2102561 (Refugee)

[2023] AATA 1811

2102561 (Refugee) [2023] AATA 1811 (5 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ali Mahmood Alkafaji

CASE NUMBER:  2102561

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Sean Baker

DATE:5 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 05 June 2023 at 5:04pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – Federal Court remittal – incorrect information given in visa application – citizenship – stateless Bidoon or Iraqi citizen – fear of harm in Kuwait and Iraq – provided with Iraqi personal status and residence cards but no right to remain and limited other rights – declared Iraqi citizenship/residence in wife’s partner visa application and wife and children hold Iraqi passports – that application prepared by third party who possibly confused residence and citizenship – those passports issued irregularly after applicant arrived in Australia – applicant’s return travel on Australian titre de voyage – genuine belief of statelessness at time of application – country information – requisite level of satisfaction not reached – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 438(1)(a)

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336

Mian v MILGEA (1992) 28 ALD 165

Singh v MIEA [1994] FCA 1534

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 dependants.

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 Immigration and Border Protection to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the delegate found that the applicant had provided incorrect information and that the reasons in favour of cancellation outweighed those against. 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 Tribunal, differently constituted, affirmed the cancellation decision on 21 July 2017. [In] January 2021 the Federal Circuit Court remitted the matter back to the Tribunal on the basis that the Tribunal misconstrued the two-stage statutory scheme of cancellation and failed to consider whether the applicant had a genuine belief in his claimed statelessness at the relevant time.

4. The applicant appeared before the Tribunal on 27 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. 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.

   History of this application

9. It is helpful to set out in detail the applicant’s circumstances and the events which have led to this case.

10. The applicant arrived in Australia in January 2011 as an Irregular Maritime Arrival. He was found to be a stateless Bidoon but would not face a real chance of persecution if required to return to Iraq by a delegate in May 2011. On review by the Independent Merits Review process the applicant was found to be a stateless Bidoon and to face a real chance of persecution if returned to Iraq for reasons of his status as a stateless Bidoon, his imputed political opinion and his Sunni religion and to be owed protection. He lodged a protection visa application on 23 May 2012 and was granted a protection visa on 2 July 2012.

11. The applicant visited Iraq from [January] 2013 to [April] 2013; and [March] 2014 to [May] 2014.

12. The applicant sponsored his wife’s partner visa application which she lodged in June 2013, including their four children as members of the family unit. The sponsorship form supplied by the applicant stated that his wife and children were Iraqi citizens. The applicant’s wife and children provided copies of Iraqi passports issued in April 2013 in support of their applications and stated in their applications that they were Iraqi citizens.

13. The Department sent the applicant a notice of intention to consider cancelling his visa under s 109 in January 2017.

14. The Department conducted an International Treaties Obligation Assessment in February 2017.

15. The applicant’s visa was cancelled by a delegate on 9 March 2017.

16. The applicant sought review before the Tribunal and on 24 July 2017 the Tribunal made a decision affirming the delegate’s decision to cancel the applicant’s visa.

17. In the course of that review, it was raised with the applicant that there was a s.438(1)(a) certificate on the Departmental Partner visa application file for the applicant’s wife. The previous Tribunal indicated to the applicant that it considered the certificate to be invalid and noted that the Tribunal would discuss any relevant information contained in those documents. I also find this to be the case and did not find it necessary to raise this directly with the applicant.

18. That decision was set aside by the Federal Circuit Court. The Court held that the Tribunal had misconstrued the two-stage statutory scheme of cancellation by making limited findings on the non-compliance but then finding that the applicant had provided incorrect information about his nationality and his claims of harm when the Tribunal had only found that he had provided incorrect information about his nationality. The court held that by failing to consider whether the applicant had a genuine belief in his claimed statelessness at the relevant time, the Tribunal fell into jurisdictional error. The Tribunal found that the applicant and his family had acquired Iraqi nationality. It did not find that the applicant knew that he and his family had acquired Iraqi nationality at the time he made his protection visa claims. The applicant had expressly raised in his Clarification Statement the proposition that he genuinely believed he was stateless. This was a matter bearing on the exercise of discretion by the Tribunal and it was not considered.

    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(b). The notice identified instances where the delegate had formed the view that the applicant had provided incorrect information in his protection visa application made on 23 May 2012 in the following respects:

    ·     In that application (form 866C) the applicant declared himself to be stateless (Q20), to hold no other citizenship nor nationality of any other country (Q22), no right to enter or reside in any other country (Q23), that he was seeking protection so he did not have to return to Kuwait and Iraq (Q42) and referred to his statutory declaration made 20 February 2011, his RSA interview and the material provided to the Independent Merits Reviewer for his detailed claims (Q47);

    ·     He declared his wife and five children to be stateless (form 866B).

20. In the statutory declaration which he referred to in his protection application he declared himself to be a stateless Bidoon and a Sunni, that his and his children’s lives were threated because of his Sunni religion and because he did not support a political party, that the authorities would not protect him, that he had been provided with an Iraqi personal status card and residence card, access to hospital and schools, but no other rights and no ongoing right to remain in the country, if he returned to Iraq he would be threatened and potentially killed by Shia extremists, his seeking asylum in a Western country would also cause problems.

21. The s 107 notice records that in the sponsorship application form for his wife and children the applicant when asked what his citizenship/residence status was in Australia he answered Iraqi.

22. In the partner application the applicant’s children and wife provided their Iraqi passport and identity card numbers.

23. The applicant also travelled to Iraq, as noted above, on two occasions with stays of approximately 3 months and 2.5 months.

24. The s 107 notice include reference to country information that indicated that Iraqi Identity cards and passports are only issued to Iraqi citizens. According to Article 18 of the Iraqi Constitution “Iraqi citizenship is a right for every Iraqi and is the basis of his nationality. Anyone who is born to an Iraqi father or to an Iraqi mother shall be considered an Iraqi.”

25. The notice went on to observe that the information strongly suggested the children gained their Iraqi citizenship by descent as the applicant is an Iraqi citizen. The s 107 notice concludes that in light of the above information it appeared that the applicant is not stateless and were not stateless at the time of his Protection visa application. The cancellation delegate considered that the applicant was an Iraqi citizen and was so at the time of the applicant’s Protection visa application.

26. The notice then went on to find that the applicant had answered each of the above questions incorrectly and therefore had not complied with s 101(b).

27. The applicant’s representative provided a submission which included a summary of the history of Kuwaiti Bidoons deported to Iraq after Operation Desert Storm in 1991 and arguing the applicant had provided no incorrect answers. The submission went on to provide further reasons for no cancellation of the visa.

28. The applicant responded to the s 107 notice with a clarification statement in which he said that his family were born in Kuwait as non-Kuwaitis with no nationality and attached Kuwaiti documents. He worked in the Kuwait [Employer] but was expelled as a Bidoon and he was deported with his family and entered Iraq with special permits, they had civil service cards but faced increasing difficulties as stateless Bidoons in Iraq. He paid someone to gain a fake Iraqi passport with which he was able to leave Iraq. He conceded that his son [Child A], who was born in Iraq, was granted Iraqi citizenship but only after the applicant paid great amounts of money. His wife arranged for an intermediary from the Iraqi House of Deputies for the issue of passports to his wife and children other than [Child A]. He travelled to Iraq on both occasions taking precautions. He travelled with his Australian TDV. He is not an Iraqi citizen.

29. The cancellation delegate considered the response but concluded that the applicant had answered each of the above questions incorrectly and therefore had not complied with s 101(b). The delegate went on to consider that the reasons for cancellation outweighed those against and cancelled the visa.

30. Before the previous Tribunal, the applicant explained that he had shown his Iraqi residence card to the person who had been preparing the spouse visa application forms for him and this person had presumed this meant that the applicant was an Iraqi citizen and had incorrectly put this down on the form. He told the previous Tribunal that until 2012, the family had no proof of nationality, but that his wife had been in a desperate situation and had paid US$3000 and managed to obtain Iraqi passports and ID cards. The Tribunal member was not satisfied that the applicant was able to explain whether these documents were genuine, and the family were entitled to them or were fraudulent. Nor were his responses in relation to the passport he had departed Iraq with.

31. The applicant’s representative submitted that when the applicant applied for a protection visa, members of his family were stateless, and the subsequent Iraqi documents provided by the family were obtained in 2013.

32. At the hearing before me the applicant provided consistent evidence about his early life in Kuwait, his role in the Kuwaiti [employer] and his expulsion from Kuwait with his family.

33. He described what happened when they were removed to Iraq – they were provided with ID cards in January 1994 which allowed them to access health care and travel within the country. His four children were able to attend school because of the ID cards.

34. I asked the applicant about his fifth child, [Child A], born in Iraq. I asked if he was able to get [Child A] citizenship in Iraq. The applicant denied this. He said that because he was not entitled to Iraqi citizenship, he was not able to get [Child A] citizenship. I noted that he had stated in the spouse application that [Child A] was Iraqi. The applicant said that this was not the case, the situation had been that in the 90s in Iraq who was born in an Iraqi hospital when they register them they write Iraqi on the paper but [Child A] was not a citizen, he had had the same ID card as the rest and the whole family had been stateless.

35. I discussed the Makremiayah with the applicant, the process by which Iraqi authorities granted citizenship to Bidoons, which was reportedly accessible through their affiliation to some tribes and in accordance with articles 17 and 18 of the Iraqi nationality law of 2006.  This process occurred from the 1990s until 2000 under the Sadaam regime. Approximately half of the extant Bidoon population at that time were granted citizenship under the Makremiayah process[1] I asked the applicant why he and his family had not become citizens through this process and the applicant said that you needed to have a record of being in Iraq before 1957 and you needed to belong to or be sponsored by a specified Iraqi tribe. He said that he had not been able to fulfil those things. He said that because he had been born in Kuwait he did not know anything about Iraq. The relevant tribes did not accept him and his family.

    [1] Department of Foreign Affairs and Trade, 2010, Response to RRT Country Information Request IRQ37183 – The Bidoon, CISNET CX249082.

36. I noted to the applicant that the country information I had seen was that local officials were sometimes willing to bend these rules. The applicant responded that these things only happened after 2013. The applicant said that they had been given IDs but that that was all.

37. I asked the applicant about his departure from Iraq in 2010. I asked if he, his wife or any of his children were Iraqi citizens at this time. The applicant said that none of them were, they only had the ID.

38. I then turned to the passports and ID cards of his wife and children. I asked how they had obtained these documents. The applicant reiterated that his wife had gone to a local official and they were able to help his wife to obtain the documents. He said that at this point the Makremiayah was not available, this was a different process. He described what he knew of the process, which he said was not much because his wife had undertaken this, there were not many computerised systems in Iraq in 2013 and his wife went to the local official who had connections. He was able to listen to her and she told him she does not have any proof and then she was able to get those papers from him after the payment. When asked the applicant said that his wife had wanted them to become Iraqi citizens at that time so that they could travel to Australia and be reunited. I asked when she had gone through this process and the applicant said he did not know, he only knew it was 2013.

39. I noted that in the partner visa his wife and children had declared themselves to be Iraqi. The applicant responded that they had said that because they had all those documents – the passports and ID cards, his wife had gotten these documents because without them they would not have been able to travel to Australia.

40. I then asked the applicant about the letter from the ‘Group of righteous owners’ The applicant said that he had obtained this because this was for the Bidoon community and if he or a family member went to hospital of another Department they ask if they are a Bidoon and they have to go and get this letter.

41. I have had regard to the documents the applicant has supplied. This includes the letter from the ‘Group of righteous owners’, which had also been translated as the ‘Association for People who have returned from Kuwait’, a copy of a birth certificate in the name of [Form of name 1] which notes the place of birth as Kuwait, a copy of a the applicant’s Kuwaiti marriage certificate, an Iraqi Personal Status card in the name of [Form of name 2] with a date of birth of [Date], place of birth Zubair, Basrah, and a Driver’s licence from Kuwait which was cancelled by the Kuwaiti government. I also do not have (as the applicant disposed of it en route), but there is consistent mention of a genuine Iraqi passport which the applicant obtained, paying to have it fast-tracked, which he used to depart Iraq.

42. I can see from the file and from the decision records that these documents were provided by the applicant in 2011 when he arrived and are referred to by the delegate in the May 2011 refusal decision, in which the delegate found the applicant was a stateless Bidoon originally from Kuwait, habitually residing in Iraq, at least in part on the basis of these documents. The IMR also referred to these documents.

43. These documents have been available for all subsequent decision makers to consider.

44. Having looked carefully at these documents they appear to support the claims made by the applicant. I have considered these claims, and the documents, in light of country information, in particular country information at the time of the applicant’s protection visa application.

45. As noted above, on 13 September 2010, the Department of Foreign Affairs and Trade (DFAT) released a report which stated that approximately half the Bidoon population in Iraq was granted citizenship under the Makremiayah but that, since 2003, it has not been possible for Bidoon to access citizenship in Iraq:[2]

    The number of Bidoon entering Iraq at this time is unclear, but is estimated to be no more than 100,000. Post's understanding is that when the Bidoon entered Iraq, they received support from the former Baath regime (in particular former Foreign Minister and Deputy Prime Minister Tarek Azziz).
    2. The status of Bidoon in Iraq appears to fall into two categories. 47,417 individuals (6,955 families) are said to have been granted Iraqi nationality by the previous regime during a one-time assistance package called "Makremiayah" (meaning a generous act). This was primarily at the urging of advocacy groups such as "Rights holders - Ashab el HAQ". To obtain citizenship, Bidoon had to declare that Kuwait was not their place of birth (i.e., had to renounce association with Kuwait) and often needed sponsorship by a local tribe (especially around the city of Samawa (100 km from Nasariyah) where the Bdour and Ghizi tribes wielded influence).
    3. There are reports that only about half of the Bidoon were granted citizenship under Makremiayah. The remainder are stateless in Iraq and number approximately 54,500 individuals or 5,430 families. These Bidoon were either unwilling to renounce their association to Kuwait, did not have sufficient affiliation to Iraqi tribes, were unaware of naturalisation procedures or entered Iraq from a third country after Makremiayah.
    4. Since 2003, it has not been possible for Bidoon to claim citizenship in Iraq. The "Rights holders - Ashab el HAQ" association has been disbanded and there are reports that some of its members were detained. The Iraqi Ministry of Migration and Displacement has no record of registration of Bidoon since 2003.
    5. The stateless Bidoon live in the desert in the southern provinces of Basra and Dhi-Qar (especially around Samawa). They do not hold Iraqi nationality certificates, Iraqi ID cards or Public Distribution System (PDS) cards (which often double as identity cards). These Bidoon have no legal right to remain in Iraq and keep a low profile. Without documentation, they cannot move freely within Iraq or outside of Iraq. They have no access to basic public services such as medical care or education. Births and deaths are not registered by Iraqi officials.
    

    [2] Department of Foreign Affairs and Trade, 2010, Response to RRT Country Information Request IRQ37183 – The Bidoon, CISNET CX249082.

    6. Whether naturalised or stateless, Bidoon retain the title of "Bidoon" in Iraq, due to their background. Most are nomadic and live in tents. Others live scattered in illegal public buildings and settlements (as even naturalised Bidoon do not have the legal right to own immovable property). Some Bidoon live integrated with other IDP squatter communities. The Bidoon appear to be tolerated by some local officials.

1. Other DFAT information reported that there were paths to Iraqi citizenship for deportees from Kuwait, but did not address the September 2010 report which states that ‘since 2003’ it was not possible for Bidoon to access Iraqi citizenship:[3]

   [3] Department of Foreign Affairs and Trade, 2010, RRT Country Information Request KWT38633 - Bidoons in Iraq, CISNET CX265240.

2. I have also had regard to the information provided by the UNHCR to the former RRT. In this response the UNHCR state that Bidoons ‘seem to ignore the possibility for them to regularise their situation’ or ‘have rejected the Iraqi nationality and continue to claim their Kuwaiti origins.’[4] The UNHCR report goes on to state that the Bidoons who did not take up the Makremiayah constitute the majority of Bidoons in Iraq.[5]

   [4] UNHCR Country Advice for the RRT, 2010, IRQ37184, Iraq Bidoons, 9 September UNHCR Country Advice for the RRT, 2010, IRQ37184, Iraq Bidoons, 9 September >

   I have carefully considered the country information and the documents and claims made by the applicant in light of this information. I consider that there are a number of clear findings that can be made.

3. Firstly, I find that the applicant was born in Kuwait, lived much of his life there, [worked for an Employer] and married and had four of his children there. I base these findings on the consistent information of the applicant, which is consistent with country information about the situation for Bidoons in the Kuwait/Iraq region before Operation Desert Storm and on the documentation the applicant provided when he first arrived in Australia. the genuineness of these documents has never been directly impugned and there is no detailed information before me to suggest that they are not genuine.

4. It follows that I find that the applicant and his family were removed to Iraq in 1994. Again, the documentation he has provided from Iraqi authorities around this time supports this.

5. I turn then to whether the applicant availed himself of the Makremiayah. There are several lines of evidence which tend to indicate he did not. He provided evidence that he did not have the requirements to do so – a documented linkage to Iraq from 1957, a declaration that Kuwait was not their place of birth, and a connection with a local tribe in the area. I have had regard to the DFAT information that officials were reportedly flexible with these requirements, but I also note that both DFAT and UNHCR note that the majority of Bidoon did not gain citizenship under the Makremiayah. The reasons for this are not clear, it may be that these families were unable to provide evidence they met the requirements, and in particular that they may not have wished to renounce their association with Kuwait. In this regard I note the ‘Group of righteous owners’ letter, which appears to indicate that the applicant continued to identify as a Kuwaitit as at the date of this letter, 1999. I have had regard to and accept the submissions that the letter is a form of identification of those who were removed from Kuwait and seek to return there and assert their rights, and that this reflects the fact that the applicant did not consider himself as Iraqi at that time.

6. I have had regard to the fact that the claims of the applicant may be at odds with the country information in some respects. I note that the Iraqi Personal Status card for the applicant records his place of birth as Basra, Iraq, and that this might indicate a willingness of the local officials to provide the applicant and his family with some form of documentation short of Iraqi citizenship and an identity card, or it may have been a precursor document with which the applicant was then able to access citizenship under the Makremiayah as this appears one of the requirements. I am also curious about the difference between the personal status cards and an Iraqi identity card, I accept that there is likely a difference between the two but the fact that the applicant and his family were able to obtain some documentation, which allowed them some rights of remaining, health and schooling, appears at odds with the contemporaneous country information that those Bidoon with documents are citizens and those without documents are not and have no documentation or rights to health or education. However, I also acknowledge that the country information is broad brush and may not take account of variations in the situation for differing groups of ‘undocumented’ Bidoon.

7. Ultimately, my concerns about these documents do not rise to the level of certainty with which I am able to make a firm finding that the applicant and his family obtained Iraqi citizenship through the Makremiayah. Further, there is information, in the form of the letter from the ‘Group of righteous owners’ and the consistent testimony of the applicant which go against this.

8. I find on balance that the applicant and his family did not take up citizenship under the Makremiayah. I am certainly not satisfied to the requisite level of satisfaction required when making such a consequential decision under Subdivision C of Division 3 of Part 2 of the Act.

9. Was there, therefore, another opportunity where the applicant took up Iraqi citizenship prior to his protection application? According to him, there is not. According to the cancellation delegate, the fact that his wife and children held Iraqi documents demonstrates that he did. There are several difficulties with the delegate’s reasoning.

10. Firstly, the country information from around the time the applicant made his protection application indicates that, at least according to DFAT in 2010, Bidoon were not able to (legitimately) access Iraqi citizenship after 2003. I say legitimately because DFATs source for this conclusion appears to be the Iraqi government, where they say that ‘The Iraqi Ministry of Migration and Displacement has no record of registration of Bidoon since 2003.’ This does not discount the possibility that Bidoon such as the applicant were able to acquire genuine or non-genuine identity document such as a passport through corrupt channels. I note that the DFAT brief report in 2011 claimed that Bidoon had been able to acquire citizenship, but the method was not explained. At the least this lacuna in the country information needed to be explored by the cancellation delegate. It was not.

11. Secondly, the cancellation delegate appears to assume that because the applicant’s wife and children were issued with identity documents in 2013, they were Iraqi citizens prior to this time. I can see no logical and probative evidence before me to support this reasoning.

12. Thirdly, and related to this point, the cancellation delegate appears to assume that the fact the children hold Iraqi passports demonstrates that they must have acquired Iraqi citizenship by descent from their father, the applicant. Again, this does not necessarily follow. The cancellation delegate has referred to the Iraqi nationality law which appears to allow the father and the mother to pass on their citizenship by descent, so it is not clear why it is assumed that it was their father. But more importantly, citizenship by descent is generally exercised where the parent is an Iraqi at some point prior to the birth of the child. In this case, the cancellation delegate has not explained whether they believe the applicant was an Iraqi citizen from birth (and therefore has provided a large number of fraudulent documents), or alternatively, how the children acquired their citizenship by descent if the applicant or their mother became naturalised Iraqi citizens.

13. In this regard I also accept his evidence that his identifying himself as an Iraqi citizen in the sponsorship form for his wife’s spouse visa was inadvertent and does not reflect the true situation

14. The applicant did not concede that there had been non-compliance in the ways particularised in the s. 107 notice.

15. A statutory power, such as the power to cancel a visa, requires the existence of provable facts to ground such power.[6] The delegate must reach a state of satisfaction that these facts exist, a real state of satisfaction, as the Court explained in Zhao, must be reached on consideration of available material, and cannot just cancel the visa ‘because the visa holder has failed to show cause 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.’[7]  While it is the case that administrative law does not readily lend itself to a concept of the onus or standard of proof, such concepts are not irrelevant. That is to say, where a statutory power requires the satisfaction of the relevant delegate of that power, and where that power potentially has a profound impact on the lives of those affected, as does a cancellation of a permanent visa, then it appears to me that a consideration of the gravity of the consequences should be borne in mind when deciding what level of satisfaction the delegate should reach in order to ground the power.[8] This is particularly the case in cancellation cases such as these where the claims of the applicant to be a stateless Bidoon at the relevant time of the lodging of his protection visa were accepted by two delegates and the independent reviewer.

    [6] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA [1994] FCA 1534 at [14].

    [7] Zhao v MIMA [2000] FCA 1235 at [25] and [32].

    [8] Briginshaw v Briginshaw (1938) 60 CLR 336.

16. In this case, I am not satisfied that the particularised non-compliance in the s. 107 notice has been made out. The potential non-compliance does not reach the level of satisfaction required to ground the power. It is not disputed that the applicant has provided some contradictory pieces of evidence, most relevantly his responses about his and his families nationality in the 2013 spouse visa application and has returned to his claimed country of former habitual residence from which he sought protection. But I find that these facts do not rise to the level required. They do not establish the non-compliance.

17. In relation to the return of the applicant to Iraq, he has explained and provided documentary evidence of the compelling circumstances under which he returned, and I am willing to accept that he returned taking the precautions he claims. It is demonstrably not the case that returning temporarily to a country would place a person in the same precarious situation as living his life there. I place no weight on his returns to Iraq as signifying that his responses to questions 42 and 47 of his Form 866C, as well as his claims in the associated statutory declaration, are incorrect. I am not satisfied to the requisite state that his answers and responses in this regard are incorrect.

18. Having carefully considered the information before me, the documents the applicant has provided and the country information, I find that I am not satisfied to the requisite state that his responses in relation to his and his families status as stateless persons (Questions 20, 22, 23 of Form 866C and his responses in relation to his wife and children in his Form 866B) at the time he made his protection visa application were incorrect.

19. I find that there is no non-compliance in relation to the applicant’s nationality, status as a stateless person, that of his family, nor of his claimed fear of harm if returned to Iraq or Kuwait established by the information in the s. 107 notice that reaches the level required to ground the power to cancel the visa.

20. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

21. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    
    

    DECISION

22. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

    Sean Baker
    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.