1919254 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the Protection visa of an applicant who arrived in Australia in 2010 claiming to be a stateless Bidoon born in Kuwait and residing in Iraq. The applicant was initially granted a Protection visa in 2011 after a reviewer found he met the definition of a refugee due to a well-founded fear of persecution in Iraq based on his ethnicity and religious affiliation. In 2014, the Department requested documents to verify the applicant's identity, and while a Kuwaiti birth certificate was deemed genuine, an Iraqi National Identity card was found to be counterfeit. Subsequently, in 2016, the applicant applied for Australian citizenship, providing a copy of the Iraqi document, which the Department had previously assessed as counterfeit. In 2018, the Department issued a Notice of Intention to Consider Cancellation of the applicant's visa, citing concerns about his identity.

The primary legal issue before the Tribunal was whether the delegate was satisfied that the ground for cancellation under s 116(1AA) of the Migration Act 1958 (Cth) existed, specifically whether the applicant's identity could be established. This required the Tribunal to consider the conflicting information provided by the applicant regarding his name, date of birth, and the authenticity of his identity documents, as well as the Department's assessment of these documents. The Tribunal also had to consider the applicant's claims of statelessness and fear of persecution in Iraq.

The Tribunal reasoned that while inconsistencies and contradictions existed in the applicant's statements and documentation over time, particularly concerning his name and date of birth, and the authenticity of the Iraqi identity card, these did not definitively establish that the ground for cancellation was met. The Tribunal noted that the applicant's Kuwaiti birth certificate was found to be genuine, and that the biodata information taken upon his arrival in 2010 recorded his name as stated in his citizenship application and his date of birth as [Date 1]. Furthermore, the Tribunal observed that the letter advising the applicant that his Iraqi identity card was counterfeit was not included in the Department's records provided to the Tribunal, and the applicant claimed he never received it. Given these considerations, the Tribunal was not satisfied that the ground for cancellation under s 116(1AA) had been established.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.