1831526 (Refugee)

1831526 (Refugee) [2019] AATA 5963 (26 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1831526
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Meena Sripathy
DATE:26 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 26 June 2019 at 10:17am

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – ground for cancellation – provided incorrect answers in visa application – claimed citizenship status – Kuwaiti born Bidoon – Iraqi citizenship – Iraqi Civil Status Card (ICSC) – issuance of Iraqi passports to applicant’s children – claimed religion – Sunni – Shia – claimed adverse profile – returned to Iraq on five occasions – compelling family reasons – consideration of discretion – provided ICSC to the Department at the earliest point in time – grant of visa based on applicant’s employment rather than claim statelessness – decision if the correct information was known – length of time since the non-compliance – positive actions and integration in the community – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), rr 2.41, 2.43
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The delegate cancelled the visa on the basis that the applicant did not comply with s101 of the Act and determined, having considered the prescribed circumstances under r.2.43, that the visa be cancelled.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 17 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
Notice of intention to consider cancellation under s.107
A notice of intention to consider cancellation (NOICC) was sent to the applicant on 18 December 2017. The notice said the delegate considered that the applicant has not complied with s101(b) of the Act which required that no incorrect answers are given or provided in his visa application. The notice provided particulars of information given by the applicant in his protection visa application that were alleged to be incorrect. Specifically the notice particularised the non-compliance as follows. That he provided the following incorrect answers on his Form 866 protection visa application:
·(Q11) that his wife was born in Kuwait and is stateless which is incorrect as she holds Iraqi identification documents that attest to her Iraqi citizenship and states her place of birth is Iraq.
·(Q11) that his two sons, [Child A] and [Child B] and daughter [Child C] are stateless which is incorrect as they are the holders of Iraqi identification documents that attest to their Iraqi citizenship.
·(Q12 & 13) that his father [Mr D] and brothers [Mr E] and [Mr F] are stateless which is incorrect as his brother [Mr E] has stated he is an Iraqi citizen and has an Iraqi identification document that attests to his Iraqi citizenship and, by operation of Iraqi nationality laws, if his brother is an Iraqi citizen, he and his father and other brother would be also.
·(Q14) that his religion is Sunni which is incorrect as information obtained in an identity assessment indicated he is a Shia Muslim and his brother has stated he is Shia. Country information indicates that the applicant and his brother would inherit their father’s religion.
·(Q21) that he is stateless which is incorrect as his children who were born before 2006 hold Iraqi citizenship and by operation of Iraqi nationality laws this attests to him, as their father, having Iraqi citizenship.
·(Q24) that he is a stateless Bidoon is incorrect because his [children] born prior to 2006 hold Iraqi identification documents that attest to their Iraqi citizenship which was only acquired through the parents.
·(Q42) that he sought protection from return to Iraq is incorrect because he voluntarily returned to Iraq on three occasions for a total of 244 days without apparent issue or impediment which indicates he does not hold the adverse profile claimed in his protection application and does not fear return to Iraq.
·(Q43) That his problems got worse after the fall of Saddam when the Shiites came to power because they are Sunni minority from Basra is incorrect because his children have Iraqi citizenship which indicates he is also an Iraqi citizen and his brother has provided evidence that he is an Iraqi citizen which indicates he is one also.
The NOICC sets out the evidence before the Department including:
·The answers he provided in Part B and Part C of Form 866 of his protection application made on 27 February 2012, including the Statement submitted in response to Q43, and supporting documents he provided with his protection visa application.
·Information provided by the applicant’s brother, [Mr E], in his Protection Visa application made on 24 August 2012 that he and his father were Iraqi citizens and Shia.
·Information and documents provided by the applicant’s [wife] in her Partner visa application on 4 December 2012 including Iraqi ID documents, Iraqi citizenship certificates and Iraqi passports for her and their [children].
·Country information which indicates that children born prior to 2006 inherit their father’s citizenship and therefore as the applicant’s [children] have Iraqi citizenship the applicant is an Iraqi citizen.
·Applicant’s travel outside Australia [from] October 2014 [to] January 2015 and documents he was found in possession of upon re-entry including his Titre de Voyage, boarding passes and e-ticket receipts for travel to Basra .
·Applicant’s travel outside Australia [from] September – [to] October 2015 and documents he was found in possession of upon re-entry including his Titre de Voyage, and incoming passenger card indicating spent the majority of the time in Iraq.
·Applicant’s travel outside Australia [from] June [to] August 2016 and incoming passenger card indicating he spent the majority of the time in Iraq.
·An Identity Assessment report on the applicant dated 8 April 2016 completed as part of the applicant’s Citizenship Application which refuted the applicant’s claimed identity on the basis of insufficient evidence to support that he is a stateless Bidoon and contradictory evidence of Iraqi citizenship provided by the applicant’s brother, wife and children. The identity officer was of the view the applicant was Shia not Sunni.
The applicant responded to the notice on 10 January 2018 with a submission from his representative and supporting documents. The submission asserted that that applicant complied with s101(b) and that his visa should not be cancelled. He maintained he is a stateless Bidoon born in Kuwait. He provided evidence in his protection application of a [certificate] issued [date] at a Kuwaiti primary school. He claimed his wife is also a Kuwaiti born stateless Bidoon, and attached a translation of her birth certificate. She obtained an Iraqi ID card by paying money to a mediator to be able to move around freely in Iraq. The children are also stateless, born in Iraq. The Iraqi ID cards they hold were obtained through payment of money. The applicant’s father is a stateless Bidoon born and raised in Kuwait and worked in various companies [there]. The applicant provided his parents’ marriage certificate previously to the Department, indicating their marriage [in] May 1966. His parents separated in the early 1990’s in Kuwait after the Iraqi invasion and he stayed with his mother and brother [Mr F]. His brother [Mr E], is a half-brother, who he had not seen before he came to Australia. [Mr E] recognised the applicant by a scar on his [Body Part 1] and the applicant spoke with his mother and she confirmed he had an older half-brother. He does not know if [Mr E] and his father would have obtained Iraqi citizenship. The applicant stated he is a Sunni but does not practice. His father is Sunni and his mother is Shia and Sunni –Shia marriages are common in Kuwait and Iraq. The applicant maintained he is a stateless Kuwaiti born Bidoon. He obtained Iraqi ID documents by payment of money. He obtained the documents for his wife and children as it was the only way to bring them to Australia. The applicant acknowledged he returned to Iraq as indicated in the NOICC. His return trips were motivated by his wife’s ill health, in respect of which he attached medical reports. During his stay he resided on a farm between Basra and [Town 1] and kept a low profile and avoided risk. He took a calculated risk because of his desire to see his wife and children. It is submitted his return visits do not mean that he told a lie in his application and is not inconsistent with his claimed fear. The following documents were attached with his submission:
·A scan of his wife’s [medical] test results, dated 1 August 2016.
·A translation of his wife’s birth certificate, indicating her birth in Al Jahra Kuwait
Other information
[Department file] contains a letter dated [in] 2016 issued by The Consulate –General of the Republic of Iraq/Sydney addressed to “Airlines” stating “We would like to advise you that [the applicant] the Australian travel document holder No ([number]) is an Iraqi citizen”, signed by the Deputy Consul General. The Tribunal notes this document is not mentioned in the NOICC.
Also included in the file are copies of the applicant’s last two Titre de Voyages showing entry and exit stamps for the 2014 and 2015 trips, a travel itinerary for his flight departing Australia [in] June 2016 and [returning] April 2017, and an outgoing departure card dated [in] June 2016 signed by the applicant indicating he will spend the most time abroad in Basrah.
ITOA Assessment
On 20 February 2018 an International Treaties Obligations Clearance letter was issued finding that Australia does not have non-refoulement obligations to the applicant.
On 26 October 2018 a delegate of the Minister made a decision to cancel the visa, having considered the applicant’s response to the NOICC and the matters relevant to exercising the discretion whether or not to cancel the visa.
Evidence before the Tribunal
The Identity Assessment Report referred to in the NOICC was not included in file [number], but was subsequently obtained by the Tribunal. This Report contained information including a (poor) copy of the applicant’s Iraq Civil Status Identity Card; an extract of the applicant’s brother’s protection claims indicating that he was among the Bidoons granted citizenship in Iraq and that he is Shia, information from social media analysis conducted by the officer relating to the applicant’s [social media] pages showing pictures of a Shia Iman Ali, his ‘liking’ of a Shia community group, Iman Husayn Al-hadi and pictures that appeared to be his father and brother.
The Tribunal also requested, and was provided, the applicant’s protection visa file[1] and the protection visa file of his half-brother [Mr E].[2]
[1] [Departmental file number]
[2] [Departmental file number]
On 16 May 2019 the Tribunal received the following documents from the applicant’s representative:
·An unsigned statement of [the] wife of the applicant. The statement provides information about her current living circumstances, background of birth in Kuwait to Kuwaiti born parents and move to Iraq in 1992, marriage at age [age] to the applicant, and that she is Sunni Muslim. She also recounts events that led the applicant to leave Iraq and the circumstances in which she obtained her passport and ID documents.
·An unsigned statement of [Ms G], mother of the applicant. The statement provides information of her current living arrangements, background in Kuwait and family situation, separation from her husband in the early 1990’s and coming to Iraq with her two sons including the applicant in 1993. She is Shia, but her husband was Sunni, mixed marriages were common then. She has not had contact with her former husband from the time she separated from him in Kuwait until about two years ago.
·An unsigned statement of [Mr F], brother of the applicant. The statement provides information of his current living arrangements, that he was born in Kuwait but never had Kuwaiti nationality. He describes their family life in Kuwait and meeting his half brother. His mother separated from their father, and he and the applicant went with her, they did not see their father again. In 1993 they went to Iraq and he has lived there since then but is not an Iraqi citizen. He is Sunni and was raised as a Sunni. He recounts the events that led the applicant to leave Iraq in 2011.
·A Statutory Declaration dated 15 May 2019 made by the applicant. He confirms the contents of the Statutory Declaration dated 25 January 2012 provided as part of his application for a protection visa. He provides information about his family background in Kuwait, when he met his half-brother, [Mr E], and when his mother separated from his father and they left the home of his father and [Mr E]. He moved to Iraq with his mother and brother in 1993. He provides further details of the events in July 2011 that led him to leave Iraq additional to those provided in his Statutory Declaration of 25 January 2012. He provides an account of when and how he came to reunite with [Mr E] in Australia and that he lived with him for a period after his release from detention. He no longer has any contact with [Mr E]. His provides information about how he obtained the Iraqi passports and ID documents for his wife and children. He paid [Mr H] US$1500 to obtain these documents. He provides information that he has travelled back to Iraq three times since he was granted protection. He went back in 2014 because he missed his wife and children and his wife was unwell. He contacted [Mr H] and asked him to arrange for the applicant to pass through Basra airport safely. He paid money to ensure this. He is a Sunni Muslim and provides information about his religious practice in Australia and the mosques he attends. He explains the reason and how he obtained the letter from the Iraqi Consulate dated 1 June 2016 stating he is an Iraqi citizen.
·Statement by [Mr I], chairman of [the Suburb 1] Mosque. He states he is a Sunni Muslim. He met the applicant around early 2017 through an introduction by another friend. Since that time he has sometimes seen the applicant at [the Suburb 1] mosque on other occasions. He believes the applicant is Sunni on the basis of his manner of prayer and attendance at the [Suburb 1] mosque, which although is open to anyone, Shia Muslims would usually attend Shia mosques and there is one nearby in [Suburb 2].
On 18 May 2019 the Tribunal received a submission from the applicant’s representative. The submission argued that the evidence of witnesses (as indicated in the statements provided to the Tribunal) will seek to establish the following:
·That the applicant is Sunni and not Shia as determined by the delegate in the cancellation decision. The evidence of the applicant’s family members and [Mr I], who is independent of the applicant’s family, supports this claim.
·That, contrary to the delegate’s finding, the applicant did hold the adverse profile he claimed in his protection visa application. He and his family members have given further evidence to corroborate aspects of his claims concerning events in Iraq in July 2011.
·The applicant has explanations for his return trips to Iraq from October 2014 to visit his family.
·The applicant maintains that he and his family are not Iraqi citizens. His wife and children’s ID card were issued [in] 2012, consistent with his claims about how they were obtained.
Tribunal hearing
At the hearing the applicant gave evidence about his current living and work circumstances. He has been living with one other person at the same address for the past 3 years. He works as a [Occupation 1], full time. The only family member he has in Australia is his brother [Mr E], with whom he lived for several years after they reunited at the detention centre after he arrived in Australia. When asked why he ceased living with his brother the applicant said that their relationship soured after [Mr E]’s wife and children came to Australia. He is not exactly sure what it is about but his wife does not like him to have a relationship with his brother. He no longer knows where he is or what he is doing. The applicant stated that he was not familiar with [Mr E]’s application for a protection visa or the basis for his claims. When asked if he was aware that [Mr E] indicated that he was an Iraqi citizen in his application, the applicant said he does not get involved and does not know very much about his brother.
The Tribunal asked about the applicant’s family in Iraq. He has his mother, brother, [Mr F], wife and children. He named his seven children by order of birth. The eldest [one] passed away after the applicant came to Australia. They were living on the farm and he became sick. The hospital was too far away and they could not get him there in time. He died around May or June 2012. All of his family members are living together at the farm in [Town 1] where he took them just before he came to Australia. Prior to this they all lived together in Zubair, Basra. The applicant said he communicates with his family regularly by [phone application].
The Tribunal asked the applicant about the claims he made in his protection visa application. He confirmed that he stated he is a Bidoon form Kuwait who came to Iraq in 1993. He had an Iraqi Civil Status Card (ICSC) given to him around this time, arranged by his brother [Mr F]. The card indicated that he was born in Kuwait. When asked if he has this card with him now he said he only ever had a copy of the card, which he provided to the Department. The Tribunal asked if he ever renewed the card in Iraq. He said he renewed it every 2 or 3 years because they had to do this. He used the ICSC as an ID and showed it to the authorities when asked. The Tribunal asked the applicant if he maintains his claim to be a stateless Bidoon. He said he does. The ICSC did not give him Iraqi nationality. His wife was also born in Kuwait and came to Iraq with her family in 1991 or 1992. She did not have an ICSC card. He does not know why, but thinks it may be because her father had no proof of his Iraqi origins and so they were unable to obtain the ICSC. It was different for his family.

The applicant recounted the incident which led him to leave Iraq in July 2011. He came home from his [job] one day, around 4 or 5 in the morning and he was shot at. When asked who shot at him he said he does not know, their faces were covered. He also does not know who wrote the threat letter he had received a few days earlier. He believes because of his job which involved [working with multinational forces in Iraq] he was considered to be an infidel and was targeted for this reason.
The Tribunal noted that he was granted a Protection visa on 13 August 2012 and asked when he first departed Australia after this. He said he believes it was one and an half or two years after he was granted the visa. The Tribunal put to him that movement records before the Tribunal indicates that he has been outside five times since the grant of his visa, and the first trip was in November 2012, only 3 months after the visa was granted. The applicant agreed that he has been back to Iraq five times. He said he went back to Basra to see his family, but only stayed for a few days. The Tribunal put to him that the movement records indicate that he stayed for a lot longer, up to four months on several of these trips. It asked him what he did during this time. He went back the first time because his wife has very sick, she suffers from [Medical Condition 1] and [Medical Condition 2] and she had also recently lost their son and was not doing well mentally. She had to look after all the young children and she could not cope so he had to return to help his family. His mother also has health issues and he needed to support them. All of the trips were to visit his family, he cannot recall the details of what he did each time but he only went back for this reason.
The Tribunal asked the applicant what document he used to travel to Iraq. He said he used his Australian travel document and had to obtain a visa for Iraq. He believed he needed to prove he was an Iraqi citizen to go back to Iraq so he asked his friend [Mr H] to get him a fake Iraqi ID card. He sent him this by [phone application] and the applicant showed this to the Consulate General and they issued the letter confirming he is a citizen. They did not do any checks.
The Tribunal discussed with the applicant the NOICC issued to him which described the alleged incorrect answers in his protection visa application. In essence it alleges that his claims that he, his wife and children, are stateless Bidoons are incorrect because of contradictory documents submitted by his wife and children in their Partner visa application indicating they are Iraqi citizens. The notice also alleges his claims that he, his brothers ([Mr E] and [Mr F]) and father were stateless and Sunni are incorrect on the basis that his brother [Mr E] provided contradictory information in his own protection visa application that he and his father were Iraqi citizens and Shia. It is also alleged that his claims relating to having an adverse profile in Iraq is incorrect on the basis that he has travelled back to Iraq several times without incident. The Tribunal invited the applicant to respond to this.
He said all of the documents submitted by his wife and children, including the Iraqi ID card, nationality certificate and passports are fake documents that he arranged by payment of money. They are all stateless Bidoons like him. The Tribunal put to the applicant that he is effectively asking the Tribunal to find that his wife and children submitted bogus documents in their visa application and, if the Tribunal accepts this, it may have an adverse impact on that application. In response, he said his wife is very sick, she is becoming blind, they have lost a child, and he was just desperate to bring them here. Regarding his brother [Mr E], they have a different mother. He confirmed that their father is the same. When the Tribunal put to him information before it indicates [Mr E] has claimed that he and their father are Shia not Sunni, the applicant reiterated that his father is Sunni and he does not know anything about what [Mr E] did or why.
The Tribunal put to the applicant that independent information before it from the UNHCR and DFAT[3] indicates that there are two categories of Bidoons from Kuwait who came to Iraq in the early 1990’s. One group were able to obtain Iraqi citizenship under a process known as Makremiayah. This group were issued Iraqi ID cards and were eligible for Iraqi citizenship. The other group who did not take up this offer, remained stateless and did not have ID cards, PDS cards or nationality certificates and were not able to gain Iraqi citizenship. The Tribunal has been unable to locate any independent information which suggests that a Kuwaiti born Bidoon who had obtained an ICSC upon arrival in Iraq was not included in the former group above, ie. those who had obtained Iraqi citizenship. The applicant was invited to provide such information to support his claims.
[3] United Nations High Commission for Refugees (UNHCR), 2010, Email ‘Bidoon in Iraq’, 8 September <Attachment>; Department of Foreign Affairs and Trade (DFAT), 2010, RRT Information Request: IRQ37183, Report No. 1197, 14 September <Attachment>
The Tribunal put to the applicant that the evidence of his wife and children’s identity and citizenship documents, the above mentioned country information about Bidoons in Iraq and his brother’s [Mr E]’s contradictory claims all point towards him being an Iraqi citizen and not stateless. Following a short adjournment with his representatives the applicant did not have anything further to add or change and simply asked the Tribunal if it could help him.
The Tribunal put to him that the NOICC also alleged that his claims regarding the problems he had in Iraq are incorrect on the basis that he returned there five times, starting from very soon after he was granted protection, and stayed for significantly long periods. He repeated that he went back for family reasons.
It was also alleged in the NOICC that his information about his religion is incorrect and included in the evidence before the Tribunal on this issue, is a social media analysis done by the departmental officer who undertook the Identity Assessment referred to in the NOICC. The Tribunal put to the applicant that pages purportedly from his [social media] account showed images of him and his father and brother and also a picture of a Shia Imam and that he ‘liked’ a Shia community group and invited his comment on this information. The Tribunal provided a copy of the information[4] to the applicant. He confirmed that this was his [social media] account and the photos shown were his brother [Mr F] and father. He denied that his brother or father were Sheikhs or had any religious status as claimed in the report. He confirmed the picture of the Shia imam posted and the reference to the Shia community group. He said his mother is Shia and he has never had any problems between Shia and Sunni. They all lived together in the past and for him there is little difference between the two sects so he embraces both.
[4] Folios 33, 34,35 on Tribunal file [1831526] provided by the Department to the Tribunal
The Tribunal explained to the applicant that if it concludes that he has provided incorrect information in his application, then it must consider whether to cancel the visa and referred to the matters it must consider under regulation 2.41. It noted that neither he nor his representatives have made any submissions addressing the discretionary factors to date and it will provide an opportunity for his representative to provide further evidence and submissions on this after the hearing.
The applicant told the Tribunal the current situation for his wife and children are not good. His wife’s health is poor. He is living a good life in Australia, working and paying taxes. He has had no problems with the government here. He sends money home to his family and is the main financial support for all of them.
Post hearing submissions
On 7 June 2019 the Tribunal received the following documents and evidence:
·Post hearing submissions from the applicant’s representative.
·Statutory Declaration of the applicant dated 7 June 2019 addressing issues arising during the hearing, referring to supporting evidence.
·Evidence relating to applicant’s employment, including income tax returns for the financial years 2013-2018.
·Evidence of money transfers to his family in 2018-2019.
·Letter confirming blood donation in February 2019.
·Letter from [Sheik J], Chairman [of a named] Mosque, [Suburb 3]
The submissions reiterate the applicant’s position that he did not provide incorrect information in his protection visa application. In support of this, the Tribunal was referred to the evidence provided to the Tribunal relating to the events that occurred in July 2011 which caused him to flee Iraq, including his evidence in his Statutory Declaration dated 15 May 2019 and the statements of his brother, mother and wife; and the evidence supporting that he is Sunni Muslim. The Tribunal was also referred to country information (the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Iraq, 31 May 2012) supporting the applicant’s claims to have been targeted by Shia militia groups on the basis of his association with [multinational forces in Iraq] as a result of his [job]. It was submitted that the Tribunal’s proposition at hearing that the applicant’s possession of an Iraqi personal ID card suggested that he was an Iraqi citizen does not reflect the complexity of the matter, and that the country information indicates the situation is more complex and less certain. It was argued that information in DFAT reports indicates that nationality certificates rather than ID cards, evidence citizenship; the DFAT and Landinfo reports also indicate there are additional requirements beyond merely holding a personal ID card to obtain a nationality certificate; and that fabrication of personal ID cards is common (Landinfo report). It was submitted whether the applicant’s statement in his protection visa application that he was stateless was correct or the reasonableness of his belief in that, depends on country information in the years up to 2011, which the representative stated they did not have the resources to locate. Regarding the applicant’s return visits to Iraq, the submission refers to the applicant’s explanations for these visits provided in his Statutory Declaration and oral evidence. The submission also addresses the discretionary factors under r.2.41.
36.The applicant’s Statutory Declaration addresses matters discussed at the hearing, including his personal ID card, circumstances of his visits back to Iraq and information about his circumstances in Australia.
CONSIDERATION
As indicated above, 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. However, 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. In this case a notice (NOICC) was issued dated 18 December 2017.
Did the notice comply with the requirements in s.107?
The Tribunal has considered the validity of this NOICC, and 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 Tribunal is satisfied that the notice provided sufficient particulars of the alleged non compliance sufficient to satisfy s107(1)(a) in that it identified the specific information that was alleged to be incorrect and the basis for the allegation.
Was there non-compliance as described in the s.107 notice?
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 s101(b) in the following respects:
·His responses in the protection visa application forms that his wife, children and himself were stateless were incorrect on the basis of the Iraqi identification documents provided for his wife and children and his own Iraqi personal ID card, which attest to their Iraqi citizenship and, by operation of Iraqi laws, indicate that he is also an Iraqi citizen.
·His responses in the protection visa application form that his father and brothers, [Mr F] and [Mr E], are stateless were incorrect, on the basis of information provided by [Mr E] in his own protection visa application that he, and his father, are Iraqi citizens.
·His responses in the protection visa application form that he is Sunni is incorrect on the basis of his brother, [Mr E]’s claim in his application that he and his father are Shia, and country information which indicates children generally follow the religion of their father.
·His responses in the protection visa application about the reasons he fears return to Iraq are incorrect on the basis that he returned voluntarily to Iraq on 3 occasions for a significant periods of time which indicates he did not have the adverse profile as claimed and did not fear returning to Iraq.
The Tribunal has considered the applicant’s response to the NOICC, and his submissions, written and oral evidence to the Tribunal and reaches the following conclusions about whether there has been the non-compliance as alleged.
Whether the applicant’s information that he and his family members are stateless is incorrect
Throughout this cancellation process the applicant has maintained that he is not an Iraqi citizen, despite holding an Iraqi Civil Status Card (ICSC) since he arrived in Iraq from Kuwait. His evidence to the Tribunal, asserted adamantly and repeatedly, was that he was given this document after he arrived in Iraq, but it did not entitle him to Iraqi citizenship. The Tribunal notes the applicant declared this document as soon as he arrived in Australia at his entry interview held on 20 November 2011, and a copy was provided at this time. A translation of this document was also subsequently provided with his Request for Protection Obligations Determination.[5] Therefore it is clear the Department was on notice that the applicant was in possession of an ICSC from the beginning, however it appears to have accepted his claims made at that time that he was, nevertheless, stateless.
[5] [Department file] folios 13, 22, 29
Since then, information has come before the Department, provided with his wife’s Partner visa application, that indicates his wife and children are Iraqi citizens, evidenced by their Iraqi ID cards, nationality certificates and passports. This, together with information that the applicant travelled back to Iraq on several occasions since the grant of his protection visa, and further information obtained by the Department from his half-brother, [Mr E]’s protection visa application, where [Mr E] declared that he and his father (the applicant’s father) were Iraqi citizens, led to the initiation of the present cancellation process.
Information provided by DFAT indicates that the Bidoon (Arabic for ‘without’) are a group of often stateless persons in the Gulf region, primarily Kuwait. There is little verifiable information available on the status of the Bidoon in Iraq. During the first Gulf War, a proportion of Bidoon fled (or were deported) to Iraq and subsequently faced difficulties re-entering Kuwait without appropriate documentation. Kuwait considered those who fled to Iraq as supporters of the Iraqi regime and affiliated with the Iraqi army, and therefore not loyal to Kuwait. The majority of Bidoons are Sunni Muslims, with a small minority being Shia, and more than 80 per cent are reported to live in the southern part of Iraq[6]. The status of Bidoon in Iraq appears to fall into two categories. According to DFAT and the UNHCR, approximately 47,000 Bidoon were granted citizenship by the Ba’ath regime through an assistance package called the makremiayah. In order to be granted citizenship, Bidoon had to declare that Kuwait was not their place of birth and often needed the sponsorship of a local tribe.[7] UNHCR has advised that those Bidoons who became citizens under this arrangement possess Iraqi ID cards and nationality certificates whereas those who do not hold Iraqi citizenship do not hold ID cards, nationality certificates or PDS cards.[8] Country information from a number of different sources considered by the Tribunal also indicates that a person in possession of an Iraqi ID card is an Iraqi citizen[9] and that stateless Bidoons are unable to obtain Iraqi ID cards.[10]
[6] DFAt Country Information Report Iraq 29 November 2013, para 3.65 -3.67
[7] DFAT Country Report on Iraq 9 October 2018, p22; UNHCR 2010, Response to research request by the Refugee Review Tribunal on 9 September 2010.
[8] United Nations High Commission for Refugees (UNHCR), 2010, Email ‘Bidoon in Iraq’, 8 September <Attachment>
[9] 'RRT Country Information Request IRQ40871 - Iraqi ID Cards', Department of Foreign Affairs and Trade (DFAT), 12 September 2012, CX294968 ; Iraq: Civil Status System Law (1974)', Republic of Iraq, 24 August 1974, p.5, 20190325163740
[10] 'Homeless At Home: Iraq's Displaced Persons Cause Ethnic Tensions', Kamal, A, Niqash, 27 July 2011, 20190322154628 , RRT Country Information Request - IRQ37183 - The Bidoon', Department of Foreign Affairs and Trade (DFAT), 13 September 2010, CX249082
The Tribunal was unable to find any other independent information that supports or is consistent with the applicant’s claims that he held an ICSC but was not eligible for citizenship or that indicates Bidoons were given ICSC (ID cards) despite not gaining citizenship through the makremiayah process. The above information was discussed with the applicant and his representative at the hearing and he was invited to provide any other information that would support his claim. The Tribunal has considered the post hearing submissions made in response, specifically arguing that the country information on this issue is not as clear cut as the Tribunal has suggested, but rather more complex and less certain. It was argued that information in various DFAT and Landinfo reports indicate that the Iraqi nationality certificate evidences citizenship, rather than an ICSC and that this country information cannot be relied on to conclude that the applicant’s possession of an ICSC of itself evidences his Iraqi citizenship. The applicant has also referred to country information that indicates false Iraqi ID cards can be purchased.
While the Tribunal acknowledges that country information refers to the prevalence of fraudulent ID cards and documentation in Iraq,[11] the applicant has not claimed his ICSC was obtained fraudulently. His claim is only that the ID card he had did not make him eligible to obtain a nationality certificate and passport, and that he was required to buy these other documents to depart Iraq. He also specifically told the Tribunal that he renewed his ICSC several times since it was first provided to him. It notes that the copy of the ICSC before the Department and Tribunal was issued in 2008 and is likely to be a renewal rather than the original.
[11] Immigration and Refugee Board of Canada 2016, IRQ105418.E - Availability of fraudulent identification documents, 18 February Landinfo Country of Origin Information Centre 2015, Iraq: Travel documents and other identity documents, 16
In addition to the applicant’s ICSC card, the Tribunal also has the following evidence before it which supports the conclusion that he is an Iraqi citizen. His wife and children submitted Iraqi Civil Status cards, Nationality certificates and passports evidencing their Iraqi citizenship. Country information indicates that children under the age of 10 years require their father to document Iraqi citizenship to obtain passports.[12] His brother claimed in his application that he and their father were Iraqi citizens and provided evidence of his ICSC. If his father was eligible for citizenship, this would tend to support that the applicant was also. Additionally, the Department file includes a letter from the Iraqi Consulate in Sydney[13] confirming that the applicant is an Iraqi citizen. Independent information before the Tribunal suggests that the issue of a document such as this would have entailed verification of the identity and nationality of the applicant against identity documents or source records.[14] The Tribunal notes this document is not included among the particulars notified in the NOICC but considers that it is further evidence before the Tribunal which supports the allegation made in the NOICC.
[12] Landinfo Country of Origin Information Centre 2015, Iraq: Travel documents and other identity documents, 16 December, p.9 < Folio 23 [Departmental file]
[14] See for example information in DFAT Country Information Report Iraq November 2013 paragraph 5.23 and para 5.31 of the 13 February 2015 Report regarding issuance of a laissez-passer document by the Iraqi Consulate Sydney; and DFAT Country Report 9 Oct 2018 p30, para 5.22-5.23

The Tribunal has considered the applicant’s responses when the above matters were put to him for comment. In response to the information about his wife and children’s documentation, the applicant said he paid money to arrange for his wife and children’s documents, as he did to obtain his own passport to depart the country. However the Tribunal observes the applicant’s evidence on this has been contradictory and inconsistent. In his response to the NOICC the applicant stated that he paid a mediator named ‘[Mr K]’ the sum of $1500 to arrange for Iraqi identity documents and passports for his wife and children in 2012. However, in his Statutory Declaration dated 15 May 2019 and oral evidence to the Tribunal, the applicant referred to contacting his friend [Mr H] and sending him $1500, to pay for the documents for his wife and children. The Tribunal has also considered but rejects the argument made by the applicant that his wife and children’s documents indicate an issue date in 2012 which is consistent with his explanation that he arranged for them at this time and his assertion that they did not have these documents earlier that than date. The Tribunal observes that the translations of the citizenship certificates of his wife, daughter and son included in file [number] (at folios 7,10,13) states “this certificate has been issued in accordance to the previously issued one” suggesting, contrary to the applicant’s claim, that these are renewals of previously held documents. Additionally, the translation of the death certificate for his son provided to the Tribunal following the hearing, indicates his son’s nationality as Iraqi.
Given the inconsistencies and contradictions in the applicant’s claims and all of the evidence before it, the Tribunal is not inclined to accept his explanation about how he and his wife and children obtained their Iraqi documents and passports. It notes that in his original statement of protection claims, he referred to paying his friend, [Mr H] the sum of $1500 to obtain a forged Iraqi passport for himself so that he could flee from Iraq. He now claims he paid same amount of $1500 to arrange for 7 sets of false documents for his wife and six children. The Tribunal does not find these claims plausible or credible. On the other hand, it may be plausible that the applicant paid a mediator to facilitate the issue of genuine documents that he and his family members were eligible for.
Regarding his brother, [Mr E]’s, claim in his own protection application that he and their father had obtained Iraqi citizenship, the applicant offered no further explanation, saying that he did not know [Mr E] in Kuwait or Iraq and has no knowledge of his circumstances there. He maintained, contrary to [Mr E]’s claim, that his father is Sunni and not Shia Muslim. The Tribunal obtained and has considered the documents and information provided in [Mr E]’s protection visa application. It notes that [Mr E] stated that he was born in Kuwait and came to Iraq with his father in the 1990’s and that they obtained Iraqi citizenship in 1998. He also claimed, consistently with the applicant, that their status in Iraq was limited in that they had the right to reside and work but not to own property. [Mr E] provided documents evidencing his Iraqi nationality and that of his wife and children, including copies of their ICSC, nationality certificate and passports with his application. Given the consistent information before the Tribunal that the applicant and [Mr E] are half-brothers and did not live together in Kuwait or Iraq, the Tribunal does not rely on the evidence of [Mr E]’s Iraqi citizenship solely to determine the issue of the applicant’s citizenship status. However, together with other documents and evidence, it considers that it does support the conclusion that he too acquired Iraqi citizenship.
The Tribunal has also considered and gives some weight to the applicant’s employment as a [Occupation 1] as he has claimed in his application. His ability to secure such employment is another factor supporting his status as an Iraqi citizen. Country information before the Tribunal suggests that undocumented stateless Bidoons would be unable to access such kinds of employment.[15]
[15] DFAT Country Information Report February 2015, para 3.87
Taking all of the above into account, and in light of the available independent information, the Tribunal finds that the applicant’s possession of an Iraqi ID card, is a strong indicator that he was amongst the 47,000 Bidoon who were granted Iraqi citizenship following his arrival into Iraq from Kuwait. It does not accept his claim that despite having this document he was not eligible for a nationality certificate or passport. Other documents before the Tribunal, including the Iraqi nationality certificates and passports of his wife and children support the conclusion that the applicant and his wife must be Iraqi citizens. Given the country information referred to above that children under the age of 10 can only be issued a passport if their father can document Iraqi citizenship, and the fact that four out of six of the applicant’s children were aged 10 or under at the time their passports were issued, the Tribunal finds they would have required evidence of the applicant’s Iraqi citizenship to be shown for their passports to be issued. The letter from the Iraqi Consul General, information in [Mr E]’s application, and his employment history in Iraq further supports the Tribunal’s conclusion.
For all these reasons the Tribunal finds that the applicant, his wife and children were Iraqi citizens prior to him coming to Australia in 2011. Therefore, it finds that he provided incorrect information in his application form when he stated his and his family’s citizenship status as stateless.
Other allegations of incorrect information in the NOICC
The NOICC also alleged that he provided incorrect information that his father and brothers are stateless. For the same reasons and arguments referred to above, and in light of the evidence of [Mr E]’s ICSC contained in his own protection visa application, the Tribunal finds that the applicant provided incorrect information in his application when he stated that these family members were stateless. However given his claim, which has been asserted consistently since his arrival in Australia, that his mother separated from his father when he was young and prior to his arrival in Iraq, the Tribunal is prepared to accept that the applicant may not have known where his father and [Mr E] were and whether they had obtained Iraqi nationality. Therefore it is prepared to accept that his response that they were stateless may have been correct as far as he knew at that time. The same could not be said of his brother [Mr F] however, as on his own evidence, he came to Iraq with [Mr F] and [Mr F] obtained the ICSC for him.
The NOICC alleges that the information provided by the applicant in his application that he was Sunni is incorrect on the basis of [Mr E]’s claim that their father was Shia, information obtained from his Facebook account suggesting he may be Shia, and country information that indicates children generally following the religion of their fathers rather than mothers. In response to this the applicant has maintained that he is Sunni not Shia, that his parents were of a mixed marriage but his mother was Shia and father, Sunni. He has also submitted supporting evidence from an imam of [Suburb 1] Mosque confirming that he is a regular attendee of the Sunni mosque and prays in the manner of a Sunni. The Tribunal has considered all of this evidence and is not satisfied that it has sufficiently probative evidence before it on which to base a finding that the applicant is Shia rather than Sunni. It also observes country information suggests the majority of Bidoons who came to Iraq from Kuwait were Sunni.[16] For these reasons the Tribunal is not satisfied that there is a sufficient basis to conclude the applicant gave incorrect information as to his religion.
[16] DFAT Country Information Report Iraq 29 November 2013
Finally the NOICC alleged that the reasons given by the applicant for seeking protection were incorrect on the basis that he returned to Iraq on three occasions after he was granted protection which suggests he did not have the adverse profile claimed. In response to this the applicant has reiterated the incident which he claimed led to his departure occurred as claimed. He gave a substantially consistent account of the incident to the Tribunal at the hearing. He also submitted statements from his brother, mother and wife consistent with the account he gave. Regarding his return visits to Iraq, he acknowledged that he returned on five occasions, not just the three mentioned in the NOICC. He provided explanations for each return visit, and maintained that they were all for compelling family reasons and he took the risk involved to provide support and assistance to his family. The first trip back in November 2012 followed the death of his eldest son in August 2012, and he has provided a death certificate in support. He subsequently returned on 4 more occasions, each time to visit his wife, children and mother. He has submitted evidence in support of his wife’s poor health. The Tribunal finds that the applicant returned to Iraq on five, rather than three occasions, since he was granted protection as indicated in the NOICC. It has considered, and accepts, that the reason for his return visits on each occasion is to see his wife, children and mother. It accepts the first visit followed the death of the applicant’s son. While returning to the country from which an applicant has sought protection so soon after the grant of the visa can raise concerns about the credibility of the original claims, the Tribunal also accepts that it does not necessarily mean that those claims were false. It accepts that people will take risks to return to a country from which they fear harm, especially where there are family members remaining and care and responsibility obligations and that taking such a risk is not of itself inherently contradictory to the truthfulness of the claims made. In the present case, the applicant has maintained that his claim made in his application regarding the incident that led to his departure in 2011 was true and correct. He has given a substantially consistent account of the incident to the Tribunal at the hearing. His evidence was accepted as credible and authentic by the original delegate who made the decision to grant the visa. He has also submitted supporting statements from his brother, mother and wife regarding this incident. His explanations for his return visits to Iraq since the grant of his visa are reasonable and plausible. The Tribunal finds there is no sufficient basis, on the material before it, to conclude that his claims made in his original application about the reasons he departed Iraq and his fear of return at that time were incorrect.
However, given the findings above in respect of the issue of his citizenship status and that of his close family members, the Tribunal is satisfied that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
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 Regulations.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. 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.
The Tribunal discusses each of the prescribed circumstances below:
· the correct information
The correct information in the present case is that the applicant, his wife and children, and his brothers are Iraqi citizens and not stateless Bidoons. The Tribunal accepts that the applicant was born in Kuwait to Kuwaiti parents and came to Iraq with brother and mother in the early 1990’s. He has provided evidence of his father’s employment in Kuwait, parent’s marriage in Kuwait and documents of his primary school education in Kuwait to support this. He was given an ICSC soon after his arrival in Iraq. The applicant’s wife and children have Iraqi Personal ID cards, citizenship certificates and Iraqi passports. His brother [Mr E] also has an ICSC. The Tribunal finds, on the basis of the documentation before it and his oral evidence that the applicant obtained Iraqi citizenship after arrival in Iraq and was issued with an Iraqi personal ID card, of which a copy of the renewal made in 2008 has been provided to the Department and Tribunal.
· the content of the genuine document (if any)
This consideration is not relevant as there is no allegation of a non genuine document.
· 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 decision to grant the applicant a protection visa was made on the basis of a Protection Obligations Evaluation made by a delegate of the Minister on 10 April 2012 following an interview with the applicant. A copy of the decision record is before the Tribunal.[17] The Tribunal notes that the decision maker accepted the applicant’s claims about harm he experienced in Iraq including that he was employed as a [Occupation 1] and was shot at by militias and concluded, in light of supporting independent country information, that the essential and significant reason for the harm and threats upon the applicant and his family was his employment affiliation with the multinational forces in Iraq, his Sunni religion and his status as a Bidoon. The Tribunal observes the delegate took into consideration the applicant’s claim to be a stateless Bidoon in the context of consideration of his ability to access state protection and whether relocation was a reasonable option.
[17][File number]. Folios 93-98
The Tribunal has carefully considered the delegate’s findings and assessment as recorded in the decision record, including the country information cited. The information that he held an ICSC was before the delegate from the beginning of the application (the Tribunal notes the applicant provided the document at his entry interview itself). The delegate appears to have accepted his claim made then that despite having this document he was not eligible for citizenship, without further scrutiny. The Tribunal observes that the applicant maintains this position to date. In any event it is not clearly apparent that the decision to grant the visa was based wholly or even substantially on the incorrect information as to the applicant’s citizenship status. While the Tribunal accepts that the applicant’s claim to be a Kuwaiti born Bidoon and his claimed non- citizen status in Iraq did factor in the delegate’s consideration of the availability of state protection and relocation options, it also notes country information cited in the decision record indicating religious and ethnic minorities faced insecurity and discrimination and were at greater risk of being targeted for harm, particularly given the volatile situation in Iraq in this period. In the Tribunal’s view it is not apparent that the delegate would necessarily have made a different decision had the correct information been before her on the basis of the country situation in Iraq at that time. The Tribunal gives this factor significant weight against cancellation of the visa.
· the circumstances in which the non-compliance occurred
The Tribunal accepts that the applicant maintains that he is a Kuwaiti born Bidoon in Iraq and not treated as a full citizen and that he has maintained this position throughout his application and to date. The Tribunal has reached the conclusion, contrary to his claim, on all of the evidence now before it that he is an eligible Iraqi citizen. However despite the consequence of its finding that he gave incorrect information about his citizenship status in his application, the Tribunal accepts that at the time he made his application to be recognised as a refugee the applicant was genuinely in fear for his safety for reasons of the circumstances in which he departed Iraq. It accepts that he is a Kuwaiti born Bidoon, of Sunni religion, was [working with] the multinational forces in Iraq and faced a threat to his life as a result of an incident that occurred in the context of his employment and that he faced discrimination and insecurity in Iraq for these reasons which led him to leave. In these circumstances, it accepts that he provided the incorrect information in circumstances of holding a genuine subjective fear of return to Iraq. The Tribunal gives this factor some weight against cancellation of the visa.
· the present circumstances of the visa holder
The applicant has now been in Australia for almost 8 years. He has held consistent employment as a [Occupation 2] since 2013, and has lodged regular income tax assessments since that time. He provided evidence of his income tax assessments and work references attesting to his work ethic and good character in support. He sends money to his family in Iraq on a regular basis, and has sponsored an application for his wife and children to join him in Australia by lodging a Partner visa application which is pending. He attends a mosque at [Suburb 3] and provided a letter from the Chairman of the Mosque and community leader, [Sheik J], attesting to his involvement, commitment and good works in the community. The Tribunal accepts on the basis of this evidence that the applicant has lived in Australia for a substantial period of time, and has worked and contributed to the community and has also been a provider for his family in Iraq, and it considers that these factors weigh in favour of not cancelling the visa.
The fact that his family remain in Iraq awaiting reunion with him is, on the other hand, a factor which weighs stronger in the other direction, in that if the visa is cancelled, the family would not remain separated. Given the effect of the current Direction 80[18] under s499 of the Migration Act giving lowest priority to family, including spouse, applications where the sponsor arrived as an illegal maritime arrival, the pending Partner application may yet face a prolonged delay even if the cancellation is set aside.
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
[18] >
The information regarding his citizenship status and that of his family appears to have come to the Department’s attention on lodgement of his wife’s Partner visa application. The applicant has, throughout this cancellation process, insisted that he did not provide incorrect information. While on the one hand, his representatives have argued that this is his genuine and reasonably held belief, the Tribunal considers on the other hand that its conclusion that the identity documents and passports of his wife and children are genuine would be known to him and it is not so convinced of his genuine misconception of his citizenship status. The Tribunal considers this factor weighs in favour of the visa being cancelled.
· any other instances of non-compliance by the visa holder known to the Minister

There are no other known instances of non compliance by the applicant known to the Tribunal therefore this factor weighs in favour of the visa not being cancelled.
· the time that has elapsed since the non-compliance
The non compliance occurred over 7 years ago and in this time the applicant has been living lawfully in the community and looking forward to having his family join him here. The passage of significant time and integration into the community weighs in favour of not cancelling the visa.
· any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information that the applicant has breached the law in any way and accordingly this factor weighs in favour of the visa not being cancelled.
· any contribution made by the holder to the community.
The applicant has provided evidence that he has donated blood to the Red Cross and has positively assisted to mediate conflicts within his community. While the evidence of his community contributions is limited, there is no evidence of any adverse incidents or behaviour in respect of him and the Tribunal gives what he has done some weight towards the visa not being cancelled.
In addition to the above factors that the Tribunal is required to consider, it has also had regard to other matters set out in policy including mandatory legal consequences, non refoulement obligations and the hardship caused to him of cancellation of his visa.
With regard to mandatory legal consequences, the Tribunal observes that cancellation would result in the applicant being unlawful and subject to detention and in light of his manner of entry to Australia, there are provisions in the Act which prevent him from making a valid visa application without the Minister’s intervention (s46A of the Act). Although he would be barred from making further visa applications and liable to detention, it would appear that he can obtain a passport or other travel document and return to Iraq and be admitted to the country as he has clearly done previously. That said, the Tribunal acknowledges that he maintains he has a genuine and well-founded fear of persecution in Iraq on account of the claims made in his original protection visa application.
Given the Tribunal’s conclusions above that it is not satisfied on the basis of his return visits alone, or the incorrect information of his citizenship status, that all of his claims relating to past experiences and harm in Iraq and adverse profile made in his original protection application were incorrect, the Tribunal accepts that the applicant is Sunni and accepts that a delegate of the Minister was satisfied that he suffered harm in the past in Iraq on the basis of his employment position and ethnic and religious minority circumstances. The Tribunal also accepts that the applicant’s original claims were substantially based on an incident that occurred in the context of his job rather than his circumstances of claimed statelessness. The Tribunal acknowledges that there have been substantial developments in Iraq since the applicant’s initial departure in 2011. Available country information indicates the conflict with ISIL from 2014 to 2107 has had a significant impact in terms of sectarian tensions in Iraq and, despite the formal defeat of ISIL in December 2017, the impact is likely to continue in the forseeable future, with DFAT referring to Sunnis continuing to report of harassment from PMF groups and to a lesser extent the ISF.[19] The Tribunal accepts that sectarian tensions persist in Iraq, and that Sunnis continue to face a degree of harassment and discrimination.[20]
[19] DFAT Country Report on Iraq 9 October 2018
[20] DFAT Country Report on Iraq 9 October 2018 , para 3.35-3.37 ; As ISIS Is Driven From Iraq, Sunnis Remain Alienated, 26 October 2017, The New York Times >
Having carefully considered all of the above, the Tribunal considers the factors supporting not cancelling the visa in this case outweigh the factors that support cancelling it. In its assessment, the Tribunal has given substantial weight to the fact that the applicant provided his ICSC to the Department at the earliest point in time; that the decision to grant the visa was made on the basis of the applicant’s risk of harm on account of the threat made to his life due to his employment and association with multinational forces rather than his claimed statelessness; and given the country material before the delegate, the same decision may well have been made if the correct information about the applicant’s citizenship status was known. The Tribunal also gives weight to the circumstances of the applicant at the time of non compliance. It accepts that he was a person who held a genuine subjective fear of return to Iraq at that time. The Tribunal has also placed significant weight on the passage of 8 years since the non compliance, and the applicant’s positive actions and integration in the community in that time. Factors weighing in support of cancellation are that his family members remain in Iraq and therefore if the visa is cancelled the applicant would be able to reunite with his family sooner. The applicant has to date maintained his position that he is not an Iraqi citizen and did not provide incorrect information, in spite of the weight of evidence that suggests otherwise, including his wife and children’s documentation which they have submitted in their own visa application. Apart from this however, there is no other information before the Tribunal to indicate the applicant has breached the law in Australia or otherwise not complied to support the cancellation of the visa.
Ultimately after carefully weighing all of the above, the Tribunal considers the factors in favour of not cancelling outweigh those in favor of cancelling and the Tribunal concludes the visa should not be cancelled.
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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Meena Sripathy
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.

December, p.22 <

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1831526 (Refugee) [2019] AATA 5963

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Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

[2019] AATA 5963

26 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies