of the visa under s.109 of the Act is discretionary a decision as to whether to cancel the visa must have regard to the prescribed circumstances as referred to in s.109(1)(c) of the Act.

   Was s.107 of the Act complied with when cancelling the applicant’s visa?

7. The applicant has contended that the delegate had not reached a requisite state of mind to issue the notice to the applicant. This he argues is evidenced by the fact that the terms Bedouin and Bidoon are used interchangeably in a confused manner in the notice.

8. The Tribunal does not accept that the use of these two terms can be taken as an indicator that the delegate had not sufficiently engaged with the matters of non-compliance before issuing the notice. The delegate’s referencing of Bedouin and Bidoon is not inconsistent with the applicant’s submission to the Department in lodging his protection visa application. The Tribunal notes that in his protection visa application the applicant provided a written statement describing himself as Bedouin. He also provided an accompanying submission detailing country information on Bidoons. 

9. In submission to the first Tribunal the applicant also suggested that the NOICC was not a valid notice because it was not sufficiently particularised. Section 107(1)(a) requires that the notice give particulars of the possible non-compliance. The applicant argues that it was not sufficiently particularised because of confusion over the use of the term Bidoon and Bedouin.

10. The applicant has not contended that the notice fails in any other manner to meet the requirements set out in s.107 of the Act. The Tribunal has itself not identified any failure in the NOICC to comply with the requirements set out in s.107 of the Act.

11. The Tribunal is satisfied that the notice did comply with the statutory requirements of s.107 of the Act and that it was sufficiently particularised.  The Tribunal makes this finding because the particulars were detailed and did enable the applicant a real opportunity to understand and attempt to answer the non-compliance allegation (see SZEEM v Minister for Immigration [2005] FMCA 27). This is evidenced by the detailed response the applicant provided to the NOICC.

    Was there non-compliance of the kind described in the notice?

12. The NOICC sets out two areas of possible non-compliance, a very specific area of possible non-compliance in respect to answers to questions of citizenship and a second broader area of possible non-compliance in respect to the applicant’s claim to fear harm. The first relates to the applicant’s response to questions 20, 21, 22, and 24 where the applicant stated that he was stateless and Bedouin. The second relates to the entirety of the applicant’s statement of claims which he attached to his protection visa and which he referred to in his responses to questions 42, 44, 46 and 47.

13. The applicant contends that his answers to questions 20, 21, 22 and 24 were correct because he is stateless. He suggests that his possession of an Iraqi ID card at the time of lodging his protection visa application does not give him citizenship in Iraq and he also maintained in his interview with the delegate assessing his protection visa application that the Iraqi ID card in his possession was a fraudulent document.

14. However as detailed in the NOICC the applicant’s subsequent travel to Iraq very soon after the grant of the visa with Iraqi documentation stating that he is an Iraqi national indicates that he provided incorrect information in his answers to question 20, 21, 22 and 24 when he stated that he is stateless.

15. The Tribunal does not accept the statement by applicant that the correspondence from the Iraqi Consulate only means that he is a holder of an Iraqi ID card, not an Iraqi national. As the delegate in granting the protection visa set out in the decision record the DFAT information is that ID cards are only issued to nationals of Iraq. The Tribunal is satisfied that the applicant is a national of Iraq.

16. As such the Tribunal is satisfied that there was non-compliance of the kind described in the notice in respect to the applicant’s answers to questions 20, 21, 22 and 24 of his protection visa application in which the applicant stated that he is stateless.

17. In respect to the second set of responses the Tribunal has some difficulty in finding that the applicant did provide incorrect information in his responses to questions 42 to 47 which was in effect his statement of claims.

18. The delegate in cancelling the visa considered the statement of claims to be incorrect information because in this statement the applicant claimed he could not return to Iraq because he would be harmed by the militia or government because of his religion and ethnicity. His return to Iraq on several occasions shortly after the grant of the visa belies his claim to fear harm and to be a person at risk of harm in Iraq.

19. There is considerable logic in this reasoning. The protection visa scheme is premised on the basis that Australia has an international obligation to provide protection to persons who arrive on its shores and are unable or unwillingly to return to their country of origin out of fear of persecution. To return to the country one has claimed to need Australia’s protection from on several occasions, for extensive periods of time, so soon after the grant of the visa does cast doubt on the applicant’s claims that he has a fear of harm in Iraq.

20. The applicant for his part contends that he does fear harm in Iraq and that his return to Iraq does not undermine his claims. Rather he was compelled to take the risk of returning to Iraq because his family needed his assistance and he is concerned for their safety. As was apparent in his hearing before the first Tribunal he wishes to move his family out of Iraq for their safety and has moved them to [Country 1] and hopes to bring them to Australia.

21. He also claims that he was discreet and careful when in Iraq and that his family were in hiding when the applicant was in Iraq and whilst he was in Australia.

22. The delegate in finding the applicant to have a well-founded fear of persecution drew heavily on country information from the US State Reports, Human Rights Watch, Amnesty International and the UNHCR. These reports indicate that Shiite Militia were actively seeking to harm Sunnis and that there was an absence of state protection in respect to this harm the applicant feared. The applicant’s claims about his past experiences and fear of harm is consistent with the country information on Iraq.

23. His voluntary return to Iraq of itself does not establish that the applicant provided incorrect information when he claimed to fear harm in Iraq. This is particularly so given that the applicant’s claims are consistent with the country information and it was country information which the delegate deferred to in accepting the applicant’s claim to fear harm on returning to Iraq.

24. Accordingly, the Tribunal is not satisfied that the applicant’ s responses to questions 42, 44, 46 and 47 are incorrect information and that there was non-compliance in the manner described in the notice in respect to his answers to these questions.

25. Any one incident of non-compliance of the kind described in the notice is sufficient to exercise the power to cancel. As the Tribunal is satisfied that there was non-compliance in respect his answers to questions 20, 21, 22 and 24, it is necessary to consider if the visa should be cancelled.

    Should the visa be cancelled?

26. The cancelling of a visa under s.109 of the Act is discretionary and subject to certain considerations.

27. The prescribed circumstances to be considered in deciding whether to cancel a visa are set out in r.2.41 of the Regulations. In sum they are: the correct information; the content of the genuine document (if any); 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; the circumstances in which the non-compliance occurred; the present circumstances of the visa holder; the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act; any other instances of non-compliance by the visa holder known to the Minister; the time that has elapsed since the non-compliance; any breaches of the law since the non-compliance and the seriousness of those breaches and any contribution made by the holder to the community.

28. The Tribunal has considered these elements and gives primacy to the consideration as to whether the grant of the visa was based wholly or partly on the incorrect information. As set out above at paragraph 10 the delegate, when granting the protection visa, found the applicant to be a national of Iraq and not stateless. This finding was not grounded in any admission on the part of the applicant who maintained that he was stateless. Rather it was based on country information sourced from DFAT which indicated that a person who held an Iraqi ID card would be a national of Iraq.

29. The applicant was granted his protection visa by the delegate on the basis that he was an Iraqi national and not stateless and that there was a real chance that should he return to Iraq he could face serious harm by reason of his religion – a Sunni Muslim whose ethnicity is Bedouin.

30. The Tribunal considers that the applicant’s central claim that he fears returning to Iraq because of religious and racial conflict in Iraq remains relevant and that his return there for purposes of seeing his family and attending to their safety does not nullify the grant of a protection visa to him.

31. The Tribunal considers that given that the incorrect information provided by the applicant that he was stateless was rejected by the delegate and was not part of the reason for the grant of the visa, and that the protection visa was granted on the basis that the applicant was an Iraqi national, the applicant’s protection visa should not be cancelled.

    DECISION

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

    Irene O'Connell
    Deputy Division Head

    
    

    .