1919235 (Migration)

[2021] AATA 2550

1919235 (Migration) [2021] AATA 2550 (29 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1919235

MEMBER:Alison Murphy

DATE:29 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 29 June 2021 at 10:10am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers in protection visa application – country of citizenship and fear of harm – stateless Kuwaiti Bidoon fearing harm in Iraq – marriage certificate stating Iraqi birthplace and children’s nationality by descent – two voluntary returns with no harm – discretion to cancel visa – credible evidence of residence in and expulsion from Kuwait – marriage certificate not genuine – granted Iraqi citizenship sometime after arriving there and initially provided identity card to department – later applications made on his behalf confused status in and claims against Kuwait and Iraq – claim against Iraq based on ethnicity, religion and imputed political opinion – travel for seriously ill daughter and after attack on father – wife and children now refugees in third country with partner visa application in progress – applicant’s physical and mental health, destitution and homelessness – country information – general security and status as vulnerable returnee from Western country – non-refoulement – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 99, 100, 101, 107, 109(1), 198
Migration Regulations 1994 (Cth), r 2.41

CASES
AGA16 v MIBP [2018] FCA 628
MIAC v Khadgi (2010) 190 FCR 248
Zhao v Minister for Multicultural Affairs [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant breached s.101 of the Act by providing incorrect answers about his country of citizenship and his fear of harm in his visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 25 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   BACKGROUND

6. The applicant is a [age]-year-old male born in Al Jahra, Kuwait on [Date 1]. He is of Bidoon ethnicity and Sunni Muslim religion and is married with [children]. He arrived in Australia by boat [in] January 2011 and lodged an application for a protection visa shortly afterwards. In that application he identified himself as a stateless Bidoon who was expelled from Kuwait to Iraq in 1992 where he resided in Al-Zubair until travelling to Australia.

7. The applicant provided a written statement with his protection visa application. In that statement he said, among other things, that after the liberation of Kuwait, the Iraqi army started retaliating against Bidoons because the army thought they were supporters of Saddam’s regime. He claims to have been arrested in mid-March 1991 and detained and tortured until visited by the International Committee of the Red Cross in May 1991. When his matter went to court, he was acquitted of the charges of supporting the Iraqi regime and being unlawful in Kuwait and he was released in February 1992 and deported from Kuwait to Iraq where he ended up in Al-Zubair in Iraq’s south.

8. He claimed that although he and other Kuwaitis were allowed to stay in Iraq, they were mistreated and hated by many Iraqi people. Soon after Saddam’s regime fell, one of the religious extremist groups targeted the Sunni mosque in Al-Zubair that the applicant sometimes attended and shot the people attending prayers, killing 2 or 3 people. Over the years the militia, religious and political groups started targeting Sunni people, killing and torturing them and targeted Sunni mosques and schools. In 2010 the applicant’s son was beaten up by Shia school children because he was a Sunni Muslim. Two weeks prior to the applicant’s departure from Iraq, his close friend was arrested by Shi’ite elements of the government because he was Sunni. The applicant fled, fearing he would be next to be arrested, tortured and killed and still does not know what happened to his friend or if he is still alive.

9. On 17 May 2011 a Refugee Status Assessment officer assessed that the applicant did not engage Australia’s protection obligations. That decision was reviewed by an Independent Merits Review officer who found that the applicant met the criteria for a protection visa and recommended that he be recognised as a person engaging Australia’s protection obligations on 21 January 2012. The applicant was subsequently granted a Class XA Subclass 866 Protection visa on 29 February 2012. 

10. On 11 July 2018 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation (the s.107 notice), advising him that the Department of Immigration and Border Protection was considering cancelling his protection visa on the ground that it considered he had provided incorrect information in his protection visa application about his citizenship and his fear of harm in Iraq.

11. In particular the s.107 notice set out that the applicant had declared himself to be stateless at birth and answered ‘N/A’ to a question asking his current citizenship, if different from his citizenship at birth. The applicant had also answered ‘no’ to a question asking if he held any other citizenship or if he was a national of any other country. The notice set out that the Department held evidence indicating the applicant was in fact a recognised Iraqi citizen, being the applicant’s Iraqi marriage certificate submitted in support of his partner visa application. That marriage certificate stated that the applicant was an Iraqi national, with his birth details recorded in civil [Register Number 1], folio [number] in [Location 1]. The s.107 notice set out that the Iraqi nationality certificates for the applicant’s children indicated that their citizenship was granted by descent, meaning their father must be an Iraqi citizen. The s.107 notice stated that it therefore followed that the applicant was an Iraqi citizen.

12. In relation to the applicant’s fear of harm in Iraq, the s.107 notice set out that the grant of the protection visa was based on the acceptance of the applicant’s claims that he could not return to Kuwait or Iraq due to his status as a stateless Kuwaiti Bidoon who was subject to discrimination and persecution in both those countries and who could not seek the protection of the Iraqi authorities or safely relocate within Iraq. The s.107 notice set out that this information was incorrect because the applicant was a documented Iraqi citizen who would have been afforded the same rights and protections as other Iraqi citizens. The s.107 notice set out that the applicant had returned to Iraq in each of 2012 and 2014 without apparent harm, indicating he did not have an adverse profile in that country.

13. The s.107 notice alleged that these matters indicated the applicant had given incorrect information about: his citizenship at birth (question 19 of Form 866C); his current citizenship (question 20 of Form 866C); whether he held any other citizenship (question 21 of Form 866C); the circumstances in which he lost his citizenship and became stateless (question 23 of Form 866C); the countries to which he did not wish to return (question 41 of Form 866C); the reasons he left those countries (question 42 of Form 866C); his fears on return to those countries (question 43 of Form 866C); the persons he thought would harm him if he returned (question 44 of Form 866C); why he thought he would be harmed (question 45 of Form 866C) and whether the authorities could protect him on return (question 46 of Form 866C).

14. The applicant responded to the s.107 notice on 17 July 2018. In that response he denied providing any incorrect information in his visa application, maintaining that he was born a stateless person in Kuwait who had later obtained a genuine Iraqi civil status card and a passport through bribes. He agreed he had returned to Iraq at the times set out in the s.107 notice, but stated that he had done so due to the illness of his [daughter] in 2012 and following an attack on his father by Shia militias in 2014. He maintained the information provided in his protection visa application was correct.

15. On 15 July 2019, the delegate made a decision to cancel the applicant’s resident return visa. The applicant seeks a review of that decision from this Tribunal.

    LEGISLATIVE FRAMEWORK

16. 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.

17. 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.

18. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

    b)In relation to the applicant’s genuine fear of harm in Iraq from the Shia militias as a stateless Bidoon and Sunni Muslim, on the basis the delegate considered that his voluntary returns to Iraq in 2012 and 2014 indicated he did not have a fear of harm in that country at the time he made his claims for protection.

20. A mere suspicion is not sufficient to establish the ground for cancellation. Rather, before the visa can be cancelled, a decision maker must reach a real state of satisfaction that a ground for cancellation exists. A visa cannot be cancelled because the decision-maker has identified a possible ground for cancellation which the visa holder has not been able to rebut[1].

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

21. The delegate considered the above matters and nonetheless found that there had been non-compliance in the way described in the s.107 notice.  For the following reasons I have accepted that the applicant gave some incorrect information in his protection visa application, although not in respect of all of the matters set out in the s.107 notice.

    Did the applicant give incorrect information about his nationality?

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

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

    ·The applicant’s marriage certificate states that the applicant is an Iraqi national, with his birth details recorded in civil [Register Number 1], [folio number] in [Location 1]. The Iraqi nationality certificates for the applicant’s children indicate that their citizenship was granted by descent, meaning their father (the applicant) must be an Iraqi citizen;

    ·The applicant voluntarily returned to Iraq in 2012 and 2014.

    The applicant’s nationality

24. It is readily apparent from the history of this matter that the issue of the applicant’s nationality and citizenship has been the subject of some confusion. At the Tribunal hearing, the applicant and his representative agreed that the applicant is an Iraqi citizen, as are his wife and children. It is submitted that the applicant did not provide incorrect information in his protection visa application about his Iraqi citizenship, rather he accurately advised the Department that he is both a stateless Kuwaiti Bidoon and an Iraqi national. It is further submitted that the applicant did not claim and was not granted protection on the basis of his lack of Iraqi citizenship, rather his claims for protection against that country were made on the basis of his Sunni religion and Kuwaiti ethnicity.

25. The applicant gave evidence at the Tribunal hearing that he is both a stateless Bidoon who was expelled from Kuwait and an Iraqi citizen. It is clear he sees no contradiction between those statements and he identifies primarily as a Bidoon who was stateless in his country of birth, Kuwait. At the same time he acknowledges he was later granted citizenship in Iraq. Part of the reason for the apparent contradiction is that the Arabic word for ‘bidoon’ translates to ‘without’ and derives from the Arabic phrase bedoon jinsiyya, which literally means ‘without nationality’ or ‘without citizenship’:

    The word ‘bidoon’ (Arabic for ‘without’) is from the Arabic phrase bedoon jinsiyya, literally meaning either ‘without nationality’ or ‘without citizenship’. The phrase, which originated in the late 1950s, was originally the official designation for anyone whose qualification for Kuwaiti citizenship was in doubt. The term should not be confused with Bedouin, from the Arabic word ‘badawi’, meaning nomad. Although many Bidoon are of Bedouin origin, most of them have long since settled in the urban centres of Kuwait, and many have never lived a nomadic life[2].

    [2]' Human Rights Watch, The Bidoons of Kuwait: “Citizens without Citizenship”, August 1995, p.2 at >

    Country information confirms that although many Bidoons have lived in Kuwait all their lives, they are not Kuwaiti citizens. Rather those classified as bedoon jinsiyya were either denied or failed to gain Kuwaiti citizenship[3]. According to Human Rights Watch, Bidoons received economic and social benefits equal to those of Kuwaiti citizens during the 1960s and 70s, including free health care and education, but could not vote. However, regional instability, and in particular the Iran-Iraq war, led the Kuwaiti government to significantly shift its policy towards the Bidoon in the 1980s and 1990s, downgrading their status to that of ‘illegal residents’, revoking benefits and excluding them from government services and jobs[4].

    [3] UK Home Office, Operational Guidance Note – Kuwait, May 2011, p. 4 at

    [4] Comparative Study on the Benefits of Nationality, Edward Elgar Publishing Inc, p. 175, 37, Human Rights Watch, Kuwait: Prisoners of the Past, Bidun and the Burden of Statelessness, June 2011, p. 3 <>

    After the Iran-Iraq war ended, Bidoons were suspected of being supporters of or collaborators with the Iraqi occupying forces and subjected to discrimination and mistreatment by the Kuwaiti authorities. Kuwait deported many Bidoons and those who had left Iraq as a result of the war were not allowed to return and remained stateless in other countries[5].

    [5] US Committee for Refugees and Immigrants 2002, ‘World Refugee Survey – Occupied Palestinian Territory, Israel, Iraq, Iran, Kuwait’, ECOI website < >

26. It is reported that since 1991, Bidoons have been denied rightful claims to Kuwaiti citizenship, education (provided to other Kuwaitis free of charge) in government schools, employment opportunities and state health services. The Kuwaiti government also reportedly dismissed Bidoons from government jobs, restricted them to impoverished areas and barred children from Kuwaiti schools. In 1995, Bidoons were excluded from Kuwait’s population census for the first time.[6]

    The applicant’s nationality at birth

    [6] Global Security, Kuwait – Military Personal, 10 December 2012, < Refugees International, ‘Kuwait: Still Stalling on Statelessness’, 12 May 2010, <

27. The applicant has provided a great deal of credible documentary evidence about his own residence in and later expulsion from Kuwait in 1992 including his Kuwaiti school records, his eldest’s son’s maternal and child care card from the Ministry of Public Health in Kuwait, a record of the applicant’s release from prison in Kuwait, evidence of being visited by the Red Cross in prison in Kuwait, a Red Cross Card, and evidence of his deportation from Kuwait to Iraq. These documents were provided to the Department and are contained on the applicant’s protection visa file. He has also provided the Tribunal with a copy of his exemption from military service in Iraq, on the basis that he was deported from Kuwait, as well as a translated copy of his first Iraqi Civil Status Identification Card, which records he was born in Kuwait.

28. His account of his expulsion from Iraq has been consistent throughout his interactions with the Department and is also consistent with available country information about the situation in Kuwait at that time.

29. The only evidence that might contradict the applicant’s account of his birth in Kuwait and subsequent expulsion to Iraq is his Iraqi marriage certificate, which lists the applicant’s place of birth as [Location 1], Iraq. It is submitted by the applicant’s representative that the marriage certificate is not genuine and that such certificates are among the least reliable forms of documentation in Iraq and can be purchased using bribes.

30. For the following reasons I accept the marriage certificate is not genuine.

31. Firstly, DFAT reports that documents issued under Iraq’s religious procedures such as marriage, divorce and custody certificates have weak or no security features and that fraudulent documents are common and cheaply available, as are genuine documents obtained through fraudulent means, most often through the payment of bribes[7]. DFAT has previously reported that Iraq’s procedures for issuing documentation are antiquated with manual records being employed and most types of documentation not having adequate security features[8].

    [7] DFAT Country Information Report Iraq August 2020

    [8] DFAT Country Information Report Iraq 13 February 2015 at 5.47

32. Secondly, the applicant’s marriage certificate records the date of marriage as [Date 2], being after the applicant’s deportation from Kuwait to Iraq. I consider that is highly unlikely to be accurate, given the strong evidence that the applicant’s eldest son was born in Kuwait in 1991 and the applicant was deported from Kuwait along with his wife and child. I accept the submission that in a deeply conservative and religious society, it is highly unlikely the applicant and his wife cohabited or had a child prior to their marriage.

1. For these reasons I find the Iraqi marriage certificate is not genuine; rather, I accept the applicant was married in Kuwait before his expulsion from that country. I find the applicant was born in Kuwait and lived in that country as a stateless Bidoon up until the time he was expelled to Iraq in 1992. It follows that I am not satisfied that he gave incorrect information about his citizenship at birth at question 19 of the Form 866C.

   The applicant’s Iraqi nationality

2. The applicant acknowledges that he obtained Iraqi citizenship at some time after his arrival in that country in 1992, as evidenced by his Iraqi identity card. At hearing he told me he does not know exactly how that occurred as his father arranged it for the whole family. It is submitted that the applicant was most likely granted Iraqi citizenship as part of the one-time assistance package from the Iraqi government called Makremiayah (meaning a generous act). To obtain citizenship, Bidoons had to declare that Kuwait was not their place of birth (i.e. they had to renounce their association with Kuwait) and often needed sponsorship by a local tribe[9]. This may explain why the Iraqi marriage certificate lists the applicant’s place of birth as [Location 1], Iraq rather than Kuwait.

   [9] Department of Foreign Affairs and Trade, DFAT Report No. 10/54 – Iraq: RRT Information Request: IRQ37183, 13 September 2010

3. The applicant argues that he did not provide incorrect information about his Iraqi citizenship, rather he made it known to the Department upon his arrival that he is an Iraqi citizen and provided a copy of his Iraqi identity card together with his protection claims. While this is correct, it is also the case that the applicant and his representatives have made a series of apparently contradictory statements about his Iraqi citizenship over the course of the assessment of his protection claims.

4. The written record of the applicant’s entry interview on 27 January 2011 records that the applicant stated that he was a citizen of Iraq, but that his religious doctrine was not wanted or liked in that country (question 22). He advised the Department that he had an Iraqi identity card and also disclosed that his [wife] was an Iraqi citizen and their [children] were living with her in Iraq. In relation to his departure from Iraq, the applicant stated that he obtained his Iraqi passport by giving his ID card and paying money to a person who arranged for that passport to be issued quickly. He said he did not know whether the passport was genuine, but there was no trouble when he travelled. It is clear that the applicant openly disclosed his Iraqi citizenship to the Department at his entry interview.

5. A month later the applicant described himself as ‘stateless in Iraq’ in his request for a Refugee Status Assessment (RSA) dated 23 February 2011. At the same time he again disclosed at question 27 that he was the holder of an Iraqi identity card [number], issued [December] 2009, those cards generally being issued only to Iraqi citizens. In response to question 28 asking if any of the documents listed were not issued legally, he answered yes without giving further details and at question 31 he identified only his passport as having been issued after payment of a bribe.

6. In his statutory declaration setting out his claims for protection, also dated 23 February 2011, he stated he believed he was owed protection by Australia because he had suffered and continued to fear persecution in Kuwait and Iraq on the basis of his imputed political opinion, his Shia religion, his status as a Sunni Bidoon and because his brothers worked for [specified foreigners]. He did not mention his status as a stateless Bidoon in Iraq until the last sentence of that statutory declaration and his statelessness does not otherwise feature in the claims set out in that statutory declaration.

7. An RSA officer assessed him as a stateless Bidoon who had formerly been resident in Iraq and determined that he did not meet the definition of a refugee on 17 May 2011. In the decision record, the RSA officer noted that the applicant provided a copy of his personal status card from the Ministry of the Interior, Directorate General of Citizenship in Iraq, issued in 2009 in the applicant’s own name. Notwithstanding this card, the RSA officer found the applicant to be a stateless Bidoon originating from Kuwait who did not have citizenship in any country. There is no discussion in the RSA officer’s decision as to the significance of the personal status card.

8. The RSA officer’s decision was later reviewed by an Independent Merits Reviewer (IMR). The IMR documents do not form part of the materials provided to the Tribunal by the Department, but the Tribunal has been provided with a copy of the IMR decision by the applicant.

9. The IMR officer set out in detail the contents of a further statutory declaration made by the applicant in the context of that review, as well as the evidence given by the applicant at the IMR interview. In that evidence, the applicant makes repeated reference to his status as a stateless Bidoon in Kuwait, but also describes his status in Iraq as a ‘stateless and undocumented resident’. He stated among other things that he was a stranger in Iraq and recognised as a non-Iraqi and also that he had no citizenship. He stated that in order to apply for work in Iraq he was required to present his identity card, which clearly states that he is Kuwaiti Bidoon and as a result he was forced to work illegally.

10. The IMR’s summary of the applicant’s own evidence at interview with the IMR does not suggest the issues of his Iraqi identity card or potential Iraqi nationality were discussed with the applicant at interview. However, submissions made on the applicant’s behalf refer to the Iraqi identity document produced by the applicant as being a ‘personal status card’ which does not bestow Iraqi citizenship and associated rights and state that the applicant had not been able to obtain Iraqi citizenship. The extract of those submissions that is contained in the IMR’s decision refers to country information in support of those assertions, however, it is not reproduced in the IMR’s decision and the submissions themselves do not form part of the materials before this Tribunal.

11. However it would appear the IMR accepted this submission, because he assessed the applicant on the basis of his status as a stateless Kuwaiti-born Bidoon resident without citizenship in Iraq. The IMR recorded in his decision that the applicant had stated at hearing that he had paid to obtain an Iraqi passport which was not genuine. The applicant had previously stated that he paid a bribe to obtain his Iraqi passport quickly, and that he did not know whether the passport was genuine but that he had no problems departing Iraq using that passport. The reviewer accepted the applicant was a stateless Bidoon born in Kuwait from where he was expelled to Iraq and that he suffered severe discrimination in many areas of his life as a result. The reviewer concluded that the cumulative effect of this discrimination amounted to serious harm and therefore that the applicant had a well-founded fear of persecution in Iraq by reason of his ethnicity (being a Kuwaiti-born Bidoon) and his religion (Sunni Muslim).

12. Country information before the Tribunal indicates that Iraq’s Civil Status Identity Card is “perhaps the most important official document in Iraq” and is “treated like a birth certificate” and should be possessed by all Iraqi citizens and is required to register children in school and to obtain passports. In order for a Civil Status Identity Card to be issued, an individual is required to produce a number of identity documents including their nationality certificate as well as the national identity cards, residence cards and ration cards of the individual and their father[10].

    [10] Canada: Immigration and Refugee Board of Canada, Iraq: Civil Status Identification Card, including purpose and validity; requirements and procedures for the issuance, renewal and replacement of cards, including the location of issue; frequency of fraudulent identity cards (2011-November 2013), 25 November 2013, available at: >

    UNHCR reports that Bidoons who were granted Iraqi citizenship are reported to possess Iraqi ID and nationality certificates and enjoy the same rights as all Iraqis, although many of them are reported to live in poor conditions. Bidoons classified as “deportees from Kuwait”, although granted citizenship, were not allowed to own property inside the cities, but otherwise hold the same status as all Iraqis and their poor living conditions are similar to those of the host community. By contrast Bidoons who were not granted Iraqi citizenship do not hold Iraqi ID cards, nationality certificates or PDS cards, their children are not registered and they do not have access to health facilities[11].  On the basis of this information, it would appear that those Iraqi Bidoons who hold Iraqi ID and nationality certificates are Iraqi citizens.

    [11] 'Iraq-IRQ37184-Bidoons-UNHCR Advice', Country of Origin Information Section (COIS), Country of Origin Information Section (COIS), 09 September 2010, CR829A2B4632

13. In the response to the s.107 notice, the applicant’s former representative made a number of confusing and apparently contradictory statements. In response to the allegedly incorrect information given at question 21, which asks if the applicant holds any other citizenship, it was submitted that the applicant’s response of ‘no’ was correct because he doesn’t have any other citizenship. That is clearly inconsistent with the applicant’s own statements at the entry interview and the Tribunal hearing. However, elsewhere in the same submission, it is stated that the applicant obtained an Iraqi civil status card and passport by paying bribes ‘but did not state that these IDs were fake or fraudulent’. The submission goes on to state that his family members hold Iraqi citizenship because of the applicant’s civil status ID already presented to the Department, and again states that the fact they were obtained by bribes doesn’t mean that they were fake or not genuine. To the extent that submission might be taken to mean that the applicant’s civil status ID card and passport are genuinely issued documents obtained fraudulently through bribes, it is inconsistent with the applicant’s own evidence at the entry interview and later at the Tribunal hearing.

14. The reasons for the apparently inconsistent statements and findings about the applicant’s identity documents and Iraqi citizenship remain unclear to me, however, I consider the following factors are likely to have contributed to the confusion:

    ·As noted above, the Arabic word for ‘bidoon’ translates to ‘without’ and derives from the Arabic phrase bedoon jinsiyya which literally means ‘without nationality’ or ‘without citizenship’. The applicant strongly identifies as a stateless Iraqi Bidoon, while acknowledging he was later granted Iraqi citizenship. He sees no contradiction between those two statements and has little appreciation of the consequences of his Iraqi citizenship on the assessment of his protection claims;

    ·The protection visa application Form 866C jointly deals with the applicant’s claims for protection against both Kuwait and Iraq. In fact his claims against Kuwait are not relevant to his assessment as a refugee as it is accepted he has no right of return to that country and he had not been resident there for many years. Therefore, Kuwait is neither his country of nationality nor his country of former habitual residence. Rather, the applicant was assessed by both the RSA office and the IMR on the basis of his claims against Iraq, as his country of former habitual residence. It appears likely that during the assessment process, the applicant’s experiences of being stateless in Kuwait were erroneously conflated with his experiences in Iraq;

    ·The applicant participated in an entry interview shortly after his arrival during which he stated that he is a citizen of Iraq, as are his wife and children. He advised the Department he held an Iraqi identity card and provided a copy of that card. For the later interviews he was legally represented and it appears there may have been a creeping assumption on the part of those preparing and assessing his claims that the applicant’s continued statements about his statelessness referred to his status in Iraq as well as in Kuwait with the result that he was incorrectly determined to be stateless by the RSA officer and the IMR on the basis of submissions made by his former legal representatives.

15. Ultimately, the issue for this Tribunal is whether the applicant gave incorrect information in his protection visa application in the manner set out in the s.107 notice. The effect of s.99 of the Act is that any information that the applicant gives or provides to a departmental officer or a person reviewing a decision under the Act, or that is given or provided on his behalf, is taken to be an answer to a question in his application form. The effect of s.100 is that an answer to a question in a visa application 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.

16. In this case the s.107 notice states that the applicant gave incorrect information about his current citizenship when he answered ‘none’ (at question 20 of Form 866C) and whether he held any other citizenship when he answered ‘N/A’ (at question 21 of Form 866C). As it is agreed the applicant is an Iraqi citizen, those answers are clearly incorrect. It follows that I am satisfied the applicant gave incorrect information about his current and other citizenship at questions 20 and 21 of the Form 866C. This is the case even though the applicant had previously disclosed his Iraqi citizenship at the entry interview.

17. The notice alleges that the applicant gave incorrect information about the circumstances in which he lost his citizenship and became stateless (question 23 of Form 866C). The applicant stated that he was born stateless and referred to his RSA statement for details. As this clearly refers to his statelessness in Kuwait and it is accurate in respect of that country, I am not satisfied that response is incorrect.

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

18. The s.107 notice further alleges that the applicant gave incorrect information about the reasons he left Kuwait and Iraq; his fears on return to those countries; the persons he thought would harm him if he returned; why he thought he would be harmed; and whether the authorities could protect him on return. The s.107 notice alleges that the applicant’s responses to these questions were incorrect because as a documented Iraqi citizen he would have been afforded the same rights and protections as other Iraqi citizens. The s.107 notice also alleges that his two returns to Iraq without apparent harm suggest he did not and does not hold an adverse profile in Iraq.

19. I do not accept this to be the case. The applicant’s claims regarding the past harm he had suffered in Kuwait and Iraq were based heavily on his Bidoon ethnicity and his Sunni religion, matters that are not in dispute. The events the applicant claims occurred and the fears he claims to have held are consistent with country information about the situations in both Iraq and Kuwait at the time of those claims. The IMR concluded that the cumulative effect of the discrimination suffered by the applicant in Iraq amounted to a well-founded fear of persecution in Iraq for reasons of his ethnicity as a Kuwaiti-born Bidoon and his Sunni Muslim religion. There is no reason to consider the applicant’s fears were not genuinely held.

20. Further, the applicant has given good reasons for his returns to Iraq in 2012 and 2014. He returned in 2012 because his [daughter] was seriously ill and he has provided medical evidence of his daughter’s illness. During his return he travelled to a remote farm in Al-Zubair where his family had relocated. In 2014 he returned following an attack on his father, again staying on the farm in Al-Zubair before relocating his family to [Country 1] where he registered them as refugees before returning to Australia. The act of relocating his family from Iraq to [Country 1] and registering them as refugees is consistent with the applicant holding a genuine fear of harm.

21. His desire to return to support his family in Iraq in the above circumstances is not surprising. The fact that he returned to Iraq does not on its own indicate his stated fear of harm in that country at the time of his protection visa application was not genuine. Other relevant factors include the passage of time since his departure from Iraq and his fears for his family. 

22. On both occasions the applicant contacted the Department prior to travelling and was advised that as a permanent visa holder he was free to return to Iraq. While the applicant’s desire to support his family appears to have at times outweighed his fear of harm in that country, I do not consider his returns indicate the claims made in his protection visa application were not correct or that his fear of harm in that country was not genuinely held. 

23. It follows that I am not satisfied the applicant provided incorrect information in his protection visa application about: the reasons he left Kuwait and Iraq (question 42 of Form 866C); his fears on return to those countries (question 43 of Form 866C); the persons he thought would harm him if he returned (question 44 of Form 866C); why he thought he would be harmed (question 45 of Form 866C); and whether the authorities could protect him on return (question 46 of Form 866C).

    Conclusion on non-compliance

24. For the reasons set out above, I have not accepted the applicant gave incorrect information at questions 19, 42, 43, 44, 45 or 46 of the Form 866C in the protection visa application. However, I have found that he gave incorrect information about his current and other citizenship at questions 20 and 21 of the Form 866C. As such, I am satisfied there was non-compliance with s.101 by the applicant in the way described in the s.107 notice and the ground for cancellation is established.

    Should the visa be cancelled?

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

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

27. The correct information: The correct information is that the applicant is an ethnic Bidoon who is stateless in Kuwait, his country of birth. The applicant was deported from Kuwait to Iraq in 1992 and was subsequently granted Iraqi citizenship.

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

29. Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: It is submitted that the incorrect information about the applicant’s Iraqi citizenship had no bearing on the decision to grant the applicant a protection visa, which was granted for reasons of the applicant’s ethnicity and religion.

30. I am not satisfied that is the case. While the IMR ultimately concluded the applicant had a well-founded fear of persecution in Iraq by reason of his ethnicity, (being a Kuwaiti-born Bidoon) and his religion (Sunni Muslim), he also found the applicant was a stateless Kuwaiti-born Bidoon resident without citizenship in Iraq who suffered severe discrimination in many areas of his life as a result. The reviewer concluded that the cumulative effect of this discrimination amounted to serious harm, making specific reference to the inability of stateless Bidoons to obtain Iraqi nationality certificates and identity cards and noting they had no legal right to remain in Iraq. While I accept the applicant’s presumed statelessness in Iraq was not the only reason he was granted the protection visa, I consider that it formed part of the basis on which he was found to have suffered from discrimination amounting to a well-founded fear of persecution.

1. The circumstances in which the non-compliance occurred: The circumstances in which the incorrect information was provided are set out in detail above. While it is clear that the applicant correctly declared his Iraqi citizenship at some stages of the assessment process, it is also clear that at other stages incorrect statements were made by or on behalf of the applicant about his Iraqi citizenship.

2. At the hearing before me it was apparent that the applicant believes he provided correct information to the Department, that he sees no contradiction between his characterisation of himself as a stateless Bidoon and an Iraqi citizen and that he has little appreciation of the significance of his Iraqi citizenship to the assessment of his protection claims.

3. The present circumstances of the visa holder: The applicant suffers from significant mental and physical health conditions including post-traumatic stress disorder and chronic depressive illness. The very significant array of medical reports produced to the Tribunal indicate the applicant has been treated for complex mental health conditions over a long period of time arising out of his past experiences of torture while imprisoned in Kuwait in the early 1990s as well as his long separation from his family, his fears for their future and his own visa uncertainty. A report from [Dr A] at [mental health services provider] dated 4 December 2020 stated that his mental health is at risk of significant further deterioration while the uncertainty about his immigration status and future continues. A further report from [Dr B] of [health services provider] states that the applicant suffers from osteoarthritis and chronic pain with reduced mobility and endurance. It notes he is experiencing themes of fear and hopelessness, low mood, anxiety and panic.

4. The applicant was in receipt of a disability support pension until his visa was cancelled in July 2019, and he has since survived on handouts from charitable organisations and members of the Iraqi community in Australia. A report from his caseworker at the [Refugee Services Provider 1] dated 26 October 2019 notes that the applicant has experienced significant financial hardship since his visa was cancelled, facing homelessness and destitution. Although he has had access to the [Refugee Services Provider 1]’s food bank and occasional emergency relief, this is not enough to meet his basic needs. Similarly a report from a caseworker at [social services provider] records that he is at risk of destitution.

5. The applicant’s wife of more than [number] years lives with [number] of their children as a refugee in [Country 1], awaiting the outcome of a partner visa application lodged in June 2013, which is still pending. A report from her treating psychiatrist in [Country 1] notes her history of trauma, her long separation from her husband and the recent death of her mother and records she is suffering from a major depressive disorder and anxiety.

6. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: Since the s.107 notice was issued to the applicant, he has acknowledged his Iraqi citizenship and continued to maintain that he is a stateless Bidoon from Kuwait.

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

8. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his visa application in 2011 and approximately 10 years have elapsed since then.

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

10. Any contribution made by the holder to the community:  It is submitted that the applicant’s current health conditions and financial hardship impact upon his ability to contribute to the community through employment, but he attends his local mosque regularly and is active within the Iraqi community in Australia. Letters of support for the applicant have been submitted by [a] Community Centre and [a] Community Association (where the applicant regularly attends Masjid).

    Other factors to be considered

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

12. If the applicant’s visa is cancelled, he will become an unlawful non-citizen and be liable to be detained. In these circumstances, he may be subject to lengthy or even indefinite detention unless granted another visa. The applicant will have very limited options to make visa applicants onshore and would be subject to an exclusion period in relation to some visas if he makes an application offshore.

13. The cancellation of the visa will not lead to the applicant’s removal from Australia, given the Tribunal’s findings below about Australia’s non-refoulement obligations. The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 provides that s.198 of the Migration Act does not require or authorise the removal of an unlawful non-citizen if they are the subject of a protection finding with respect to the country to which it is proposed they be removed. For the reasons set out below I have found the applicant satisfies the criterion in s.36(2) of the Migration Act 1958.

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

14. The Department’s Policy Guidelines set out that Australia is party to four international treaties that generate explicit or implicit non-refoulement obligations, being: the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT); the International Covenant on Civil and Political Rights (ICCPR); and the Convention on the Rights of the Child (CROC). The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.

15. As a party to the Refugees Convention, Australia has non-refoulement obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

16. In relation to the Refugees Convention, the Policy Guidelines provide that:

    Articles 32 and 33 of the Refugees Convention must be considered before making a decision whether to cancel a visa, as cancellation in Australia may lead to removal from Australia and the possibility of refoulement (that is, removal to a country where the person's life or freedom would be threatened because of a Refugees Convention reason, or removal to a country which is likely to remove the person to another country where the person's life or freedom would be threatened because of a Refugees Convention reason).

    Refoulement is prohibited under Article 33 of the Refugees Convention unless:

    -    there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or

    -    the refugee has been, by a final judgment, convicted of a particularly serious crime and also constitutes a danger to the community in which they are in.

17. In this case the delegate’s decision records that the Department did not conduct an International Treaties Obligation Assessment (ITOA) before the decision to cancel the visa was made. The delegate records that for this reason a decision to cancel the applicant’s visa would not necessarily cause him to be returned to his country of origin as an ITOA would be completed by a departmental officer prior to any decision to remove him to his country of origin.

    Country of nationality

18. For the reasons set out above, I have found the applicant is an Iraqi national and I have assessed his claims against that country.

    Claims for protection

19. It is submitted that the applicant would face a real risk of persecution in Iraq for reasons of his Sunni religion, his Bidoon ethnicity and his profile as a returnee from a Western country. In particular, he would not have the capacity to subsist in Iraq, nor access adequate medical services.

20. I accept the applicant is a Sunni Muslim who would return to an area of Southern Iraq (Al-Zubair near Basra) in which the majority of the population is Shia. I accept the submission that if the applicant were to return to Iraq, his family (who are currently living as refugees in [Country 1] while they await the outcome of the partner visa) would also return to join the applicant in Iraq.

21. At hearing I discussed with the applicant and his representative the issue of whether the applicant faced a real chance of harm on return to Iraq merely for reasons of his Sunni Muslim faith, noting that available country information indicated there had been a significant reduction in sectarian violence over the past decade. I noted that some of the country information contained in the pre-hearing submissions appeared to be incorrectly attributed to DFAT’s 2020 report, when it in fact appeared in the 2018 report. The applicant’s representative requested further time to provide additional written submissions on this issue and I granted that request. I have had regard to both the additional submissions and the earlier submissions in my consideration.

22. DFAT notes that in the aftermath of the 11 September 2001 terrorist attacks on the United States, President Bush included Iraq in his ‘Axis of Evil’ speech and the US and its allies (including Australia) removed Saddam Hussein and the Ba’ath Party from power in March 2003. However, the power vacuum resulting from Saddam’s removal and mismanagement by occupying forces led to a lengthy insurgency against US-led coalition forces and increasing sectarian tensions. Those sectarian tensions fuelled the rise of Da’esh, which culminated in Da’esh occupying 40% of Iraq’s territory by 2014. Da’esh committed numerous atrocities, particularly against minority groups, before the Iraqi government recaptured its territory with the support of the US-led international coalition and irregular Popular Mobilisation Forces (PMF). Following three years of conflict, the government declared final victory over Da’esh in December 2017, although Da’esh continues to represent a security threat within Iraq[12].

    [12] DFAT Country Information Report Iraq 17 August 2020 at 2.3-2.4

23. DFAT reports that demographic data for Iraq is unreliable, but most estimates put the country’s population at between 38 and 40 million, 97% of whom are Muslim. Shia Muslims are estimated to comprise 55-60% of the population, with Sunni Muslims comprising about 40%. Shias are predominantly located in the south and the east of the country, while Sunnis form the majority in the west and the centre.

24. In its most recent report (17 August 2020), DFAT states:

    Sectarian violence between Sunni and Shi’a has reduced substantially since the mid to late-2000s (see Recent History), but still occurs occasionally. International observers attribute the reduction in sectarian violence to an increase in self-segregation by communities (see Demography), and to conscious efforts by political leaders to remove sectarian slogans from public discourse after the military defeat of Da’esh. It was reportedly common during the lead-up to the May 2018 election to hear politicians and commentators emphasising the need to rise above sectarianism and revenge to stabilise the country. Some commentators also suggest the reduction in sectarianism reflects the Shi’a majority’s increased confidence and sense of security in the wake of victory over Da’esh[13].

    [13] DFAT Country Information Report Iraq 17 August 2020 at 2.60

25. In post hearing submissions, the applicant’s representative acknowledged that the 2020 DFAT report did not contain its own section for Sunnis, in contrast to the 2018 report. It was submitted that DFAT’s silence on the treatment of Sunni Muslims in areas where they are religious minorities does not mean that the risk of harm is reduced to one that is remote. That submission goes on to cite the 2019 UK Border Agency report.

26. That report has also been superseded by the UK Home Office’s Country Policy and Information Note Iraq: Sunni Arabs dated January 2021[14]. The current Country Policy and Information Note notes that there are reports of government forces abusing Sunnis despite the end of major military operations against Da’esh in 2017, and also that some Sunnis have experienced discrimination in regard to public sector employment as a result of de-Baathification. Both the 2019 and 2021 reports assess that in general the treatment of Sunnis by the state is not sufficiently serious that it will reach the high threshold to constitute persecution or inhuman and degrading treatment while acknowledging that some Sunnis may be able to demonstrate a real risk of persecution or serious harm depending on their personal profile or where the particular activities of a person have brought them to the government’s adverse attention or that they are regarded as having supported or having had a Da’esh affiliation[15].

    [14] Iraq - Sunni Arabs - CPIN - v3.0 - January 2021 (publishing.service.gov.uk)

    [15] Iraq - Sunni Arabs - CPIN - v3.0 - January 2021 (publishing.service.gov.uk) at 2.4.4

27. The post-hearing submission states that while it is not their submission that the applicant in this case will be perceived to be a Da’esh affiliate and persecuted for that reason, if he is returned to Iraq his family will have to return from [Country 1] and his able-bodied sons may suffer increased scrutiny by PMF units on the basis of their religion and age, which may in turn raise the risk to the applicant. It is also submitted that his religion alone may cause the surrounding communities to treat the applicant differently, as would his extended period of time living in a western country. It is submitted that the cumulative effect of these factors create a real chance of serious harm to the applicant.

28. On the basis of the country information cited above, and having had regard to the other sources cited in the applicant’s submissions, I am not satisfied that all Sunni Muslims in Iraq face a real chance of persecution merely for reason of their Sunni religion.

29. However, I accept that Sunnis continue to face some level of discrimination by Shia government officials in retribution for the Sunnis’ favoured status and abuses against Shias during Saddam Hussein’s regime[16]. I also accept that despite the defeat of ISIL in 2017, sectarian tensions persist and millions of Sunni Iraqis remain displaced from their homelands and were receiving little help rebuilding ‘from a cash-strapped Iraqi government more focused on battling the militants and the Kurds’[17]. As noted above, DFAT reports that sectarian violence between Sunni and Shi’a continues to occur although it has reduced substantially since the mid to late-2000s[18]. It also reports that government forces from a wide range of agencies frequently arrest suspects in security sweeps without warrants and hold detainees for prolonged periods without charge. Most reports of arbitrary or unlawful detention involve Sunni Arabs, particularly suspected members or supporters of Da’esh.

    [16] USSD, ‘2019 Report on International Religious Freedom: Iraq’, (Section 2), 10 June 2020

    [17] Zucchino D, ‘An ISIS is Driven from Iraq, Sunis remain alienated’

    < DFAT Country Information Report Iraq 17 August 2020 at 2.3-2.4

30. While those circumstances may not result in a real chance of persecution for all Sunnis in Iraq, when assessing whether discrimination faced by an applicant amounts to ‘serious harm’, all relevant circumstances must be taken into account, including his personal circumstances such as his age and frailty.[19] The applicant in this case has particular vulnerabilities that I consider raise his personal risk of harm in Iraq to something greater than remote:

    ·The applicant suffers from serious mental and physical health conditions including post-traumatic stress disorder, chronic depressive illness, osteoarthritis and chronic pain with reduced mobility and endurance. The medical evidence indicates he is experiencing themes of fear and hopelessness, low mood, anxiety and panic and his mental health is at risk of significant further deterioration;

    ·The applicant’s health conditions mean he has been medically unable to work since arriving in Australia in 2011 and requires ongoing medical treatment. DFAT reports that Iraq’s health indicators are generally poor after decades of conflict and economic sanctions combined with chronic underinvestment. Despite enormous need, there are very few mental health services or financial support services available to the general public and the absence of community based mental health care means the only care available is family based or in psychiatric institutions, which have been linked to inhumane treatment and degrading living conditions;

    ·The applicant originates from Basra, a Shia-dominated area of Iraq. I accept that sectarian tensions have persisted despite the defeat of ISIL and that Sunnis in Shia-dominated areas continue to face a degree of harassment and discrimination. Further, the applicant and his family have been displaced from Basra, with the applicant’s wife currently living with [number] of their children in [Country 1] where they are registered as refugees. As of July 2020, Iraq had around 1.4 million internally displaced persons, around 70% of whom have been displaced for more than three years. In its 2020 Humanitarian Response Plan, the UN reported that 2.8 million internal returnees were in need of humanitarian assistance, of which 1.2 million were in acute need. Most of Iraq’s IDPs are Sunnis[20]. Given the applicant’s serious medical issues, impecunity, long absence from Iraq and lack of family connections in that country, I consider it likely that the applicant will join Iraq’s IDP population in acute need.

    [19] AGA16 v MIBP [2018] FCA 628

    [20] DFAT Country Information Report Iraq 17 August 2020

31. In these circumstances, I consider there to be a real chance that the discrimination the applicant will face on return to Iraq for reasons of his Sunni religion may rise to the level of persecution, given the applicant’s particular vulnerabilities. In particular I consider there is a real chance the applicant will face serious harm in the form of significant economic hardship and the denial of access to basic services such as would threaten his capacity to subsist.

32. Given that DFAT indicates that there are very few mental health services or financial support services available to the general public, I find that the effective protection is not available to the applicant. For the same reasons I find that the real chance of persecution extends to all areas of the country. For these reasons I find the applicant meets the criteria set out in s.36(2) of the Act.

1. The Tribunal considers these obligations as a significant matter against cancellation.

   Other relevant considerations

2. It is submitted that the applicant’s immediate family are all currently resident in [Country 1], where they are registered as refugees. Other more distant family members in Iraq are not able to provide him with support as they have their own families to take care of.

100.   There are no consequential cancellations or Australian children to consider, although the Tribunal accepts that a consequence of cancelling the visa would be that the applicant would lose his ability to sponsor his wife and [children] who are living in [Country 1] as refugees and have been waiting for many years to join the applicant in Australia. The applicant’s eldest daughter has come to Australia on a partner visa and has given birth to a child.

EXERCISE OF DISCRETION

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

·The applicant provided the correct information about his Iraqi citizenship when he arrived in Australia and provided the Department with a copy of his Iraqi identity card. While it is clear that incorrect statements were made by or on behalf of the applicant about his Iraqi citizenship at later stages of the assessment process, I am satisfied this was the result of confusion about his status in Kuwait versus Iraq rather than any deliberate attempt to mislead the Department.

·For the reasons set out above I have found that the applicant believes he provided correct information to the Department. He sees no contradiction between his characterisation of himself as a stateless Bidoon from Kuwait and a person who later gained Iraqi citizenship and has little appreciation of the significance of his Iraqi citizenship to the assessment of his protection claims.

·While the IMR was under the misapprehension that the applicant had not been granted citizenship in Iraq, this was not the only basis on which he was found to be owed protection; rather the IMR also found he was owed protection for reasons of his ethnicity (being a Kuwaiti-born Bidoon) and his religion (Sunni Muslim), in light of country information about the situation in Iraq at that time. Those matters are not in dispute and I consider the IMR may have come to the same decision had the correct information been known to him.

·The applicant’s returns to Iraq in 2012 and 214 occurred in the context of his understandable desire to be reunited with his wife, young children and parents during the severe illness of his daughter and later his father. He sought prior advice from the Department about his ability to travel before each return and he has not returned to Iraq or otherwise seen his family since 2014.

·The applicant suffers from significant mental and physical health issues as a result of his imprisonment and torture in Kuwait, his traumatic experiences in Iraq, the cancellation of his visa and the long period from which he has been separated from his wife and children. His health conditions have meant that he has been unable to work since his arrival in Australia and he has experienced periods of homelessness and destitution.

·For the reasons set out above I have found the applicant continues to face a real chance of persecution if he returns to Iraq for reason of his Sunni religion, in particular serious harm in the form of significant economic hardship and the denial of access to basic services such as would threaten his capacity to subsist.

·While there are no consequent cancellations or Australian children to consider, a relevant consequence of cancelling the visa would be that the applicant would lose his ability to sponsor his wife and children who have been waiting for eight years for their visa application to be processed so that the family can be reunited in Australia. In the meantime, the family are living in [Country 1] where they are registered as refugees.

CONCLUSIONS

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

DECISION

103.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Alison Murphy
Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)     purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101Visa applications to be correct

A non‑citizen must fill in or complete his or her application form in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)     giving particulars of the possible non‑compliance; and

(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)      stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)      requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.