2001485 (Refugee) - [2023] AATA 1353

2001485 (Refugee) [2023] AATA 1353 (16 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jeremy Bayliss (MARN: 1383248)
CASE NUMBER:  2001485
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Nicole Burns
DATE:16 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 16 February 2023 at 11:23am

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – not all questions answered and incorrect information given in visa application – previous name known by not declared – applicant used Iraqi name only after father obtained Iraqi ID for him – citizenship – stateless Faili Kurd or Iranian citizen, and eligibility for Iraqi citizenship – Iranian driver’s licence obtainable only if holding national identity card – vague description of refugee cards claimed to have held – departure on fraudulently obtained genuine Iraqi passport – fraud and security features at the time – return visit on Australian titre de voyage – Iraqi citizenship regained after protection visa granted – country information – Iranian driver’s licence obtainable by registered refugees – no real state of satisfaction that grounds for cancellation made out – member of family unit – automatic cancellation of now adult son’s visa with no jurisdiction to review – criminal history not relevant – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140, 424A, 438
CASES
Sheptitskaya v MIBP [2015] FCCA 159
SZEEM v MIMIA [2005] FMCA 27
Zhao v MIMA [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa because they concluded the first named applicant (hereafter the applicant) had provided incorrect answers in certain respects in relation to his protection visa application in breach of s 101 of the Act. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
The second named applicant is the applicant’s (now adult) son, [the second applicant]. He was a dependent on his father’s protection visa application, which was granted on 4 May 2011.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the [second named applicant].
The applicant is a [Age]-year-old married man from Iran. According to Departmental records, [in] 2010 he arrived on Christmas Island as an irregular maritime arrival having left Iran earlier (via [Country 1]). He was accompanied by his wife, daughter and son. He was granted a protection visa on 4 May 2011 based on his alleged status as a stateless Faili Kurd, as were his wife and daughter (and his son, [the second applicant] as his dependent, as noted). The applicant’s second son, [Mr A], was born in Australia on [Date] and is an Australian citizen.
The applicant made an application for Australian Citizenship on 5 June 2018, which is pending, as is his Resident Return (Subclass 155) visa application lodged on 13 March 2018. He was interviewed by the Department’s identity section on 26 June 2018, following these applications.
The applicant’s protection visa was cancelled on 3 January 2020, the subject of this review.
The Tribunal notes there are three related cancellation cases, constituted and determined by the same Member around the same time: that of the applicant’s wife ([Ms B]),[1] his daughter ([Ms C])[2] and brother ([Mr D]).[3] His brother came to Australia by boat a few weeks earlier than the applicant, applied for and was granted protection, and also had his protection visa cancelled.
[1] AAT No. 2001551.
[2] AAT No. 2001552.
[3] AAT No. 1933029. A hearing was held in his case on 13 July 2022.
The applicant, his wife and daughter appeared before the Tribunal on 29 June 2022 where they gave evidence and presented arguments about the issues in their respective cases, in a combined hearing. The Tribunal also received oral evidence from the applicant’s youngest son, [Mr A]. The applicant’s older son, [the second applicant], did not attend.
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. The representative attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Non-disclosure certificate
As a preliminary matter the Tribunal notes it has before it the applicant’s Departmental file relating to the cancellation of his protection visa.[4] The delegate has placed restrictions on some of the material contained on the cancellation file given to the Tribunal by the Department by issuing a certificate under s 438 of the Act, dated 19 February 2020. That section permits the Minister to certify that the disclosure, otherwise than to the Tribunal, of any matter contained in a document would be contrary to the public interest for any reason specified in the certificate. The Tribunal is satisfied that it states a valid ground of public interest immunity and adequately explains how the disclosure of the information would not be in the public interest. Accordingly, the Tribunal considers the certificate valid.
[4] [File number]
Where a certificate is issued under s 438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.
The Tribunal decided to exercise its discretion to disclose some of the information relevant to the review.
Broadly, as discussed at hearing, the information covered by the certificate includes findings of the Department about the applicant’s identity in the form of an identity assessment report (aspects of which was included in the NOICC, and some detailed in a letter sent to the applicant for comment pursuant to s 424A of the Act after the hearing); correspondence between the Department and VicRoads about the applicant’s Iranian driver’s licence; Departmental correspondence, including with the then Minister of Immigration’s office about the second named applicant’s criminal and gang related activities; and a copy of the second named applicant’s police criminal history report dated 22 September 2017.
Information about the applicant’s claimed identity and nationality, as well as the applicant and his representative’s responses to that information are discussed in more detail below when considering whether the grounds for cancellation are made out in this case. Some of the information the Tribunal considers positive to the applicant’s case, for example the correspondence from VicRoads, which is discussed further below.
The information relating to the second named applicant’s criminal history in Victoria and related matters is not relevant given the Tribunal does not have jurisdiction to review his case, as his visa was cancelled under s140(1) of the Act, as noted. It may have been relevant to some degree if the Tribunal considered the discretionary factors in deciding whether or not to cancel the applicant’s visa, however for the reasons below the Tribunal is not satisfied the grounds are made out and therefore it was not necessary to consider the discretion as to whether the cancellation power should be exercised.
Apart from in these ways – including in the Tribunal’s letter – the information which is subject to the certificate has not been provided or otherwise disclosed to the applicant by the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
Section 101 of the Act provides that a non-citizen must fill in or complete his or her application in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
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.
As set out in the delegate’s decision record (a copy of which the applicant provided to the Tribunal on review), in this case the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) dated 19 August 2019 which advised that his visa may be cancelled under s 109 because of concerns that he did not comply with ss 101(a) and 101(b) of the Act. He was advised to respond in writing. His representative provided to the Department a written submission dated 30 August 2019 in response.
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.
NOICC particulars: alleged non-compliance with s 101(b)
The non-compliance identified and particularised in the s 107 notice in relation to s 101(b) was that the applicant had provided incorrect information in relation to his protection visa application by stating that he (and his wife and children) was stateless, whereas subsequent information before the delegate led them to conclude he was an Iranian citizen, and eligible for Iraqi citizenship at the time of the protection visa application.
Specifically, the notice recounts that as part of his Refugee Status Assessment (RSA) the applicant indicated to the Department (at interview and in an RSA statement dated 6 February 2011) that he was a stateless Faili Kurd, born in Baghdad, but his parents and siblings were exiled from Iraq during Saddam Hussein’s regime and he feared returning to Iran and Iraq. Further, he stated that the Iraqi government does not consider him or his family Iraqis and they have no documentation to prove as such; he is unable to go to Iraq to obtain citizenship; he is not entitled to leave Iran without permission because he does not hold any ID documents and is unable to get any; his family held a White card in Iran but this was destroyed when their boat [arrived at] Christmas Island; and the White card did not entitle them to education, health, to work or buy property, and only identified them as Faili Kurds. He described difficulties and restrictions he and his family members faced in Iran as a result, including difficulties finding work and the Basij and/or police checking whether he held an ID card in order to work. The applicant claimed to fear persecution in Iran as a stateless person, Faili Kurd and because he left with a false (Iraqi) passport for which the police would detain, imprison or execute him on return, as he would be considered a spy.
On 9 March 2011 an RSA delegate found the applicant (and his wife and two children: [the second applicant] and [Ms C]) were refugees and on 1 May 2011 the applicant was able to apply for a protection visa. In doing so he completed the relevant form (Form 866C) answering questions about (among other things), his citizenship status, why he left Iran, what he fears may happen if he goes back there, and why,[5] as set out above.
[5] Questions 4, 19, 20–23, and 42–46 of Form 866C.
On the basis of this (and other relevant) information the applicant was granted a protection visa on 4 May 2011.
However, subsequently, as recorded in the NOICC, the delegate began to doubt the applicant’s claims to have been stateless, and considered he was an Iranian citizen (born in Iraq) when he applied for protection. Also, that he was eligible to reclaim his Iraqi citizenship at that time.
The delegate reached the conclusion the applicant was not stateless and was an Iranian citizen at the time he applied for protection based on the following information and considerations, detailed in the NOICC and summarised below.
Iranian driver’s licence
·At his entry interview on [date] 2010 the applicant purportedly stated that he no longer held an Iranian driver’s licence and the last one issued to him was once only in Iran in 2000 – a document issued to ‘Iraqi people’. The applicant purportedly advised the officer at an interview with the Department’s identity section on 26 June 2018 that he provided a photocopy of his Iranian driver’s licence to VicRoads to obtain a full driver’s licence.
·Given country information[6] indicates from mid-2008 an Iranian National Identity Card (NID), which all Iranian nationals over 18 must hold, is compulsory for obtaining a driver’s licence (among other things), the delegate concluded the applicant was required to provide an original of his 10 digit Iranian NID card to obtain his Iranian driver’s licence. They noted the driver’s licence is valid for 10 years.
·The relevant Victorian authorities verified that the applicant provided his original Iranian driver’s licence which listed a 10 digit NID number[7] to VicRoads on 3 September 2012 (not a photocopy) to the Department on 3 September 2012.
·As the applicant held an Iranian driver’s licence issued in his name which bears his 10 digit Iranian NID number, it appeared to the delegate he was an Iranian citizen and not stateless at the time he applied for protection.
Iranian White card
·The applicant was unable to provide a physical description of the Iranian White card he was purportedly issued in Iran at the identity interview and did not know what information was recorded on the back of the card. Additionally, his claim that he obtained the card in 2007 and it was renewed every two years is inconsistent with country information[8] indicating the cards were first issued to refugees in Iran in 2002 and renewed on a yearly basis.
·The applicant also purportedly stated he did not have a bank account in Iran because he was stateless; however, one of the entitlements recorded on the back of the card is that holders are entitled to open a bank account in Iran.
·This led the delegate to consider the applicant did not hold a White card, most likely because he was an Iranian citizen.
Iraqi citizenship eligibility
[6] DFAT Thematic Information Report – Faili Kurds in Iraq and Iran, 3 December 2014, at 3.47.
[7] No. [deleted].
[8] DFAT Thematic Information Report – Faili Kurds in Iraq and Iran, 3 December 2014 at 3.47.
Additionally, as set out in the s 107 notice, the delegate reached the conclusion the applicant was eligible for Iraqi citizenship at the time he applied for protection based on the following considerations, in summary:
·At his identity interview on 26 June 2018 the applicant provided an Iraqi National Civil ID identity card (INCIC) issued [in] 2016 and declared his Iraqi name as ‘[Iraqi name]’ (born [Date]). He claimed to have obtained Iraqi citizenship after the grant of his protection visa at that interview. However, the delegate noted that the Iraqi Specific Purpose Authorisation letter dated [in] 2015 submitted by the applicant to the Department as part of his Australian citizenship application states the sole purpose of the letter is to give permission for his father to apply for and receive an Iraqi ID card on his behalf, not Iraqi citizenship.
·Country information[9] indicates that all Iraqi nationals must have an INCIC; on
1 January 2016 the new Iraqi national identity card was introduced which contains high security features, however at the time these were only issued in Iraq since the technology was not extended to overseas Iraqi embassies; and people applying from abroad would be issued the old style card. Based on this the delegate considered it was ‘highly likely’ the applicant did not provide his Iraqi citizenship certificate to the Department as it would disclose that he was an Iraqi citizen prior to 14 March 2016.
·The applicant also provided a copy of his parents’ Iraqi National Civil ID cards and certificates of Iraqi citizenship issued [in 2010]. The delegate notes that Faili Kurds who lost their citizenship under Saddam Hussein’s regime are entitled to have their Iraqi citizenship returned to them, including those born outside Iraq, according to the Iraqi Nationality Law 2006, and the requirements to apply – according to the Iraqi Ministry of Foreign Affairs website – include a copy of their father or mother’s Iraqi civil ID card and nationality certificate and self-declaration. The delegate considered this indicates the applicant was eligible to hold Iraqi citizenship through his parents from [2010].
[9] Norwegian Country of Origin Information Centre, Landinfo,
As such, the delegate considered that the applicant provided incorrect information by:
·Answering ‘no’ to question 21 in Form 866C which asked if he holds any other citizenship, or whether he is a national of any other country.
·Answering ‘no’ to question 22 in Form 866C about whether he has a right to reside in, whether temporarily or permanently any country(s) other than his country(s) of nationality or former country(s) of habitual residence.
·By stating he does not have any documents to prove his identity or citizenship rights in answer to question 23 of Form 866C which asked if stateless, how, when and why he lost his citizenship.
·By stating because Iraq does not consider him an Iraqi citizen and not having Iranian citizenship, he would be persecuted by the Iranian government if found to have left the country in answer to question 42 of Form 866C.
·By claiming to fear persecution as a stateless Faili Kurd in answer to question 43 of Form 866C which asked what he feared may happen if he goes back to Iran.
·By claiming to fear persecution by the Iranian police because he left Iran holding a false passport and as such would be detained or executed and considered a spy, in answer to questions 44 and 45 of Form 866C, which asked who he thinks may harm or mistreat him and why, if he goes back to Iran.
·By stating the Iranian authorities do not care whether he and his family exist and they do not have any identity documents which state they live in Iran or that his children were born there. Also the applicant stated he cannot relocate anywhere in Iran because of a lack of identity documents. These answers were provided in response to question 46 of Form 866C which asked whether the applicant thinks the authorities of Iran can and will protect him if he goes back there, and if not, why.

The Tribunal notes the delegate omitted to mention whether the applicant also provided an incorrect answer to question 19 (in addition to the above), which asks his citizenship at birth. She appears to have left this out in this part of the s 107 notice.
NOICC particulars: alleged non-compliance with s 101(a)
The non-compliance identified and particularised in the s 107 notice in relation to s 101(a) related to the applicant leaving blank the field to provide an answer to question 4 of Form 866C – which asked what other names he had been known by, and question 20 – which asked his current citizenship. This is because in respect of other names, the applicant had stated at his identity interview that although his Iranian Kurdish name is ‘[applicant name]’, his Iraqi name is ‘[Iraqi name]’ (born [date]).
With respect to his (then) current citizenship, the delegate considered he did not provide an answer to this question (question 20), yet based on the above reasoning in respect to obtaining an Iranian driver’s licence which he could only obtain if he held an Iranian NID (the delegate reasoned), they suspected he was an Iranian citizen at the time of the protection visa application (and therefore should not have left this field blank).
As such, the delegate concluded the applicant did not comply with s 101(a) because he failed to provide answers to questions 4 and 20 of Form 866C.
Response to the NOICC
In his written submission provided in response to the NOICC the representative states that the applicant denies the alleged non-compliance, maintaining that at the time of the protection visa application he was stateless: neither an Iraqi nor Iranian citizen.
With respect to inconsistencies with his name, the representative explains that the applicant was not known by any other name, and never went by any other name. He only went by his [Iraqi name] after his father obtained an Iraqi ID card for him as the first step in the process for him to regain his Iraqi citizenship (in 2016). This is evidenced by his name listed as ‘[applicant name]’ in a copy of his son, [Mr C]’s Australian birth certificate provided (who was born in [year]). When the applicant applied for protection he had never been known or went by any other name and therefore answered question 4 of Form 866C correctly.
With respect to his citizenship status (or lack of) at the time he applied for protection, the representative submitted that at that time, and to this day, he is not a citizen of any country, which is why he left question 20 – which asked his current citizenship – blank.
Regarding the assertion by the delegate in the s 107 notice that the provision of the applicant’s original Iranian driver’s licence to VicRoads in September 2012 (to obtain a Victorian driver’s licence) confirms he was an Iranian citizen when he applied for protection, the applicant instructs that prior to 2008 stateless Faili Kurds in Iran were permitted to be issued with Iranian driver’s licences, which is when he was issued the licence.
The representative argues that the fact he was issued a driver’s licence by the Iranian authorities is not evidence he holds Iranian citizenship, particularly given prior to 2008 as a documented stateless Faili Kurd he could obtain an Iranian driver’s licence.
Additionally, the applicant instructs that he did not provide an original copy of his Iranian driver’s licence to VicRoads, as he had lost all of his possessions when the boat[10] he was on [arrived at] Christmas Island [in] 2010, including an original copy of his driver’s licence. He had a copy of that licence, which he presented to the VicRoads case officer when applying for a Victorian driver’s licence, as he stated during his identity interview on 26 June 2018.
[10] [Reference deleted]
The applicant also states (according to the representative in his submission) that the VicRoads officer did not take a copy of his Iranian driver’s licence and he was not requested to provide an English translation of the document at that time. As well, he disputes the allegation that the licence bears his 10 digit Iranian NID number: he does not know where that number referred to by the delegate comes from. The representative requested a copy of the licence and accompanying English translation. At the Tribunal hearing the representative indicated he never received these documents.
With respect to the allegation the applicant was the holder of Iraqi citizenship when he applied for protection based on his parents being able to obtain their Iraqi citizenship in [2010] (and that he was also able to at that time), it is submitted the applicant does not dispute that his parents were able to obtain their Iraqi citizenship then, but argues it was not the case he obtained Iraqi citizenship at that time. When the applicant asked his parents why they did not apply for their children to also receive Iraqi citizenship at that time, they told the applicant it was a requirement that all applicants appear in person in Iraq which they did not want given the civil unrest there. They planned to assist their children apply for Iraqi citizenship at a later date when it was safer to do so, but this did not eventuate. Therefore, the applicant did not provide an incorrect answer to question 21 when he applied for protection because he did not hold citizenship and was not a national of any country, the representative contends.
The applicant was not aware prior to lodging his protection visa application that he was eligible to apply for Iraqi citizenship and was not aware his parents had obtained Iraqi citizenship for themselves; it is further submitted.
Additionally the representative advised that the applicant contacted the Iraqi Embassy in Canberra in 2015 to enquire about how to obtain his Iraqi citizenship certificate; was informed he could provide a letter for his father to obtain his Iraqi ID card on his behalf, which he since obtained (and provided to the Department); however he would need to travel to Iraq to obtain citizenship and he applied for the Subclass 155 visa in order to do so, but did not have the opportunity to do so.
The representative submits the grounds for cancellation are not made out in this case; that the Department relied on a series of assumptions leading to a finding that the applicant ‘appears’ not to have been stateless at the time of the protection visa application and that therefore he provided incorrect information. The applicant’s evidence casts doubt on this accusation, he argues.
Further, the representative noted there is no evidence before the Department that the applicant has acquired an Iranian passport, or that he held any Iranian documents (other than an Iranian driver’s licence for which he provided a plausible explanation for how he came to hold that licence); and there is also no evidence his wife or children have a shenasnameh (Iranian birth booklet), for example.
Supporting documents the applicant provided to the Department, in addition to [Mr A]’s Australian birth certificate (born on [Date]), included a statement from a consultant psychiatrist and manager from [Organisation 1] about his wife’s mental health, and a letter from the principal of his daughter’s high school.
Decision to cancel
On 3 January 2020 the delegate decided to cancel the applicant’s visa. In the decision record the delegate noted the matters set out in the s 107 notice and concluded that the applicant did not comply with s 101(b) of the Act by providing incorrect answers to questions 19, 21–23, and 42–46 of Form 866C in his application for a protection visa.
The delegate concluded there was inadequate evidence to demonstrate the applicant and his family held Iraqi citizenship at the time he applied for protection. They also found the grounds to cancel in respect of s 101(a) in failing to answer questions 4 and 20 were not made out.
Having found that grounds for cancellation existed, the delegate then considered whether the visa should be cancelled, including considering the representative’s submissions about such matters. The delegate recorded that, having weighed all the relevant factors, she was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.
Review of the cancellation decision
On review the representative provided to the Tribunal a written submission dated 19 May 2022 in which he reiterates that the applicant did not provide incorrect information to the Department regarding his status as a stateless Faili Kurd at the time he applied for protection. Also, that the evidence presented by the delegate (which is refuted by the applicant) does not demonstrate positively or with any degree of certainty that the applicant provided incorrect information in their protection visa application. He also provided submissions related to the applicant’s current circumstances (and that of his family including his Australian citizen son) relevant to the discretionary factors.
Other material provided to the Tribunal included letters from counsellors from [Organisation 1] in respect of the applicant’s wife (dated 10 May 2022), daughter, [Ms C] (dated 9 May 2022), and son, [Mr A] (dated 12 May 2022).
At hearing the Tribunal discussed with the applicant the relevant contents of the s 107 notice. He reiterated that he is not an Iranian citizen – now or at the time he applied for protection. He said he visited Iran in 2013 holding an Australian travel document in the name of ‘[applicant name]’ with an Iranian visa obtained through the Iranian embassy in Canberra, which would not have been granted if he was an Iranian citizen.
The applicant explained that he was born in Iraq and forced to leave in around 1982 under Saddam Hussein’s rule. He and his family went to Ilam in Iran where he lived until he came to Australia in 2010. He used to have an Iranian Green card and then after a few years a White card, issued to refugees in Iran, which entitled him to buy a car and other assets but not property. When asked he said he was not aware whether the card entitled him to open a bank account, but he did not have one.
In Iran the applicant said he worked as [an occupation]. Neither he or his parents or [sisters] or [brothers] ever obtained Iranian citizenship. His other sister, [Ms E], was able to, based on her marriage to an Iranian citizen. Presently his parents live in Iraq, travelling to Iran frequently to visit their children who remain there. They were able to obtain Iraqi citizenship after Saddam Hussein’s regime fell and the new Iraqi government offered Faili Kurds who previously had Iraqi documents to prove as such and regain their Iraqi citizenship. His parents did this in [2010], which was around the same time he came to Australia. The applicant said at that time he did not care if they could have Iraqi citizenship or not because of the problems – including terrorism – in Iraq.
The applicant said he was able to obtain an Iraqi National Civil ID card (issued [in] 2016) because his name – through his parents – had been registered in a file in Sydney, through the Iraqi embassy: his father then applied for it and obtained it for him in Iraq.
The applicant explained that his Iraqi name is [Iraqi name] but he used the name [applicant name] when he moved to Iran, to sound more Iranian, less Arabic or Kurdish, which many Faili Kurds did in Iran.
With respect to his Iranian driver’s licence (in the name ‘[applicant name]’), the applicant told the Tribunal that many members of the Iraqi community in camps in Iran were eligible to have a driver’s licence which was valid for two years, and then they could renew it. He explained in Iran each community has different licences: his was a licence given to Iraqi refugees in Iran, not even considered as an ID there.
He said he gave a copy of the original licence to VicRoads when applying for a Victorian driver’s licence. The officer at VicRoads then gave him a full licence, without taking a copy or asking for a translation, which is why he was surprised the delegate mentioned this. The applicant said he brought the original licence with him when he left Iran, but it was lost along with all of his other possessions when their boat [arrived in 2010]. He had left a copy of the licence with his parents in Iran who subsequently sent him the copy.
Regarding the delegate considering the 10 digit number on the licence was referring to his Iranian NID number, the applicant said he has no idea about that number and what it was referring to.
After the hearing the Tribunal invited the applicant to comment on potentially adverse information in his case in a letter dated 29 August 2022 pursuant to s 424A of the Act (with a copy of the non-disclosure certificate attached). The representative provided a written response dated 2 September 2022, as well as a translated copy of the applicant’s brother [Mr F]’s Iraqi national ID card (issued [in] 2021, valid until [2031]), considered further, below, where relevant.
Findings about the alleged non-compliance
The Tribunal has considered the information contained in the NOICC, the applicant’s and his representative’s response to the notice, the applicant’s and his wife and daughter’s oral evidence to the Tribunal, the written submissions before the Tribunal, the applicant’s response to the Tribunal’s s 424A letter, and other relevant evidence before it to determine whether the ground for cancelling the visa is made out. In doing so, the key question to consider is whether there is sufficient evidence to reach a real state of satisfaction that incorrect information was provided. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context. However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal). In Zhao v MIMA (Zhao), the Court stated:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show because why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[11]
[11] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
While that case was concerned with cancellation under s 116, the Court’s comments are equally applicable to s 109 cancellation, as in this case.
Bearing this case law in mind, the matters set out in the s 107 notice (and the basis for the allegations), as well as the submissions and the applicant’s evidence in this case (and that of related family members), the Tribunal makes the following findings about the alleged non- compliance with s 101(b) of the Act.
At issue is whether the applicant was stateless, and not an Iraqi or Iranian citizen, at the time he applied for protection, and depending on the answer to that question, whether he provided incorrect information in his protection visa application in these and related respects.
Iranian citizenship
Iranian driver’s licence
As mentioned, the NOICC records that the delegate considered that the applicant provided incorrect information about his (lack of) Iranian nationality, considering he was an Iranian citizen at the time he applied for protection because he had an Iranian driver’s licence, which contained an NID number, indicating he possessed an Iranian NID card, which are only issued to Iranian citizens. The delegate refers to country information indicating that from mid-2008 an Iranian NID is compulsory for obtaining a driver’s licence, and that the applicant therefore was required to provide an original of his 10 digit Iranian NID card to obtain his Iranian driver’s licence.
It is submitted the fact the applicant was issued a driver’s licence by the Iranian authorities is not evidence he holds Iranian citizenship, particularly given it was issued to him in Iran before 2008, when stateless Faili Kurds (and other Iraqi refugees) could obtain them without having to have an NID. At hearing the applicant explained there were different kinds of licences issued to people living in Iran, and the one he obtained was for Iraqi refugees living there. He has never obtained an NID (and is not Iranian) and has no idea what the number on the card relates to, which the delegate considered was his NID number.
The Tribunal notes the applicant has consistently claimed to have obtained an Iranian driver’s licence prior to 2008, including at his identity interview in June 2018. He told the Tribunal it was a licence stateless Faili Kurds/Iraqi refugees could obtain, without being Iranian citizens. Country information – including that referred to by the delegate in the s 107 notice (and decision record)(cited earlier) – indicates that the requirement for Iranian driver’s licences to have an NID number was only introduced in 2008.
Whilst the delegate noted in the decision record an Iranian driver’s licence may be issued to a resident of Iran such as a registered refugee (as the applicant has claimed in response to the s 107 notice and at hearing), she did not accept this applied in the applicant’s case. It appears she did so because she found his evidence at the identity interview describing the White card vague and in some respects inconsistent with country information, for example about being able to open a bank account. As a result, she did not accept the applicant’s claims to have held a White card, and consequently found he was an Iranian citizen, not an Iraqi refugee or stateless living in Iran: therefore, she did not accept the applicant’s claim to have obtained this kind of licence, granted to a registered refugee/non-Iranian citizen prior to 2008.
The Tribunal notes three main groups of Faili Kurds live in Iran, including registered refugees who are amayesh card holders (both Green cards and White cards).[12] These are issued to Iraqi refugees resident in Iran and their issue is inconsistent with them being Iranian nationals. The applicant has consistently claimed, from his arrival in Australia to date, that he had a Green card and then a White card in Iran. (His younger brother ([Mr D]) has also consistently claimed as such in his evidence to the Department and Tribunal in his case.)
[12] DFAT Country Information Report, Iran 14 April 2020 at 3.23
Even if the applicant may have struggled to describe the White card, including information contained on the back of the card regarding the card holder’s entitlements, at his identity interview, this does not, in the Tribunal’s view, undermine his claims to have been a registered refugee in Iran, to have held a White card, and more broadly to have been stateless, and not an Iranian national. There could have been several reasons for his vagueness about the White card at the identity interview, including the fact it took place almost eight years after he arrived in Australia, and [the circumstances of his arrival in Australia].[13]
[13] [Reference deleted]
Notes of the applicant’s entry interview [in] 2010 contained on the Department’s cancellation file indicate that he stated at that time – shortly after his arrival – to have had a Green card in Iran, now White (issued about four years prior), and when asked if he had any identity documents he notes he had a White card and driver’s licence (from about 10 years prior), only issued to Iraqi/Iranian people. He adds that he does not have it anymore. This is consistent with his account before the Tribunal and in response to the s 107 notice to have had a White card and driver’s licence in Iran, but lost them when the boat he was on [arrived at Christmas Island].

In the s 107 notice (and decision record) the delegate states the relevant Victorian authorities verified that the applicant provided his original Iranian driver’s licence which listed a 10 digit NID number to VicRoads on 3 September 2012 (not a photocopy) with the Department on 3 September 2012. The delegate then reasons that as the applicant held an Iranian driver’s licence issued in his name which bears his 10 digit Iranian NID number, it appeared he was an Iranian citizen and not stateless at the time he applied for protection.
The applicant disputes the allegation that the licence bears his 10 digit Iranian NID number and maintains that he only provided a copy of his Iranian driver’s licence to VicRoads – obtained from his parents after the original he was carrying en route to Australia was lost when their boat [arrived at Christmas Island]. At hearing the applicant said the VicRoads case officer did not even take a copy of his Iranian licence, and did not ask him to provide a translation, which is why he was surprised when he read that he had provided an original translation to VicRoads in the s 107 notice. At hearing the representative said his request to the delegate to provide a copy of the licence and accompanying English translation went unanswered.
The Tribunal notes the applicant has consistently claimed to have presented a copy of that licence to the VicRoads case officer, including at his identity interview on 26 June 2018, in response to the s 107 notice, and before the Tribunal. His explanation that the original was [lost in 2010] is plausible: it is not in dispute [the circumstances of his arrival in Australia] and he and his family were on that boat, as acknowledged by the delegate.
The delegate in their decision record (and s 107 notice) notes that VicRoads had verified that the applicant provided his original Iranian driver’s licence, not a photocopy, and references information about procedures on the VicRoads website, as well as receiving a telephone call from a VicRoads staff member who advised about an original overseas driver’s licence requirement.
The Tribunal located email correspondence from VicRoads contained on the Departmental file (subject to the non-disclosure certificate) which confirms that the applicant had provided a driver’s licence from Iran (No. [deleted]) as proof of his driving history to obtain a full driver’s licence on 3 September 2012: but there is no mention that the original was provided or that the driver’s licence number was an Iranian NID number.
The Departmental file also contains a note about the delegate being advised about VicRoads’ procedures for verifying overseas driver’s licences in a telephone call made on 23 October 2019. This included advice from the VicRoads officer (as well as publicly available information) that the applicant’s (for a licence) original overseas driver’s licence is sighted by their overseas licence verification team, who are trained to recognise the relevant country driving requirements and through which authority the licence is issued, and that the applicants must provide an accredited NAATI translation of the licence with their application at interview. This advice and information appear to have led the delegate to find that VicRoads would not accept a photocopy of an Iranian driver’s licence in support of the application for a Victorian driver’s licence. However, there is nothing on the Departmental file confirming whether these procedures were followed in the applicant’s case, or even that VicRoads have a translated copy of the licence. There is no indication VicRoads shared as such with the Department on the Departmental file, and the delegate did not respond to the representative’s request for a translated copy of the licence. Whilst it may be unusual for a VicRoads officer to issue a Victorian driver’s licence based on an untranslated copy of an overseas driver’s licence as the applicant claims, the Tribunal is unable to discount the prospect on the evidence that it is possible.
For these reasons the Tribunal is not satisfied the provision of the applicant’s Iranian driver’s licence to VicRoads establishes the applicant has Iranian nationality.
Information related to the applicant’s brother, [Mr F]
As noted at hearing there is information contained on the Department’s cancellation file that, at first glance, may support the delegate’s finding that the applicant is an Iranian citizen, and therefore provided incorrect information in this (and related) respect in the protection visa application. This information was not referred to at all in the NOICC (and is the subject of a non-disclosure certificate, as noted earlier, however the Tribunal exercised its discretion and decided to invite the applicant to comment on such information.) Nonetheless, whilst the Tribunal is restricted to consideration of whether there was non-compliance in the manner particularised in the s 107 notice,[14] it is not precluded from considering evidence relevant to the non-compliance, as particularised, that was not referred to in the s 107 notification.[15]
[14] SZEEM v MIMIA [2005] FMCA 27 (Smith FM, 27 January 2005).
[15] Sheptitskaya v MIBP [2015] FCCA 159 (Judge Street, 27 January 2015) at [10]–[16].
This information was set out in a s 424A letter[16] to the applicant inviting his comments, as follows. Specifically, that at the applicant’s identity interview with the Department on 26 June 2018 he purportedly said his brother, [Mr F], had visited [Country 2] from Iran in 2014 and voluntarily returned to Iran via Iraq. The Department contacted the [Country 2] authorities who advised that [Mr F] (born on [Date] in Baghdad) had voluntarily returned to Iran [in] 2017 with a ‘return home certificate’ issued to him by the Embassy of Iran. Additionally, the [Country 2] authorities advised that during his interview [Mr F] stated that his family was forced to leave Iraq in 1982 and resided in Iran since; that they all became Iranian citizens; that he resides in Iran with his parents and five siblings; and two brothers reside in Australia.
[16] Dated 29 August 2022.
In response to the Tribunal’s letter setting out this information (and explaining the relevance and consequence to the review) the applicant instructs (via the representative in his submission), that he spoke to his brother [Mr F], who confirmed he did inform the [Country 2] authorities that their family was expelled from Iraq to Iran by the Saddam Hussein regime. However, he denies that he ever told the [Country 2] authorities that he and all family members had obtained Iranian citizenship.
At hearing when this issue was discussed, the applicant said [Mr F] did travel to [Country 2] in the past, but is not Iranian, but Iraqi (having regained Iraqi citizenship in 2021). He said, as noted, that the only family member who is Iranian is his sister, [named], who obtained citizenship via marriage.
The Tribunal has considered this information from the [Country 2] authorities alleging the applicant’s brother, [Mr F], had advised that he and his family members had obtained Iranian citizenship, and the applicant’s response refuting that was the case.
Whilst such information raises a concern about the applicant’s alleged statelessness (and specifically, lack of Iranian citizenship) at the protection visa stage, on its own (and taking into account the Tribunal does not consider there is otherwise probative evidence indicating the applicant is an Iranian national for reasons above and below), the Tribunal is not satisfied – to the requisite level required by Zhao – that this means the applicant was an Iranian national at that time, and therefore provided incorrect information in this regard in his protection visa application. It is possible [Mr F] lied to the [Country 2] authorities at the time, or they misinterpreted his evidence. There is not enough information before the Tribunal to be satisfied about these matters and accordingly the Tribunal gives this information no weight.
There are other considerations which lead the Tribunal to consider the applicant was stateless and not an Iranian national when he applied for protection, including the fact that the RSA delegate in 2011 accepted the applicant was stateless, not an Iranian national, who held a Green card then White card in Iran, and who had departed Iran on a genuine passport that was falsely issued, obtained through a contact in Iraq. The RSA delegate also accepted these matters in the applicant’s wife’s and daughter’s cases.
Additionally, as contended by the applicant at hearing, his return to Iran for a visit in 2013 holding an Australian travel document (titre de voyage (TDV)) containing an Iranian visa, which he had applied for via the Iranian embassy, Canberra is indicative to some extent that he did not hold an Iranian passport (for example) at that time. Copies of the relevant pages of the TDV are contained on the Department’s file.
On this point the Tribunal notes the applicant’s return to Iran in 2013 – the place where he claimed to fear persecution in 2010 – does cast doubts to some extent on his earlier protection claims. However, a short term visit does not undermine his protection claims in their entirety, particularly given they related to his status as a stateless Faili Kurd and problems experienced over a period of time. The Tribunal notes the delegate did not raise this as a specific concern in the s 107 notice or decision to cancel record.
Additionally, the Tribunal has found in the related cases that the applicant’s wife, daughter and brother were stateless and not Iranian citizens or Iraqi citizens when they applied for protection. (The reasons for those findings are set out in the respective decision records.)
For these reasons the Tribunal is not satisfied the applicant is (or was at the time of the protection visa application) an Iranian citizen.
Iraqi citizenship
As noted, in the s 107 notice the delegate considered the applicant was eligible for Iraqi citizenship when he applied for protection based on evidence subsequently provided to the Department that his parents had obtained Iraqi citizenship in [2010]. The delegate concluded he had therefore provided incorrect information in response to several questions in Form 866C of the protection visa application, and by leaving question 20 – which asks his current citizenship – blank, as set out earlier. Nonetheless, in the decision record the delegate concludes, after having regard to the applicant’s response to the s 107 notice, that ‘there is inadequate evidence to demonstrate the visa holder and his family held Iraqi citizenship at the time of the Protection visa application’.
The particular non-compliance alleged in the s 107 notice (and decision to cancel record, initially) in this respect was confused, with the delegate at times alleging the applicant was ‘eligible’ for Iraqi citizenship when he applied for protection, whilst at other times that he ‘held’ Iraqi citizenship then, which are two different things. Yet as noted, ultimately the delegate found there was not enough evidence to support such a finding and concluded that ground was not made out.
The Tribunal considers the issue of the applicant’s Iraqi citizenship status at the time of the protection visa application relates to his answer to question 21 of Form 866C – if he holds any other citizenship, or whether he is a national of any other country (to which he answered ‘no’). For the reasons that follow the Tribunal is not satisfied the applicant held Iraqi citizenship at the time he applied for protection.
The applicant does not deny that his parents were able to obtain their Iraqi citizenship then (in [2010]) but argues it was not the case he obtained Iraqi citizenship at that time.
The Tribunal considers the applicant has given a plausible explanation about his parents regaining their Iraqi citizenship in 2010, and his attempts to do so, but ultimate failure. Specifically, that his parents, after being expelled from Iraq under Saddam Hussein’s regime (along with the applicant and his siblings), regained Iraqi citizenship in [2010], when the new government offered Faili Kurds who previously had Iraqi documents to apply for citizenship. However, at that time he and his siblings did not obtain citizenship because they would have had to do so in person in Iraq, which his parents did not want given the civil unrest there. At hearing the applicant told the Tribunal he recalls vaguely that his parents were planning on obtaining Iraqi citizenship around the time they were deciding to leave Iran but he had no interest in doing so given the poor security situation in Iraq.
Further the applicant explained his father was able to obtain his Iraqi national civil ID card issued [in] 2016 from Iraq, because his name was registered in a file in Sydney through the Iraqi embassy. It is submitted this was just the first step in the applicant obtaining Iraqi citizenship but due to requirements to be in the country (as advised by the Iraqi High Commission in Canberra, submitted by the representative) and related difficulties and possible delays, this has not yet eventuated.

100. Country information confirms that the Iraqi Nationality Law of 2006 provides for the restoration of citizenship to Iraqis whose citizenship was revoked and that since 2006, the Iraqi government has actively encouraged Faili Kurds to return to Iraq and reclaim their citizenship. The process of regaining citizenship varies according to the nature and amount of identification that the applicant is able to produce and requires a representative of the family to travel to Iraq. In the event that an applicant has insufficient documentation and/or local records have been destroyed, credible local witnesses could attest to the applicant’s provenance in a local court and the records of the testimony transferred to Baghdad. At the end of the process, the individual applicant must go in person to pick up the Nationality Certificate in Baghdad.[17]
[17] DFAT, Thematic Report: Faili Kurds in Iraq and Iran, 3 December 2014.
101. However, that process is reportedly slow and difficult (as submitted), with UNHCR reporting in 2010 that only 666 out of 25,000 potentially eligible expelled persons had reacquired their citizenship since the law came into effect. It noted there were serious problems in the implementing, including difficulties for those who lacked the identification documents required, the loss of civil status records, general bureaucracy, slow procedures, lack of employees with a legal background and administrative corruption.[18]
[18] Country Advice Iraq IRQ37208 – Faili Kurds – Reacquiring Iraqi citizenship, 18 August 2010.
102. More recently it is reported that despite the positive steps of reinstatement, there continue to be obstacles hindering the return of Faili Kurds to Iraq, which reports that the process of reinstatement is long and cumbersome and applicants are often required to travel from their place of residence to the Nationality Directorate in Baghdad to follow up on their applications. It is reported that some Faili Kurds started the process but could not complete it due to documentary and financial requirements.[19]
[19] Abdullah Omar Yassen, ‘Report on Citizenship Law: Iraq’, (Country Report, RSCAS/GLOBALCIT-CR 2021/12, May 2021), at p 10.
103. This country information about difficulties in regaining Iraqi citizenship including requirements to travel to Iraq in person, and security related issues in Iraq, is consistent with the applicant’s account in these respects. Accordingly, whilst the Tribunal accepts the applicant’s father was able to obtain an Iraqi ID card for him as the first step in the process for him to regain his Iraqi citizenship (in 2016), it is not satisfied the process was completed. It does not accept he held Iraqi citizenship at the time he applied for protection, or now.
104. Even if accepting the reasoning of the delegate that Iraqi ID cards are only issued to Iraqi citizens, this shows the applicant obtained Iraqi citizenship in 2016, not before.
105. For these reasons the Tribunal is not satisfied the applicant was an Iraqi national at the time he applied for protection.
Other alleged non-compliance
Departure from Iran holding ‘genuine’ Iraqi passports
106. The s 107 notice also records that the delegate considered the applicant provided incorrect answers to questions 44 and 45 of Form 866C, which asked who he thinks may harm or mistreat him and why if he goes back to Iran. That is because his answer – that he would be persecuted by the Iranian police on return because he left as the holder of a false passport – was purportedly inconsistent with his and his wife’s advice to the Department at entry interview that they departed Iran on genuine Iraqi passports which were obtained because they were registered in the census registration in Iraq.
107. In response to the s 107 notice, and before the Tribunal the applicant does not dispute saying as such, as his (and his family members) Iraqi passport was genuinely issued, but obtained through bribery. Therefore, it is submitted he was correct in stating at his identity interview that they were fraudulently issued Iraqi passports; they were issued by the Iraqi authorities but were obtained by fraudulent means and are not genuine. To support his contention in this regard the representative refers to country information about the availability of a wide range of false documents within Iraq.[20]
[20] DFAT Country Information Report, Iraq, 9 October 2018, and Canada research directorate.
108. The applicant has consistently claimed to have left Iran on an Iraqi passport (as did his wife and children), which is not in dispute. At issue is whether those passports were fraudulently obtained or not. The delegate considered they were not, due to the applicant and his wife allegedly telling the Department at entry interview that they departed Iran on genuine Iraqi passports which were obtained because they were registered in the census registration in Iraq. It is submitted this is not necessarily inconsistent because the passports were genuine in names (and so on), but obtained through the applicant paying money to a contact in Iraq. The Tribunal notes this contention is supported by country information. DFAT report that whilst the current ‘A’ series passport has good security features, the supporting documents can be vulnerable to fraud and counterfeit, increasing the risk of passports being obtained on the basis of counterfeit documentation.[21] More broadly, DFAT state that fraudulent documents in Iraq are reportedly common and cheaply available and ‘genuine documents obtained through fraudulent means are also common, mostly obtained by paying bribes to officials’.[22]
[21] DFAT Country Information Report, Iraq, 17 August 2020 at 5.59.
[22] Ibid at 5.61.
109. The Tribunal notes the alleged inconsistency between the applicant and his wife’s evidence about whether or not their Iraqi passports used to leave Iran were ‘genuine’ was before the RSA delegate. In a decision made on 9 March 2011[23] the RSA delegate addressed the fact at the applicant’s wife’s entry interview she said they had travelled from Iran on ‘legitimate Iraqi passports’ and said that she and her husband were ‘registered on the census registration in Iraq’. The applicant and his wife were asked specifically about this at the RSA interview (according to information contained in the RSA decision record), where his wife explained that, as far as she was aware, the Iraqi passports were genuine documents issued by the Iraqi ‘passport office’ but they were fraudulently (illegally) obtained. She also said her husband paid a person to go to Iraq to illegally obtain the passports. With respect to her saying earlier (at the entry interview) about them being registered in Iraqi census, the applicant’s wife also explained at the RSA interview, that having both been born in Iraq, she assumed she and her husband’s names would probably be recorded somewhere in Iraq. The RSA delegate was satisfied as to her clarification about this matter and accepted the applicant, his wife and children departed Iran using ‘fraudulently obtained Iraqi passports issued to them in their own name’, which also contained visas for Iran, so the Iranian authorities would think they had crossed from Iraq to Iran.

[23] A copy of which is contained on the Department’s cancellation file in this case.
110. The RSA delegate states in the decision record that the applicant said he obtained the Iraqi passports through a contact in Iraq, thinking it would be easier for the Iranian authorities at the point of exit from Iran to detect fraudulently-issued Iranian passports as opposed to fraudulently-issued Iraqi passports. This is consistent with his evidence provided in response to the s 107 notice, his evidence before the Tribunal, and accords with the above country information.
111. The Tribunal notes further that the notes of the applicant’s [2010] entry interview contained on the Departmental file record the applicant explaining that his Iraqi passport was issued in Baghdad, and it was genuine but that he paid money to someone who brought his (and his family members) passports from Iraq to Iran, after they gave him details (names and ages) and photos. This is entirely consistent with the applicant’s subsequent accounts of how he obtained genuine but fraudulently obtained Iraqi passports to depart Iran in 2010.
112. For these reasons the Tribunal accepts the applicant (and his family members) departed Iran in 2010 on a genuine but fraudulently obtained Iraqi passport, as indicated in his protection visa application.
The applicant’s name
113. The s 107 notice records that it appeared the applicant breached s 101(a) of the Act by leaving blank question 4 of Form 866C which asked whether he had been known by any other name. This is because the applicant had stated at his identity interview that although his Iranian Kurdish name is ‘[applicant name]’, his Iraqi name is ‘[Iraqi name]’ (born [Date]).
114. The representative explains that the applicant was not known by any other name, and never went by any other name. He only went by his [Iraqi name] after his father obtained an Iraqi ID card for him as the first step in the process for him to regain his Iraqi citizenship (in 2016). This is evidenced by his name listed as ‘[applicant name]’ in a copy of his son, [Mr A]’s Australian birth certificate provided (who was born in [Year]). When the applicant applied for protection he had never been known or went by any other name, it is submitted. At hearing the applicant said his name [applicant name] in Iran – from a young age – was a shortened version to sound more Iranian. For as long as he can remember this was his name, which is why he left the question blank in the application form.
115. The Tribunal accepts the applicant and his representative’s submissions in this regard. It accepts the applicant only went by the name [applicant name] up until his father obtained his Iraqi ID card in 2016, evidenced by his name on his son’s Australian birth certificate. Further, for the reasons given above the Tribunal does not accept he held Iraqi citizenship at the time he applied for protection, it also does not accept he deliberately withheld this Iraqi ID (which contained another name) from the Department in an effort to hide his Iraqi citizenship as the delegate indicated was highly likely in the s 107 notice.
116. For these reasons the Tribunal accepts the applicant is a stateless Faili Kurd and was at the time of his protection visa application, who did not hold either Iranian or Iraqi citizenship. It accepts in Iran he held a Green card then a White card, and obtained an Iranian driver’s licence around 2000, issued to registered refugees there and that this is not probative evidence that he was, or is, an Iranian national. Further it accepts his name at the time of the protection visa application was [applicant name], up until he obtained his Iraqi ID card in 2016.
117. Accordingly, the Tribunal is not satisfied the applicant provided incorrect information at the protection visa application stage about these matters including his citizenship status and related claims in breach of s 101(b) of the Act, or that he breached s 101(a) of the Act by leaving blank two questions relating to his current citizenship and whether he had been known by other names, as discussed.
CONCLUSION
118. Taking into account the evidence before it, and for the reasons above, the Tribunal is not satisfied as per the requirement in Zhao – that is a real state of satisfaction reached on a consideration of the available material before it – that the grounds for cancellation are made out in this instance.
119. For these reasons, 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.
DECISION
120. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
121. The Tribunal has no jurisdiction with respect to the second named applicant.
Nicole Burns
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.