1833543 (Refugee)

1833543 (Refugee) [2021] AATA 2450 (12 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1833543
COUNTRY OF REFERENCE:                   Iraq
MEMBER:John Cipolla
DATE:12 May 2021
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 12 May 2021 at 8.21am

CATCHWORDS
REFUGEE – protection visa – cancellation – incorrect information – Federal Circuit Court remittal – stateless Arab Iraq – Iranian ancestry – expelled to Iran in 1980 – Iraqi identity card and passport fraudulently obtained – Australian citizen wife and children – best interests of children – no non-compliance – discretionary factors favour non-cancellation – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101-107, 109(1)
Migration Regulations 1994, Schedule 2
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 dependants.
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 and Border Protection 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 delegate formed a view that the applicant had provided incorrect information in his protection visa application that he was stateless and concluded that the applicant was in fact an Iraqi citizen. 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 matter was dealt with by a differently constituted Member of the AAT in 2016. That Member in a decision made in November 2016 affirmed the decision of the Department, finding that the applicant was not stateless as claimed and that he was in fact an Iraqi citizen. That Member also decided after considering prescribed grounds that the visa should be cancelled.
The applicant appealed that decision to the Federal Circuit Court of Australia, who determined that the previous Tribunal Member had made an error of law in the review. The basis of the error was that the Tribunal had relied on three key pieces of evidence to find that the applicant was in fact an Iraqi citizen and not stateless as claimed. That evidence was an Iraqi ID card which noted the applicant’s place of birth as being Karbala Iraq, a passport that noted the applicant’s place of birth as being Karbala Iraq and a marriage certificate, which the Tribunal erroneously stated listed the place of birth as Karbala Iraq, when it in fact did not list a place of birth. The Federal Circuit Court noted that the previously constituted Tribunal had relied upon a document to make key adverse findings (the marriage certificate) when there was no information to ground the adverse finding and that this constituted an error of law. The matter was consequently remitted back to the Tribunal to determine according to law.
In conducting this review the Tribunal has had regard to file [deleted] which contains the applicant’s initial interview on Christmas Island where he was detained when he arrived unlawfully by boat and his Subclass 866 application for protection and the accompanying statutory declaration encapsulating the applicant’s claims for protection. It also contains the delegate’s interview record and notes and the delegate’s decision record of March 2011, finding the applicant was owed protection obligations by Australia. The Tribunal has also had regard to Departmental file [deleted] which contained the Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa, his responses to the NOICC and the Departmental cancellation and a copy of the previously constituted Tribunal Member’s decision record and AAT file 1613313 which is the previously constituted Tribunal file. The Tribunal has also considered submissions made on behalf of the applicant pertaining to this review dated 11 March 2021 and annexures.
The applicant appeared before the Tribunal on 15 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian 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
In the interests of completeness, the Tribunal will set out the evidence that has been provided by the applicant at various points in time, with regard to his protection visa application, and with regard to the respective cancellation proceedings.
The Christmas Island interview
The applicant was interviewed by a Departmental officer on Christmas Island on 21 July 2010. The interview notes indicate that the interview commenced at 1:30pm and finished close to 4:30, an interview of close to 3 hours’ duration.
The interview notes indicate that the interview was conducted with the assistance of an interpreter of Arabic and the interview was recorded. The applicant was cautioned that any person found to “obstruct, hinder, deceive or mislead an officer in the course of their duty” was liable to penalties including imprisonment. The applicant provided his name and date of birth as being [date]. The applicant stated that he was born in Esfahan Iran. The applicant claimed that he was stateless. The applicant stated that his parents were deported from Iraq to Iran in the early 1980s. The applicant was required to provide details of addresses in which he had resided during the last 20 years. The applicant stated that from the time of his birth until 1992 he resided in Esfahan but could not remember the exact address. The applicant advised that between 1992 and 2004 the family lived in three addresses in Esfahan in Iran. The applicant advised that between 2004 and 2007 the family lived in Karbala in Iraq. The applicant advised that between 2007 and 2010 the family returned to Iran and once again resided in Esfahan. The applicant provided details of the addresses in Esfahan from 1992 up until the time of his departure from Iran in 2010.
The applicant was asked about any identity documents, passports, military or other papers which could prove his identity. The applicant stated that he held a green card when he was residing in Esfahan, but he claimed that the green card went missing when the family relocated to Iraq.
The applicant was asked about his education history and the applicant stated that between 1992 and 2001 he attended school in Esfahan Iran.
With regard to his employment history the applicant advised that from 2005 to 2006 he worked in a shop in Karbala in Iraq, that from 2007 to 2009 he worked illegally for a [business] in Esfahan and was involved in [tasks]. From 2009 until 2010 the applicant worked [in another business] in Esfahan for a period of six months until his departure.
The applicant stated that he was a Shia Muslim and that he was from the Iraqi Arabic ethnic group.
The applicant provided details of his father and his mother noting that at the time of the interview in 2010 they were both resident in Esfahan as were his [siblings].
The applicant was asked why he left his country of nationality. The applicant advised that with regard to Iran “I didn’t have citizenship I have green card and they were targeting us because of the work, and we were deprived of our human rights. There was racism over there sometimes they used to call us ‘Arab Sadaam.’ After the fall, let’s go back to Iraq, we went back to Iraq in 2004 and lived there for a while, my father attempted to obtain citizenship he was advised that there was no record for you in the registry. We stayed for a while the community didn’t respect us, we were called ‘Iranian Incomers,’ we didn’t have documents, we didn’t have citizenship so we had difficult life and hardship. Over there anywhere you go you are asked to present citizenship ID which we did not have. My father spoke to a solicitor in order to help him get his Iraqi citizenship following enquiries he was advised there are no records of you. The circumstances were worse than Iran. My father said I don’t want to risk your life here, let’s go back to [Iran] as a result of that we returned to Iran to live. In Iran we did not have permission to work and worked illegally and hiding from officials. While we are at work, if any government official turns up we have to hide. It was difficult to earn income, I didn’t have any future over there – cannot get married, I realised my life was in danger, didn’t have regular work or job. To rent a house you need citizenship docs. When you enquire with the government and say you were born in Iran the answer will be that your mother and father do not have citizenship so I had no future over there. I borrowed money to finance my travel so I would be able to build my future.”
Departmental assessment of applicant’s 866 protection visa application
After the preliminary interview on Christmas Island the applicant was assessed as eligible to lodge an application for refugee status assessment with the Department. The applicant was provided with access to a representative to assist in this process. The applicant completed the relevant form C pertaining to the 866 visa application. The applicant provided details of addresses in which he had resided for 12 months or more during the last 10 years. The applicant noted that from 1998 to 2002 he resided in Esfahan. The applicant noted that between 2002 and 2004 he resided in Esfahan. The applicant noted that between 2004 and 2007 he resided in Karbala in Iraq. The applicant noted that from 2007 to 2010 he resided in Esfahan Iran. The applicant provided details of his education history from 1992 through to 2001 noting that all of his education occurred in Esfahan. The applicant provided details of his employment noting that during the period he was in Iraq between 2004 and 2007 he worked for part of that time in a [shop] in Karbala. The applicant indicated that between 2007 and 2010 he worked in a range of [jobs]. The applicant provided details of how he left Iran, obtaining a false Iraqi passport from a contact in Esfahan by the name of [name]. The applicant noted that this document had been confiscated by a smuggler in Indonesia. The applicant noted that his family resided in Esfahan at the time of lodging his Subclass 866 protection visa and that no one was resident in Iraq at that point in time.
The applicant provided a statutory declaration in support of his claims for protection which is dated 13 August 2010. The applicant stated that his father told him that in or around 1980 the applicant’s father and mother were deported from Iraq and stripped of their Iraqi citizenship by Saddam Hussein’s regime. The applicant was told by his father that they were deported by the regime because his maternal grandmother was Iranian. The applicant stated that he did not know whether his parents had any identity documents proving they were Iraqi citizens and that they did not have any Iraqi identity documents with them now. The applicant stated that his parents were taken to the border of Iran and Iraq and left Iraq without any belongings. The applicant stated that he was not sure of what documentation his parents received from the Iranian authorities at that time. The applicant stated that when his parents crossed the border they travelled to Esfahan with many other Shia families from Iraq. The applicant stated that his father found work [but] had to work illegally. The applicant stated that when his parents were deported to Iran he was not sure whether they were issued with a green card but the applicant stated that from the time he was born his mother had a green card from the Iranian authorities which had his name on it. The applicant also stated that he was issued with a green card of his own at birth. The applicant stated that his parents never received a white card. The applicant stated that with a green card a person had no rights to work, to buy property, to go to hospital without paying high fees or to marry an Iranian.
In the statutory declaration the applicant stated that he was born and raised in Esfahan. The applicant stated that he attended public schools and that at the time of providing the statutory declaration people with green cards found it difficult to attend public schools. The applicant stated he moved schools a number of times because his family moved addresses. The applicant claimed that he was bullied and teased at school because of his Arabic ethnicity. The applicant stated that at home his parents spoke to him and his siblings in Arabic. The applicant advised that he learnt Persian from school and from mixing with other children. The applicant advised that he left school at around age [and] obtained illegal work [in] the industrial quarter of Esfahan. The applicant stated that he worked long hours for little money. The applicant claimed he only remained in this job for two years because of the poor pay but after leaving the job he found it very difficult to obtain further employment. The applicant stated that his family could not use government-based health facilities and if a family member had a medical issue they had to pay to see a private doctor. The applicant stated that whilst in Iran he was not able to move about freely.
The applicant stated that due to the prevailing conditions in Iran his father decided in 2004, after the fall of Saddam Hussein, that the family would enter Iraq and that at this time there was no real border crossing between the two countries and because the family spoke Arabic they were let across the border. The applicant stated that the family went to Karbala where they rented a house and the applicant stated that he eventually found work in a [shop] in Karbala. The applicant advised that he lost his green card in Iraq in around 2004. The applicant stated that it was scary living in Iraq because of the many checkpoints and document checks. The applicant advised in his statutory declaration that during the period the family were in Iraq, his father employed a lawyer to obtain the family’s Iraqi citizenship. The lawyer made attempts to obtain proof of citizenship. The lawyer eventually told the applicant’s father that he would not be able to assist because there was no record of the applicant’s father’s name confirming him as an Iraqi citizen. The applicant advised that as a consequence, the family returned to Iran, in 2007. The applicant stated that the family returned to Iran with the assistance of a smuggler and the applicant advised that he worked illegally in a number of jobs. The applicant stated that he attempted to get a replacement green card in Esfahan without success. The applicant stated that his life upon returning to Iran was difficult as he could not move freely, find work, marry an Iranian woman or obtain healthcare or receive an education. The applicant then provided details of how he left Iran travelling to Kuala Lumpur then to Indonesia and then by boat to Australia before being intercepted by the Australian Navy and taken to Christmas Island. The applicant stated that he was afraid to return to Iran because he believes that he would be persecuted because of his Arab ethnicity and having lived illegally in Iran and having left the country illegally. The applicant stated that he did not believe that he could reside safely anywhere in Iran and that he had no right to return to Iraq because he was stateless and because he lived in Iran for an extended period of time and would be perceived to be Iranian.
The applicant also completed the form B in support of his Subclass 866 protection visa application along with the personal particulars for character assessment, the form 80. The applicant noted in these forms that he was born in Esfahan Iran and that he was stateless. The applicant also provided evidence of his education and work history in Esfahan.
The applicant underwent a refugee status assessment interview conducted by a delegate of the Department on Christmas Island on 16 August 2010. This interview was conducted with the assistance of an interpreter of Arabic. During the interview the applicant advised that he was born on [date] in Esfahan Iran. The applicant advised that at the time of the interview his parents and [siblings] were all resident in Esfahan Iran. The applicant was questioned about the family relocating from Iran to Iraq in 2004. The applicant stated that after the fall of Saddam Hussein the applicant’s parents decided to re-enter Iraq. The applicant advised that his father made attempts to obtain Iraqi citizenship and hired a solicitor to this end. The applicant stated that as there were no records pertaining to his father held by the Iraqi authorities the attempt to acquire Iraqi citizenship failed. The applicant stated that after a number of years, due to the difficulties of life in Iraq, the family returned to Iran. The delegate asked the applicant whether anything happened to his parents or family during the extended period that they resided in Iran. The applicant stated he could not get treatment in a public hospital, green card holders were not treated the same as other Iranians, pharmaceuticals and medical treatment were expensive and had to be paid for, there was limited work, poor wages and poor living conditions. The family also experienced racism and limited educational opportunities. The interview with the delegate was conducted over a period of two hours.
On 30 March 2011 the officer that interviewed the applicant on Christmas Island determined that the applicant was owed protection obligations in a refugee status assessment decision. The Tribunal has given consideration to this decision record. The delegate found that “the claimant has provided credible information concerning his life in Iran from the time of his birth until his departure with his family in 2004. He also provided details of the relocation with his family to Iraq for the period 2004 to 2007 and the difficulties of life in Iraq. I accept that the claimant’s parents were deported from Iraq in approximately 1980 during the time of Saddam Hussein’s regime and as a result were deprived of their Iraqi citizenship and any documents that they may have held to verify their Iraqi citizenship were destroyed. I accept that the claimant’s family were unsuccessful in acquiring their Iraqi citizenship despite having made exhaustive attempts while they were residing in Iraq, with the assistance of a lawyer, to locate any records of their identity. I accept that the claimant is a stateless person.”
The delegate went on to find that “the claimant has expressed his knowledge of the situations both in Iran and in Iraq. He has provided sufficient detail in the personal accounts of his circumstances and what has happened to him to demonstrate that he has a well-founded fear of persecution on the grounds of not being recognised as a citizen in either Iran or Iraq, thereby being a stateless person. I am satisfied that he faces a real chance of being persecuted should [he] be returned to Iran in the foreseeable future.” The delegate went on to determine that effective state protection was not available to the applicant in either Iran or Iraq and consequently that the applicant was owed protection obligations.
The delegate concluded that “having carefully considered the claimant’s account in terms of detail, internal consistency and credibility in relation to country information, I am satisfied that the claimant’s fear of persecution as defined under the Refugees Convention is well founded.”
Notice of Intention to Consider Cancellation (NOICC)

The applicant was issued with a NOICC dated 23 May 2016. The NOICC made reference to the applicant’s Subclass 866 visa application and form 80 character assessment submitted in support of his protection visa application. The notice also made reference to the applicant’s statutory declaration dated 13 August 2010 encapsulating the applicant’s claims for protection. The notice made reference to the applicant’s claims about being a stateless Arab and about a fear of returning to both Iran and Iraq. The notice indicated that based on Departmental movement records, on 16 November 2011, the applicant departed Australia for four months, with subsequent offshore trips in 2013 and 2014. The NOICC noted that since the applicant had been granted a protection visa on 8 June 2011, he had been absent from Australia for 10 months as at the date of the NOICC in May 2016. The NOICC particularised possible non-compliance with s.101 of the Act which requires that a non-citizen must fill in his or her application form for a visa in such a way that no incorrect answers are given.
The applicant provided a comprehensive response to the NOICC through a migration agent from the Australia Migration Centre dated 10 June 2016. The submission noted the following:
the applicant submits that all information provided in filling up the visa application was correct at the time of application and at the time of decision; that no incorrect answers were given or provided.
The applicant was a stateless person and his place of birth is Asfahan, Iran. His parents were stripped of Iraqi citizenship and deported to Iraq around 1980. This fact is supported by the documents provided at the time of application and decision. Furthermore, we refer you to attached families Iranian card, his mother’s Iranian card [and] his parent’s marriage certificate. It is obvious to submit that the applicant’s parents got married in Iran in [1981].
The Iranians family card attached, contains the whole members of the applicant’s family; his name is the second in the children. The card is strong evidence that the applicant was in Iran during his birth and his other siblings birth. It is unlogical (sic) for him to be born in Iraq in [year]. The applicant further submitted his sisters Iranian ID as she is still living in Iran as a stateless [person]. Her ID shows her birthplace to be Asfahan.
The applicant submits that he met 102(b) that no incorrect answers were given in his passenger card. The applicant submits that he meets section 105.
… The applicant was stateless at the time of the application and similarly at the time of his visa decision. There was no incorrect information provided to the Department and yet there are no changes in his circumstances; the following is important information to support his claims:
·prior to his departure from Australia, his father obtained a personal Iraqi ID. This ID cannot be issued unless the place of birth is to be Iraq. Therefore, the issuer authorities stated the place of birth to be Karbala. It is noted this ID cannot be issued unless the applicant is present or he/she applies directly from Iraqi diplomatic missions overseas. The applicant did neither; therefore, as told by his father upon his arrival on/or after [date]/11/2011 that the ID was obtained by using contacts and paying some bribe.
·The applicants ID was issued on [date]/07/2011, more than three months from his presence in Iraq which make it very credible that the applicant was not in Iraq during the process of his ID issuing.
·Upon his arrival in Iraq, the applicant used the ID with help of contacts to obtain an Iraqi passport; he was successful.
·The applicant believes that the documents were bogus and yet he was concerned to amend any information as this would lead him to be subjected to criterion 4020.
·It is noted by the Department that passports issued based on bogus documents are deemed to be bogus; therefore, the applicant could not provide this information to the Department unless it was found out by them.
·The applicant travelled to Iran not to stay neither he used his name known by the authorities; therefore, he was only a temporary visitor for the purpose of getting married. The marriage is over, due to complications in immigration process.
·The attached medical document of the applicant’s mother is supporting evidence of his compelling reasons to visit his mother on his other trips.
·During his stay in Iraq the applicant submitted that he was subject to significant harm due to the fact that he was perceived as an Iranian; the applicant speaks Persian and his Arabic is broken.
·The applicant was aware that if he came to Iranians authorities attention, he would be at risk for the reason that he escaped the country illegally. However, using different name and later Iraqi passport did not bring him to their attention.
In light of the above discussion, the applicant would be at risk should he return to Iraq or Iran and yet if he survived in the past, there would be no assurance that he would not face serious or significant harm as defined in the immigration law.
Request for International Treaties Obligation Assessment
On 11 July 2016 the Department made a request for an International Treaties Obligation Assessment (ITOA). The Tribunal has had regard to this request. By way of background in the request the delegate noted that the applicant in his protection visa application stated that he fled Iran as he was a stateless Arab who had no rights in that country and that he could not go to Iraq because he would be perceived to be Iranian. The request noted that the applicant was granted a protection visa on 8 June 2011 on the basis of the adverse risk profile for Iran. The request notes that on “[date] May 2013 the visa holder arrived in Australia at Sydney International Airport and he was interviewed by an Immigration Inspector. The visa holder stated that he was visiting his family in Iraq. A baggage examination was undertaken, and the visa holder was found in possession of an Iraqi passport in the name of [Name 1], listing the place of birth of the holder as Karbala Iraq, and the place of issue as Karbolaa (Karbala).”
The request notes that based on Departmental movement records the applicant departed Australia [in] November 2011 for four months and that he made subsequent trips overseas in 2013 and 2014 for three months and three and a half months respectively. The applicant noted in his inward passenger arrival cards that he spent most of his time abroad in Iraq.
The delegate that made the request from the visa cancellation unit in New South Wales did not interview the applicant. The request document noted that the applicant responded to the NOICC on 10 June 2016. In his response the applicant is recorded to have stated the following. The applicant submitted that his Iraqi identity card was fraudulently obtained by his father and that it was a bogus document which did not accurately reflect his true place of birth. The applicant stated that the identity card was issued in Karbala Iraq when the applicant was still in Australia and as such according to the applicant this fact provided corroborative evidence that the card had been fraudulently obtained. The applicant submitted that he then used the identity card to fraudulently obtain an Iraqi passport whilst in Iraq. The applicant stated that his parents were married in Iran in 1981 and due to the ongoing Iran–Iraq war they could not have returned to Iraq for his birth in [year]. The applicant stated that his sister was born in Iran as evidenced by the Iranian family card and his sister’s Iranian identity card showing her place of birth as Iran. The applicant submitted that he did not advise the Department about the bogus passport for fear of being subjected to Public Interest Criterion 4020. The applicant submitted that he travelled to Iran using an Iraqi passport not known to the Iranian authorities in order to get married and that he had a compelling reason to travel to Iraq as his mother was sick and was admitted to hospital for surgery.
On 19 July 2016 the applicant was advised that the Department had commenced an ITOA to assist the Department in its consideration of the cancellation of the applicant’s visa. As part of the process the applicant was invited to provide specific information. The applicant was invited to provide colour copies of any Iraqi or Iranian travel documents held in his possession. He was asked why he had returned to Iraq three times since the grant of his protection visa and the reasons for entering Iran during those trips. The letter noted that the applicant had made a number of entries into Iran.
The letter noted that medical documents submitted by the applicant and provided to the Department as evidence to corroborate the need to return to Iraq showed the applicant’s mother was treated in Karbala Iraq. The applicant was also asked what significant harm he had been subjected to in both Iraq and Iran on these three visits. The Department also questioned Iranian ID documents submitted to support his assertions that he was born in Iran. The Department stated that the fact that the applicant possessed an Iraqi passport was strong evidence that he was an Iraqi citizen. The delegate also made reference in this letter to the prevailing country conditions in Iraq suggesting that internal relocation may be available to Shia to Southern Iraq which may be practical and reasonable.
On 29 July 2016 the applicant provided a response to the questions asked as part of the ITOA assessment. The response was provided by the applicant’s migration agent Australian Migration Centre.
The applicant provided the following response.
The applicant provided his passports and travel documents that were used in his entry and exits from Iraq.
In response to the reasons for the applicant returning to Iraq on three occasions after the grant of his protection visa the response indicated that “the applicant used his Australian issued titre de voyage travel document once during his first trip to Iraq. However, the applicant made the other two trips on his Iraqi passport. The Iraqi passport shows that the applicant travelled to Iran three times as his passport contains three Iranian stamps and visas. He departed Australia on [date]/11/2011 for 4 months upon his father’s advice to obtain the documents his father got issued for him. He subsequently applied for an Iraqi passport based on the documents which the applicant says are not legitimate. His other two trips 2013 and 2013–14 were due to his mother’s medical critical condition and the other to get married in Iran.”
In response to the question as to why the applicant travelled to Iran during his trips to Iraq the applicant stated that he was in a relationship with a woman from Iran and he had asked for her hand in marriage and he subsequently married her but the marriage did not last and is now over.
In response to why the applicant would return to countries where he had claimed he would be targeted if he returned there and from which he had sought protection in Australia, the applicant stated that:
his claims were genuine and yet when he went to Iran, he used an Iraqi passport which did not reflect his information as he was in Iran. In Iraq, he was subjected to significant harm during his visits but due to the reasons of his travel he was compelled to do so.
The delegate noted that in the entry interview and during the RSA/PV process the applicant stated that he resided in Karbala from 2004 until 2007. It is therefore reasonable to conclude that he returned to Karbala on his return trips to Iraq. The delegate also noted that according to stamps contained in his Iraqi passport it appears that he departed Iraqi on one occasion from Najaf Airport. These stamps also indicate that he crossed the border from Iraq into Iran at Zurbatiya/Mehran crossing. There is also a stamp that indicates that he departed Iraq on one occasion through Erbil International airport. Your departures/arrivals at these various entry/exit points in Iraq appears to indicate that he was able to travel around the country seemingly without incident.
The applicant says that although the information provided above is true in terms of movement but this does not deny that he was subjected to significant harm during his travel. Yet his persecution was not addressed by the authorities but by the militias and community at large. He says that his visits were not secure and he was exposed to significant harm as described by the immigration law. Further, his information provided at the time of application and decision was accurate and up-to-date.
I note that the medical documents relating to [his mother] indicated that she was treated in a hospital in Karbala Iraq in addition it appears that [his mother] was in hospital in Iran from [November] 2011 until [February] 2012 this appears to be a lengthy period of time for a purported stateless person to be able to remain in hospital. Also, I note that he had claimed during the RSA process that your family had moved back to Iran from Iraq in 2007.
The applicant says that his family moved to Iran and returned back to Iraq after his father was able to get Iraqi documents. The relationship between Iran and Iraq is reasonable for people of both countries to move easily between the two countries. His mother was admitted to hospital for the specified period as the Iraqi health system agreed for her to stay receiving treatment. This is a matter of the Iraqi rules and beyond the applicant’s knowledge.
The delegate noted that in response to the NOICC it is stated that during his stay in Iraq he claimed that he was subject to significant harm as he was perceived to be Iranian. It is also stated that your Persian and Arabic is broken. “I note that all your interviews with the Department were conducted in Arabic and there is no evidence before me that you requested a Persian interpreter or that there were any difficulties in you understanding the Arabic interpreters. Therefore, it would be reasonable to conclude that you are fluent in Arabic and that it is your preferred language. Given this it could be considered unlikely that your language skills would be a reason for you being perceived to be Iranian.”
The applicant speaks broken Arabic; he does not read or write. He suggests that an independent Iraqi linguist should examine his dialect to determine his accent. He says that his broken Arabic brings no doubt the speaker is of Persian origin. He says he speaks Persian fluently and it is his first language, but he was proud to speak Arabic even though it is not perfect.
Based on the information before the Department it could be considered that he claimed to be a stateless person from Iran, when he was in fact an Iraqi citizen, in order to enhance his chances of obtaining a protection visa. His travel back to Iraq using an Iraqi passport would appear to support this.
The applicant stresses that he did not claim to be stateless to enhance his chances of obtaining a protection visa; it was the fact that he was stateless at the time of application and at the time of decision. He was never an Iraqi citizen and his claims were true and correct.
The applicant was asked what significant harm he was subjected to during his stay in Iraq. The applicant stated that “while the applicant was in Iraq, he went to visit some holy places. He was confronted by some people who are against Iran. When he spoke to them in Arabic, they figured out that his accent is Persian; hence, they abused him and he received harassment. He says that if he did not avoid them, he would be seriously harmed. He says that he could not approach any authority since his accent appears to be Persian. Further, while he applied for the passport using the documents obtained by his father, he was insulted and perceived as a non-Iraqi person. He says his dignity was harmed when the officer laughed at him and mocked him. Moreover, he could not maintain any relationship with Iraqis as he was perceived to be Iranian.
The applicant was asked why his mother was receiving medical treatment in Iraq if she resided in Iran and where his family, namely his parents and siblings currently resided. The applicant advised that his mother was being treated in Iraq and that the family were able to move between the two countries depending on the security situation in Iraq. At the time of responding to these questions the applicant advised that his parents were resident in Iraq and only one sister was living in Iran.
In conclusion to the questions in response to the ITOA the applicant advised that he did not provide wrong or misleading information to the Department. The applicant advised that his claims for protection were true and correct. In addition, the applicant voluntarily provided his Iraqi passport to web portal immigration officers. The applicant did not provide false or misleading information on his incoming passenger cards. The applicant holds the belief that his Iraqi passport was issued based on the provision of a bogus identity document secured by his father. The applicant also believed that he would face persecution in both Iran and Iraq with the applicant claiming that his accent was an important trigger for militias to harm him in Iraq and a community perception that he is of Iranian ethnicity. The applicant submitted that he was stateless at the time of application and at the time of the protection decision and that the information that he provided to the Department was true and correct in every aspect and that he met the relevant criteria to engage Australia’s protection obligations and that he was still owed protection based on his claims.
The ITOA concluded that the applicant was an Iraqi citizen and that his Arabic ethnicity would not cause the applicant to be persecuted in Iraq. The assessment concluded that the applicant, on the basis of the evidence, would not be considered to be stateless.
The AAT decision of 9 December 2016
The previously constituted Tribunal conducted a review hearing on 25 November 2016. The Tribunal during the course of the hearing, made reference to the Iraqi identity card, the Iraqi passport and the marriage certificate pertaining to the applicant which showed the applicant’s place of birth to be Karbala Iraq and not Esfahan Iran. To rebut this the applicant stated that he had provided with his protection visa application green cards to show that his place of birth was in fact Iran.
When the applicant was questioned by the previous Tribunal about the Iraqi passport and the Iraqi identity card “the applicant stated that they were both obtained through bribery and that this was not in his control. He reiterated that the ID card was obtained when he was in Australia and not in Iraq and accordingly it must be fraudulent. He debated with the Tribunal how he could possibly obtain a genuine Iraqi ID card when he was in Australia at the time. He stated that he was telling the truth and that all those three documents do not contain accurate information. He said his father paid a bribe and obtained the ID card and that is all the information he has. The Tribunal asked the applicant if he knew how the passport was obtained and he stated that the passport was obtained on the basis of the Iraqi identity card, and consequently, the passport also contained incorrect information.” The applicant also made reference to documents that he had provided in support of his protection visa application indicative of the fact that he was born and educated in Iran.
The previous Tribunal also questioned the applicant about whether he experienced any harm when he returned to Iran and Iraq. The applicant stated in response that he “felt danger all the time.” The applicant could not refer to any specific incidents of harm in Iraq stating that he was not in Iraq for a long period of time and would have been in danger if he had been caught. The applicant also gave evidence that speaking in broken Arabic was problematic.

The previous Tribunal makes reference to submissions that were dated 14 October 2016. That decision record cites those submissions in which the following points were made:
The applicant’s Iraqi identity card was fraudulently obtained by his father and that it is a bogus document which does not accurately reflect his true place of birth. The applicant used fraudulent identity card to obtain an Iraqi passport whilst he was in Iraq. However, the delegate was not satisfied that this was a bogus document because according to departmental information, Iraqi passports in particular the “A” series passport is of an international standard and compliant with good security features. The applicant was in Australia when the identity card was issued and therefore it must be bogus. Information can be obtained from the Iraqi authorities that personal IDs are only issued when the applicant is present before an authorised officer. The card was issued in Iraq while the applicant was in Australia.
The applicant was issued with an Iraqi passport under a different identity to travel to Iraq to get married without the Iranian authorities detecting his actual identity. The delegate gave little weight to this claim as both passports have the same forenames and date of birth. The Iranian marriage certificate shows that the applicant presented his Australian Titre de Voyage for registering his marriage. This indicates that the applicant did not surreptitiously enter Iran using false identity that openly engaged with the Iranian authorities to obtain visas using his Iraqi passport and get married using his Australian Titre de Voyage. Marriage certificates for foreigners in Iran are issued by private religious parties and the government has nothing to do with their issuance.
The applicant went to Iraq to see his ill mother who was admitted to hospital for surgery for three months. The applicant’s parents were married in Iran in 1981 and as such it is illogical that he could have been born in Iraq in [year], given that the Iran-Iraq war was ongoing. The applicant’s Iranian family card and his sister’s Iranian identity card strongly suggest that he was born in Iran.
The applicant maintains that he has completed the visa application form in such a way that all questions were answered and that no incorrect answers were given or provided. The applicant has complied with s.101(b). The applicant is a credible witness in the delegate had erred in her assessment and assumptions. The applicant was born in Iran as a stateless person whose parents married in Iran after being expelled from Iraq where their Iraqi citizenships were stripped off. The applicant grew up and attended his schooling in Iran. His mother tongue language is Persian and he speaks broken Iraqi Arabic. There is no evidence to confirm that he was physically born in Iraq.
The previous Tribunal considered the evidence as a whole and the Tribunal was satisfied that contrary to the applicant’s claims for protection, the evidence indicated that the applicant was not stateless and that he is in fact an Iraqi national. To ground these findings the previous Tribunal relied on the Iraqi ID card, the Iraqi passport, and the marriage certificate issued in Iran showing that the applicant was born in Karbala Iraq. As has been noted this decision was remitted back to the Tribunal as a consequence of error of law, on the basis that the previous Tribunal relied on the marriage certificate, amongst other evidence to ground these findings. The court noted that the marriage certificate did not contain a place of birth and thus the previous Tribunal relied on information that was not before them to make findings.
Pre-hearing submission 11 March 2021
The Tribunal received a pre-hearing submission from the applicant’s representative dated 11 March 2021. The submission is replicated in full below:
[The applicant]’s Protection Visa, subclass 866, was cancelled by the Department of Home Affairs (the Department) on 19 August 2016, pursuant to section 109 of the Migration Act 1958 (the Act). A valid application for review of that decision was made and on 9 December 2016 that decision was affirmed by the Administrative Appeals Tribunal (AAT). Following a successful judicial review application the matter was remitted to the AAT on 1 November 2018. We make these submissions in anticipation of the hearing of the review application on 18 March 2021.
For the purposes of this submission we address Migration Regulation 2.41, which provides:
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a)the correct information;
(b)the content of the genuine document (if any);
(c)     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;
(d)the circumstances in which the non-compliance occurred;
(e)the present circumstances of the visa holder;
(f)     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g)     any other instances of non-compliance by the visa holder known to the Minister;
(h)the time that has elapsed since the non-compliance;
(j)    any breaches of the law since the non-compliance and the seriousness of those breaches;
(k)any contribution made by the holder to the community.
Submissions previously made to the Department and the AAT are on file and our client continues to rely on those submissions. The applicant’s spouse [will] provide oral evidence at the hearing in regard to the negative impact the decision to cancel the applicant’s protection visa has had on both her and their children.
By way of summary, we submit that there are two principal avenues of inquiry in this matter: (i) did the applicant provide incorrect information in his Protection Visa Application (PVA) in breach of section 101of the Act; and (ii) even if he did, are there circumstances prescribed by Regulation 2.41 that provide reason for not proceeding with cancellation?
Did the applicant provide incorrect information?
In both the cancellation process conducted by the Department and the review process conducted by the AAT, the decision-makers concluded that the applicant had provided incorrect information in his Protection visa application by claiming he was a stateless Arab born in Iran. The underlying reasons for that conclusion are the applicants travel to Iran and Iraq in 2011, 2013 and 2014 following the grant of his Protection visa, and his possession of an Iraqi passport, Iraqi ID Card and a Marriage Certificate. The decision makers did not accept explanations that, when the applicant entered Australia and applied for a Protection visa the information he provided was true and correct, and unbeknown to the applicant, his father had paid a bribe to obtain Iraqi ID Cards for himself and other family members, including the applicant. The applicant was then able to obtain an Iraqi passport on the basis of holding an Iraqi ID Card.
The applicant insists that both his parents were born in Iraq and were expelled to Iran, having their Iraqi citizenship stripped from them, prior to his birth. Evidence of his parents’ marriage in Iran in 1981 has previously been submitted, together with the applicant’s Iranian family card and his sister’s Iranian identity card which strongly suggest that he was born in Iran and was born stateless as claimed.
The Notice of Intention to Consider Cancellation of the visa included a statement that the applicant’s Iranian marriage certificate indicated that he was born in Iraq. However, the applicant had provided a copy of the marriage certificate and a translation demonstrating that the certificate did not contain any such information. The error was taken up by the Tribunal member, with the result being that the Tribunal acted upon information that was not before it: there was no place of birth in the marriage certificate. The other two documents, the Iraqi passport and ID Card, the applicant instructs were obtained unlawfully through bribery, and in those circumstances there is not a strong reason to believe that the contents of the documents are necessarily or likely to be true, and we submit the applicant’s possession of an Iraqi passport and ID Card are not conclusive evidence that prior to the grant of his Protection visa he was an Iraqi citizen and not stateless as claimed.
Return trips to Iran and Iraq: The Tribunal was previously satisfied that the fact that the applicant returned to Iran after being granted a protection visa is strong evidence undermining his protection claims of fearing harm of returning to Iran.
We refer to a decision of the Migration and Refugee Division of the AAT (Refugee) [2016] AATA 3390 (3 March 2016)).¹ In that case, the decision of Member Sue Raymond considered circumstances somewhat similar to [the applicant].
The Applicant in this matter had his Protection visa cancelled under s 109(1) of the Act because of an alleged failure to comply with s 101(b). This alleged contravention was raised on the basis of his return to Iraq for a substantial period of time following the grant of the Protection visa. The Applicant in this matter was granted a Protection visa in June 2009. He returned to Iraq in September 2009, where he remained until February 2013.
Throughout this period, he lived and worked in Erbil, and travelled to Baghdad to visit his parents once every two weeks. He only returned to Australia for a brief period in March 2011. The Tribunal set aside the Department’s decision to cancel the Protection visa after finding that the discretionary power to cancel the Applicant’s visa did not arise. It did not arise because the Tribunal was not positively satisfied that, at the time of his Protection visa application and decision, the applicant had provided incorrect answers.
Whilst we acknowledge that each matter is determined on the basis of the individual facts before the decision maker, importantly, for present purposes, we refer to paragraphs 31, 37 and 44 of this decision. They relevantly state (emphasis added):
31. The Tribunal is mindful that in cancellation cases, the existence of facts which ground the exercise of the statutory power, the obligation to establish those facts is on the Minister (or on review, the Tribunal). There is no obligation on the visa holder to establish that the visa should not be cancelled.       The Tribunal is also mindful that it must decide whether there was non-compliance in the way described in the notice. Having regard to the terms of the notice, is the Tribunal satisfied that there are no incorrect answers given or provided on the visa application form? In the present case the delegate has alleged that the applicant incorrectly answered questions 40 to 45 and 67 of his protection visa application form 866C. At hearing the applicant reiterated that the answers were correct.
[…]
37. However, in this case specific answers were nominated in the NOICC. However, there is no readily identifiable incorrect fact or circumstance. In short, there is no evidence of factual incorrectness underpinning the asserted fear of the applicant in his protection visa application form. The incorrectness is essentially as to the applicant’s fear of persecution in Iraq and is asserted by reference to certain actions of the applicant returning to Iraq and his conduct in that country. Essentially, to find that there is non-compliance the Tribunal would need to find that the applicant did not hold the requisite fear at the time of lodgment of his protection visa application.
[…]
44. In order to affirm the decision the Tribunal must be positively satisfied of the incorrectness of the answers to questions nominated in the NOICC. The Tribunal is not so satisfied. The evidence is not such that it can be established positively that the answers were incorrect at time of lodgment of the protection visa application.
It is for the Department to prove that the applicant provided misleading information, not for our client to disprove the Department’s allegations which are based on conduct that occurred after the allegedly false statements were initially made. The evidence as presented by the Department and refuted by the applicant does not demonstrate positively or with any degree of certainty that he provided incorrect information in his Protection visa application at the time it was made or at any point up until the time of decision.
The applicant instructs that he returned to Iran and Iraq because of a compelling need to visit his mother and other family members and for the purpose of getting married in Iran, and he was prepared to ignore his fears and put his personal safety and life at risk. We reiterate that the decision to voluntarily return to Iran and Iraq does not by necessity mean that he provided incorrect information prior to the grant of his Protection visa about his fears or the reasons why he believed he would be at risk of harm in both countries.
Regardless of whether or not the applicant still has a fear of returning to Iran and Iraq, there is nothing in the cancellation decision record to suggest that he did not hold the requisite fear at the time of application and at the time of decision. Taking into account all of the above, it becomes clear that seeking to cancel the applicant’s Protection visa on the basis of his travel to Iran and Iraq is unjustified.
The applicant continues to claim he was a stateless Arab born in Iran throughout the processing of his Protection visa application and looks forward to discussing the issue at the hearing.
Are there circumstances that provide reason for not proceeding with cancellation?
In the event that the Tribunal determines the applicant is not stateless, we submit that there are a number of circumstances that fall within the ambit of Reg.2.41 that weigh heavily in favour of the applicant’s visa not being cancelled.
(e) the present circumstances of the visa holder
The applicant has been in Australia for almost eleven years and has a spouse and two children in Australia. His spouse is an Australian citizen and he is the father of their two Australian citizen [children]. The applicant and his spouse provide each other with companionship and support and jointly care their two young dependent children whom require their parent’s physical and emotional support. Their current financial circumstances are precarious and will be further stretched if the applicant was not able to regain his Protection visa and had to leave Australia. The applicant is an important and integral part of the family unit of his spouse and children and plays an intrinsic role in the care and of their two dependent children both of whom are Australian citizens.
Aside from the allegation that the applicant provided incorrect information in his Protection visa application, he has been a law-compliant resident since his arrival in Australia
Are there any other factors that should be considered?
As mentioned above, the applicant has an Australian citizen child. The PAM3 addresses Australia’s obligations under the Convention on the Rights of the Child (CROC):
23. About assessing the best interests of a child
Article 3 (Best interests of the child) - of the Convention on the Rights of the Child provides:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
The best interests of the child must be treated as 'a' (and not 'the') primary consideration in exercising any discretionary power under the Act.
Importantly, because Article 3 is worded "all actions concerning children", officers should assess the best interests of a child in relation to:
decisions directly relating to a child and
decisions about a family member, primary care giver or other person who has claimed responsibility for the child, even if the decision does not directly relate to the child. This is because any decision about a parent or primary care giver will affect the child. … [emphasis added]
24. When to assess the best interests of the child
24.1 Discretionary powers
Officers must consider a child's best interests when exercising discretionary powers
…
25. How to assess the best interests of the child
Whilst there are no strict criteria by which the best interests of a child could be considered, the principles in the CROC can inform what is meant by a child's 'best interests'. As Australia is a party to the CROC, those principles should be applied when assessing the child's best interests.
…
When exercising a discretionary power affecting a family member, primary care giver or a person who has claimed responsibility for a child, the following factors should be considered:
the nature of the relationship with the child
the duration of the relationship including the number and length of any separations and reason/s for the separation
·whether the child is an Australian citizen or permanent resident
·the likely effect on the child of any separation from the person including the family or other support available to the child if the child were to remain in Australia if the    person was removed to their country of citizenship
·the child's degree of integration into the Australian community, and by contrast the child's ability to enter, reside, adapt and integrate if the child were to return with that individual
·the views of the child should be taken into account and given due weight in accordance with the child's age, maturity and level of understanding
·any other factors which may be relevant to the particular case.
The applicant has lived with his spouse since their marriage and bonded with their two children since their birth. The applicant’s spouse will attend the hearing to describe her reliance on the applicant to share the care of their children and the consequences should the family be forcibly separated. We submit that separation from a primary attachment parent can create problems in childhood, adolescence and adult life and heightened risk as a result of family separation of psychological, emotional and physical vulnerability for parents and their children. It is important to note here that the applicant’s visa was canceled in August 2016 and since that time both he and his spouse have had to live with the threat of being forcibly separated as a result of his removal from Australia, which has become particularly acute since the birth of their first [child].
While the PAM notes that the best interests of the child are ‘a’ primary concern, rather than the only primary concern, we submit that the future well-being of the applicant’s Australian children is essentially connected with ongoing care by the applicant in the country of their birth. We submit that the outcome of the cancellation process will play a substantial role in the mental health and future of the applicant’s Australian citizen children. It is difficult to imagine, absent criminal behaviour, what other primary consideration would outweigh it.
We submit that the Convention on the Rights of the Child clearly provides that it is in the applicant’s children’s best interests that the family unit remains intact and the children are able to remain in Australia as is their right as Australian citizens. This factor in our submission should be given significant weight in not cancelling the applicant’s visa.
Conclusion: The applicant maintains that he is a Stateless Arab born in Iran. The applicant’s explanation for how he came to obtain an Iraqi passport and ID Card is eminently plausible. Moreover, we submit that the rights of his Australian citizen children would be grossly undermined if he was forced to separate from them, as would the rights of his Australian citizen spouse with whom he shares responsibility for their children. The best interests of the applicant’s Australian citizen children and spouse are considerations that, we submit, should outweigh the alleged breach of section 101.
Tribunal hearing 15 April 2021

The Tribunal conducted a review hearing on 15 April 2021. The applicant attended the hearing with his wife, an Australian [citizen]. The applicant’s representative [attended] the hearing via telephone from Victoria. The applicant and the Tribunal were assisted by an accredited interpreter of Persian. The applicant advised that he understood the interpreter.
At the outset of the review hearing the Tribunal went into considerable detail about the respective issues in the review. The Tribunal made extensive reference to the history of the application for protection and the cancellation process. The Tribunal also noted the basis on which the matter had been remitted back to the Tribunal to determine according to law. The Tribunal also discussed the prospective outcomes of the review.
The Tribunal noted that it would be having regard to the evidence that was provided in support of the applicant’s claims for protection, the evidence that had been provided to the previously constituted Tribunal including evidence provided at that hearing, the evidence before the Department pertaining to the cancellation of the applicant’s protection visa and the submissions and evidence provided at review.
The Tribunal made reference to the applicant’s interview conducted on Christmas Island on 21 July 2010. The applicant advised that the interview conducted with an officer on Christmas Island was undertaken in Arabic. The applicant confirmed that his first language was Persian. The applicant advised the delegate during this interview that he was born in Esfahan Iran and that his parents were deported from Iraq into Iran in the early 1980s. The applicant advised the delegate during this interview that he had a green card issued in Iran but it went missing when his family went to Iraq in 2004. The applicant advised that at the time he was on Christmas Island his parents and siblings were residing in Esfahan Iran. The applicant advised that he obtained a false Iraqi passport in Iran through bribery at a cost of US$800, the applicant advised that it was procured by a man called [name]. The applicant advised that this passport was taken by a smuggler in Indonesia.
The Tribunal made reference to the applicant’s claims for protection that were submitted to the Department. The Tribunal made reference to some of the questions in the protection visa application. The Tribunal asked the applicant where his father was born and he advised in Al Kufa Iraq. The Tribunal asked the applicant where his mother was born and he advised in Karbala Iraq. The Tribunal asked the applicant where he was born, and he advised in Esfahan Iran. The Tribunal asked the applicant what language was spoken at home and he advised Arabic but that outside the home Farsi was spoken and this was his first language. The Tribunal asked the applicant about Esfahan, where it was located, its geography and its architecture. The applicant advised that it was located in central Iran and is the capital of Esfahan Province. He advised that it has very famous Persian architecture including Naqsh-e Jahan Square.
The applicant provided evidence pertaining to his work history corroborative of that provided to the Department in support of his protection visa application. The applicant also provided evidence that the family relocated from Iran to Iraq between 2004 and 2007. The applicant advised that his family relocated to Iraq after the fall of Saddam Hussein. The applicant stated that his father made concerted attempts to obtain official Iraqi identity documents for the family without success.
The applicant provided evidence corroborative of the obtaining of the travel document that he used to depart Iran.
The Tribunal noted that the applicant departed Australia [in] November 2011 as the holder of an Australian-issued travel document, a titre de voyage, after being found to be owed protection obligations. The Tribunal noted that the applicant arrived in Iraq [in] November 2011, and that three days after his arrival he was issued with an Iraqi passport. The Tribunal asked the applicant how he was able to obtain this document within 72 hours of arriving in Iraq. The applicant stated that when he was on Christmas Island he had no Iraqi documents. The applicant stated that his father obtained an Iraqi identity card through bribery when the applicant was in Australia. The card was obtained in July 2011 prior to the applicant travelling to Iraq in November 2011.
The Tribunal asked the applicant whether he communicated with his father after he arrived on Christmas Island. The applicant stated that he contacted his father from Christmas Island and once he left Christmas Island. The applicant stated that he was not aware that his father was taking steps to obtain an Iraqi identity document for him.
The Tribunal asked the applicant whether he found out that his father had procured an Iraqi ID card for him after arriving in Iraq in November 2011. The applicant stated that he knew about this before he departed and that his father had procured the document for him whilst he was in Australia living in Melbourne.
The Tribunal noted that soon after the grant of protection the applicant decided to return to the country and circumstances from which he was seeking protection. The Tribunal asked the applicant why he did this. The applicant stated that the first reason was because his mother had significant medical problems and was hospitalised in Iraq and there was a risk that she could die, and he wished to visit his mother in Iraq at this time. The Tribunal asked the applicant whether he was fearful about returning to Iraq and the applicant stated that he was. The Tribunal noted that on 30 March 2011 the applicant was found by Australia to be owed protection obligations. The Tribunal noted that the applicant held an Iraqi identity card that was issued [in] July 2011. The Tribunal asked the applicant how this document was obtained and when and where it ended up in his possession. The applicant stated that he entered Iraq on an Australian travel document and was provided with the Iraqi ID card by his father after arriving in the country.
The Tribunal asked the applicant how he obtained a passport. The applicant stated that he attended the passport office in Karbala and showed the identity document that had been procured by his father along with some photographs. The applicant advised that the passport was issued to him within 2 to 3 days and he returned to the passport office to collect it.
The Tribunal made reference to the possible areas of non-compliance identified in the NOICC.
The Tribunal made reference to question 8 in the form 866 relating to the applicant’s place of birth. The non-compliance identified was that the applicant was born in Karbala Iraq and not Esfahan Iran. The applicant confirmed that he was born in Esfahan Iran and did not provide an incorrect answer to this question.
The Tribunal made reference to question 19 in the form 866 pertaining to identity documents. The applicant answered the question by saying that he was Iraqi but had no ID documents. The applicant confirmed that at the time of completing the form 866 he did not have any Iraqi identity documents. The applicant advised that his father had procured for him through bribery an ID document in July 2011 and it was through this document that he was able to obtain an Iraqi passport.
The Tribunal made reference to the applicant’s statutory declaration submitted in support of his protection visa application in which the applicant stated that his parents were expelled to Iran in 1980 because of the fact that his ancestors were Iranian and, that his maternal grandfather was Iranian and thus the applicant had some Iranian ancestry. The Department concluded on the basis of the evidence before them, namely the applicant’s Iraqi passport that his family were Iraqi citizens. The applicant confirmed that his family were expelled to Iran in 1980 and that his family did not hold Iraqi citizenship.
The Tribunal made reference to question 20 in the form 866 pertaining to the applicant’s citizenship at birth. The applicant stated that he had no citizenship at birth. The Department concluded that based on the applicant holding an Iraqi passport, he had provided incorrect information to this question. At hearing the applicant stated that he had no citizenship at the time of his birth.
The Tribunal made reference to question 21 in the form 866 pertaining to whether or not the applicant was a citizen or national of any other country to which he answered no. The Department determined based on the Iraqi passport that the applicant was a national of Iraq. The applicant advised at hearing that this was a correct answer as he was not a citizen or national of any other country.
The Tribunal made reference to question 23 of the 866 form which states ‘if you are stateless how, when and why did you lose your citizenship?’ The applicant’s response was that he was born stateless and that his parents were stripped of their Iraqi citizenship and deported to Iran in around 1980. The Department determined that the applicant was not born stateless and that he was an Iraqi citizen based on his Iraqi passport. The applicant stated that the answer that he provided to question 23 of the 866 form was correct.
The Tribunal made reference to question 44 of part C of the form 866 which stated ‘who do you think may harm/mistreat you if you go back?’ The applicant in response stated that the delegate should refer to information provided in his statutory declaration. The delegate determined, given the finding that the applicant was an Iraqi citizen, that it negated the claims in his protection visa application. The applicant at hearing advised that the information contained in his application and the supporting statutory declaration was correct.
The Tribunal made reference to question 8 of the form 80 character assessment. The delegate determined that the applicant’s answer to the question pertaining to his current citizenship where the applicant responded stateless was incorrect, based on the evidence before the Department the applicant was a citizen of Iraq. The applicant stated that his response to question 8 of the form 80 was the correct answer.
The applicant advised the Tribunal that he was working and living in Sydney as a stonemason. The applicant stated that he was married to an Australian citizen in June 2017, a marriage of nearly four years’ duration and that he and his wife have two [children]. The applicant confirmed that his wife obtained residency in Australia as the holder of a special humanitarian visa.
The Tribunal invited the applicant to make any final comments. The applicant advised that he had provided all the information he could and all the documentary evidence that he was able to provide to the Tribunal to support the fact that he did not provide incorrect information in his protection visa application and in his character assessment to the Department. The applicant stated that when he was in immigration detention on Christmas Island he had no identity documents in his possession. The applicant reiterated that his father arranged an Iraqi ID document for him when he was in Australia. The applicant stated that he wants to be able to remain living in Australia with his wife and children who are all Australian citizens.
The applicant reiterated that he was not in Iraq when his father secured an ID card for him through bribery, a card that was issued in July 2011, with the applicant arriving in Iraq in November 2011. The applicant stated that during the period that his family returned to Iraq between 2004 and 2007 the applicant’s father made a concerted effort to obtain official Iraqi ID documents for his family but did not succeed. The applicant stated that through his father’s persistence, his father was able to obtain Iraqi ID documents through the payment of bribes in 2011. The applicant added, that in Iraq when a person applies for identity documents, they did not need a place of birth as they can record the birthplace of their father.
The applicant advised that he had provided substantial corroborative evidence of the fact that he was born in Iran such as the green cards of his parents and his sister, and education and school certificates to middle-level schooling in Iran. The applicant stated that this evidence shows that he was born in Esfahan.
The applicant stated that it was during his third trip back to Iraq he fell in love, a union that was consented to and that his marriage was recorded by an Imam. The applicant stated during his first trip back to Iraq he went there feeling that he could be at risk and he did not feel completely safe, but he did not have any choice as his mother was sick. The applicant provided an analogy of his return to Iraq on the first occasion. The applicant stated that “it was just like somebody going to war as a soldier, he may die or survive and return home.”
The applicant stated that all the evidence that he had provided to the Department was true and correct. The hearing concluded.
Does the ground for cancellation of the applicant’s visa exist?
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.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 on the basis that the applicant had provided incorrect information in his Subclass 866 protection visa application and in his form 80 character assessment. The incorrect information was that the applicant was not stateless and was not born in Iran but was in fact an Iraqi citizen born in Karbala Iraq.
The Tribunal has given careful consideration to the applicant’s claims for protection from the time the applicant first arrived on Christmas Island. The Tribunal notes that there has been a consistent thread of evidence in these claims and the applicant has not waivered in his evidence which has been rigorously tested on numerous occasions. The applicant has maintained that he was born in Esfahan Iran and that his parents had been expelled from Iraq in the early 1980s, due to the fact, that on his maternal side, there was Iranian ancestry. He has advised that Saddam Hussein expelled many Iraqi, Shia Arabs, to Iran at this time. The applicant has maintained that the family were not able to acquire Iranian citizenship due to their Arabic ancestry and the best they were able to procure were Iranian green cards which provided limited rights.
The applicant maintained that as green card holders he and his family were not able to access any secure employment and had to work illegally for poor pay, and they could not secure housing or obtain health care without paying exorbitant prices. They had no access to tertiary education, limited educational opportunities and the family struggled to make a living.
The applicant has maintained that in 2004, after the fall of Saddam Hussein, the family relocated to Karbala in Iraq with the hope that they would be able to apply for and obtain Iraqi identity documents, given their Arabic ethnicity. The applicant’s father engaged the services of a lawyer to assist in this quest, however, the lawyer was not able to find evidence proving familial ties to Iraq and the family were not able to obtain documentation through legal channels. The family remained in Iraq from 2004 to 2007 but due to the prevailing uncertain and unstable conditions in that country they returned to Iran to Esfahan, which had been their primary place of residence.
The applicant has maintained that life was very difficult in Iran due to the lack of citizenship and that due to the prevailing conditions the applicant decided to raise some money to leave Iran.
The applicant was interviewed by a Departmental delegate pertaining to his claims for protection and the applicant was found to have provided a consistent and credible account of his claims for protection and to be owed protection obligations.
The delegate as has been noted found that:
the claimant has provided credible information concerning his life in Iran from the time of his birth until his departure with his family in 2004. He also provided details of the relocation with his family to Iraq for the period 2004 to 2007 and the difficulties of life in Iraq. I accept that the claimant’s parents were deported from Iraq in approximately 1980 during the time of Saddam Hussein’s regime and as a result were deprived of their Iraqi citizenship and any documents that they may have held to verify their Iraqi citizenship were destroyed. I accept that the claimant’s family were unsuccessful in acquiring their Iraqi citizenship despite having made exhaustive attempts while they were residing in Iraq, with the assistance of a lawyer, to locate any records of their identity. I accept that the claimant is a stateless person.
The applicant has also provided a consistent thread of evidence when he responded to the identified grounds for cancellation of his visa in the NOICC.
The applicant also provided a consistent thread of evidence with regard to his claims for protection and the provision of correct information in his protection visa application when he was given an opportunity to do so at the time the Department conducted the International Treaties Obligation Assessment. The applicant provided a comprehensive response for the purpose of this assessment which is consistent with his claims for protection and the reasons that he returned to Iraq and Iran after the grant of protection, namely to visit his critically ill mother and to arrange a marriage, a common occurrence in Arabic and Shia culture and religion.
The Tribunal having regard to the evidence before it makes the following findings with regard to the provision of incorrect information by the applicant in his Subclass 866 visa application and the form 80 character assessment.
At question 8 of the form 866 the applicant stated that he was born in Esfahan Iran. The Department determined that based on the applicant’s Iraqi passport found in his possession that he was an Iraqi citizen. The Tribunal finds for the following reasons that the applicant was born in Esfahan Iran. The Tribunal hearing was conducted at the request of the applicant in Persian/Farsi. The applicant is clearly fluent in Persian which corroborates the applicant’s claims that he was born and raised and educated in Iran and that Persian is his first language. The Tribunal also accepts the applicant’s claims that his family, due to their Arabic ethnicity spoke Arabic in the family home. The Tribunal notes that when the applicant was interviewed by the Departmental delegate on Christmas Island the interview was conducted in Arabic. The Tribunal also accepts the applicant’s evidence that as Persian is his first language that he speaks Arabic which is somewhat broken and is infused with a Persian accent. The applicant, during the course of his claims for protection has provided evidence that indicates that members of his family were issued with green cards in Iran consistent with the claims by the applicant that he and his family were stateless.

The applicant has given a consistent account of his life in Iran, his limited education, his sporadic work history, and he has provided details about the city of his birth Esfahan pertaining to its location and geography and its architecture. Further to this the evidence indicates that when the applicant made return journeys to Iraq he travelled into Iran and according to his evidence he travelled to Esfahan where his family had established links.
The Tribunal notes that the Department found the applicant’s claims to have been born in Esfahan were incorrect on the basis of the Iraqi passport found in the applicant’s possession at an airport inspection, upon returning to Australia. The applicant’s evidence is that he offered up the Iraqi passport to airport officials at this time. The applicant has maintained a consistent line of evidence around this issue. The applicant has claimed that his family relocated to Iraq from Iran in 2004 after the fall of Saddam Hussein, in an attempt by his father to obtain official Iraqi identity documents for the whole family, through a lawyer, an attempt which failed. The applicant’s father continued to pursue access to documents in Iraq through unofficial channels and was able to secure an ID card for the applicant in July 2011 through bribery, which he provided to the applicant when he returned to Iraq in November 2011. The applicant used this card within days of his arrival to apply for an Iraqi passport at the passport office in Karbala which was issued within a few days.
The Tribunal has looked closely at the Department of Foreign Affairs and Trade (DFAT) Country information report for Iraq issued in August 2020 addressing the issue of documents. That report notes there is widespread prevalence of fraud and that “fraudulent documents are reportedly commonly and cheaply available. Genuine documents obtained through fraudulent means are also common, mostly obtained by paying bribes to officials.”
The Tribunal finds that it is entirely plausible based on this information that the applicant’s father was able to secure an Iraqi identity document through the payment of bribes for the applicant in July 2011.
The country information from DFAT supports the proposition that the applicant used this ID card to obtain an Iraqi passport from the passport office in Karbala within days of his arrival.
The Tribunal notes that the applicant did not attempt to secrete the existence of this Iraqi passport at the airport inspection and also noted correctly, on his incoming passenger cards, the places he had visited when he departed Australia on his three overseas trips during the period November 2011 to 2014. There was no attempt by the applicant to hide this information. In addition to this the Tribunal notes that when the applicant departed Australia on his first departure he travelled to and entered Iraq on an Australian-issued titre de voyage.
The Tribunal finds on the basis of this evidence that the applicant did not provide incorrect information pertaining to his answer to question 8 in his form 866 at the time he applied for protection.
Having regard to question 19 of the form 866 that the applicant did not have identity documents, the Tribunal finds that this answer was correct at the time the applicant applied for his Subclass 866 visa as he did not have any identity documents. The Tribunal accepts that the applicant acquired an Iraqi identity card procured through bribery by his father in July 2011 which came into his possession in November 2011 in Iraq and through which he was able to apply for an Iraqi passport. The Tribunal finds this is entirely plausible based on the DFAT report of August 2020, pertaining to fraudulent documents in Iraq.
The Tribunal finds that the applicant did not provide incorrect information in his statutory declaration submitted in support of his protection visa application, and that his family was expelled in 1980 from Iraq to Iran. The applicant has given a consistent account of his family history since his initial assessment on Christmas Island. The existence of an Iraqi passport found in the applicant’s possession does not negate this. The Tribunal accepts that the applicant’s father was, through the payment of bribes, able to secure an Iraqi ID card for the applicant and that he was then able to use this document to obtain an Iraqi passport.

100. The Tribunal finds that the applicant did not provide an incorrect answer to question 21 of his Subclass 866 visa application, that he was not the citizen or national of any other country. At the time the applicant was not a citizen of Iran or Iraq and the Tribunal accepts that the applicant came to be in the possession of an Iraqi passport through the acquisition of an Iraqi ID card in November 2011 obtained by his father through bribery in July 2011.
101. The Tribunal finds on the basis of the evidence before it that the applicant’s answer to question 23 in his Subclass 866 visa application that he was stateless was not incorrect. As has been noted the applicant has given a consistent account of his family’s circumstances since his arrival on Christmas Island. He has not deviated from this evidence. The applicant has given evidence that his possession of an Iraqi passport only came about after his father was able to obtain an Iraqi ID card through the payment of bribes in July 2011.
102. The Tribunal finds that the applicant when he responded to question 44 in his Subclass 866 visa application, ‘who do you think may harm/mistreat you if you go back’ by deferring to the evidence provided in his statutory declaration, did not provide incorrect information. As noted the applicant came to be in the possession of an Iraqi passport due to the fact that his father was able to procure an Iraqi ID card for the applicant in July 2011 through bribery, which the applicant then used to obtain an Iraqi passport in November 2011 from the Karbala passport office. The use of bribery to obtain both unofficial and official documents in Iraq is corroborated in the August 2020 DFAT report.
103. The Tribunal finds on the basis of the evidence before it that the applicant’s answer in his form 80 character assessment, at question 8, that he was stateless is not incorrect. The applicant, as noted, has given a consistent account of his family’s statelessness from the time they were expelled from Iraq in the early 1980s, to their relocation to Iraq after the fall of Saddam Hussein from 2004 to 2007 in an attempt to obtain official documentation, to their return to Iran in 2007 due to the prevailing living conditions and lawlessness in Iraq at that time. The only reason that the applicant came to be in possession of an Iraqi passport is that his father obtained an Iraqi ID card through bribery for the applicant in July 2011 which the applicant used to obtain an Iraqi passport in November 2011. As noted, DFAT in August 2020 reports that both official and unofficial documents are able to be accessed in Iraq through the payment of bribes.
104. The Tribunal notes that adverse conclusions have been made about the applicant’s return to Iraq and Iran after the grant of protection. The applicant with regard to the return visits has advised that he was compelled to return to Iraq as his mother was critically unwell and had been hospitalised in Karbala. The medical evidence provided in support of this extended period of hospitalisation coincides with the applicant’s first return visit.
105. The applicant has given evidence that his subsequent return visits were to see his family, however the paramount reason was to arrange a marriage and to marry, which he did. The marriage did not last due to immigration issues.
106. The applicant has provided evidence that during his return visits to Iraq he was perceived to be Iranian because of his accent when he spoke Arabic and that in Iran he was subject to the difficulties that he had encountered as a non-Iranian.
107. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
108. The Tribunal has made the finding for the above reasons, that there was no non-compliance by the applicant in the way described in the s.107 notice and thus the Tribunal is not required to consider the discretionary power to cancel the visa, as the ground for cancellation does not arise. However, if the Tribunal was wrong in this respect, the Tribunal would in the circumstances of this case set the cancellation aside exercising the relevant discretion to do so.
109. The Tribunal notes the pre-hearing submission of 11 March 2021 which addresses a range of specific discretionary factors that should be taken into account. One of these, the rights of any children of the applicant is given particular emphasis. The submission in this respect notes that:
We submit that the Convention on the Rights of the Child clearly provides that it is in the applicant’s children’s best interests that the family unit remains intact and the children are able to remain in Australia as is their right as Australian citizens. This factor in our submission should be given significant weight in not cancelling the applicant’s visa.

110. The evidence before the Tribunal indicates that the applicant has been in Australia for over 10 years. In 2017, the applicant married an Australian citizen, who acquired her permanent residence via a special humanitarian visa. The applicant’s wife was born in Iraq and her family fled Iraq and were granted protection in Australia many years ago. The applicant and his wife have two Australian citizen children aged three and one. The applicant is the primary breadwinner for his family.
111. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
112. As discussed, if the Tribunal is wrong on the issue of non-compliance by the applicant in the way described in the notice given under s.107 of the Act, the Tribunal would conclude having regard to all of the discretionary factors and the weight that should be apportioned to them that the visa should not be cancelled.
DECISION
113. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
John Cipolla
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2021] AATA 2450

12 May 2021

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