2209695 (Migration)

2209695 (Migration) [2023] AATA 3776 (5 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Pathmanathan Rama
CASE NUMBER:  2209695
MEMBER:Meena Sripathy
DATE:5 October 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 (155) (Five Year Resident Return) visa.

Statement made on 05 October 2023 at 10:07am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers given in visa application – name, date of birth, citizenship and claims for protection – stateless Kuwaiti-born Bidoon or Iraqi citizen – Iraqi civil identity card number recorded in titre de voyage and father’s family register – ID number verified by relevant authority – stamp in TDV referring to Iraqi ID number obtained by bribery – unable to return to Australia from third country and needed to enter Iraq to fly from there – Kuwaiti passport type issued only to Bidoons – different names and dates and places of birth for parents given in citizenship application – tribal name formats – detailed and consistent written and oral evidence – statutory declaration and oral evidence from cousin – siblings’ protection visas in different countries – further documentation provided, including marriage certificate stating applicant and wife as non-Kuwaiti and birth certificate for child born in Iraq, stating parents as non-Iraqi – country information – prevalence of bribery and fraudulent documents – no knowledge of recent refusal of wife’s partner visa application – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 375A
CASES
McDonald v D-G of Social Security (1984) 1 FCR 354
Mian v MILGEA (1992) 28 ALD 165
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Singh v MIEA (unreported, FCA, Sackville J, 6 December 1994)
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v MIBP [2016] FCAFC 52
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The 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.
The issues in the present case are: whether the power to cancel the visa arises; if so, whether the ground for cancellation as alleged is made out; and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 12 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence in person from [Mr A]. [Mr B], and [Ms C] were available by telephone but the Tribunal did not require evidence from them. 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 and 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
A Notice of Intention to Consider Cancellation (NOICC) was issued dated 23 March 2022. The notice alleged the following answers given by the applicant in his Part C Form 866 Application for a protection visa were incorrect:
·Question 1 regarding his name given as [the applicant]. This was alleged to be incorrect on the basis that his actual name is [Alias].
·    Question 7 regarding his ‘Date of birth, given as [Date 1]. This was alleged to be incorrect on the basis that his actual date of birth is [Date 2].
·    Question 19 regarding his citizenship at birth and Question 20, current citizenship, given as Stateless. This was alleged to be incorrect on the basis that he is an Iraqi citizen.
·    Question 41 where he indicated Kuwait as the place he was seeking protection from in Australia. This is alleged to be incorrect because he is an Iraqi citizen.
·    Question 42 regarding the reasons he gave, in his statement of protection claims, for why he left the country.
·    Question 43 regarding the reasons he gave, in his statement of protection claims, for what he fears may happen to him if he returns to that country.
·    Question 44 regarding who he thinks may harm him if he goes back.
·    Question 46 regarding why he thinks the authorities cannot/will not protect him.
His answers to questions 42-46 are alleged to be incorrect because he is an Iraqi citizen and would have been afforded the same rights and protections as other Iraqi citizens.
·    Part B Question 9 details provided of his family composition, and specifically names and dates of birth of his parents and the citizenship status of all family members as stateless. This is alleged to be incorrect because he and his family members are Iraqi citizens and not stateless. It is also alleged that the names and dates of birth of his parents remain unknown on the basis of conflicting information provided by the applicant and his wife about this.
The notice refers to the following information on which the allegation of incorrect information is based:
·On 14 May 2013 the applicant’s wife lodged an Application for Provisional Partner visa (subclass 309) in the name of [Ms D], born [Date 3], declaring she was born in Kuwait and resided in Iraq as a stateless person. She submitted, among other items, her Iraqi passport ([number]) in the name [Ms D – Alias], date of birth [Date 4] and the applicant’s Australian Titre de Voyage ([Reference 1]) which included an Iraqi issued visa label permitting entry to Iraq and an Iraqi entry stamp dated [August] 2012. The visa label included a statement (as per translation) ‘the Iraqi visa label was made on the basis that the client was originally issued Iraqi ID card [number] [in] February 2007 by the [Location 1, Iraq] office’
·Verification checks undertaken with the Iraqi Civil Status Directorate confirmed the applicant and his wife were Iraqi citizens. They advised he was the holder of Iraqi Civil Identity Card, [serial number] which was updated and issued [in] February 2007 and is registered in his father’s family register located at the [Location 1, Iraq] office ([record number], [page number]). His second wife is also registered in this family register and their marriage was registered in the family register [in] February 2007. They confirmed the applicant’s details as
§First name:   [Name]
§Father and paternal grandfather name:        [Names]
§Surname:   [Alias surname]
§Date of birth:   [Date 2]
- In his Citizenship application lodged on 11 June 2015 the applicant provided different information to that provided in his Protection visa application relating to his parents’ names and dates of birth ([Mr E] born [Date 5] and [Ms F], [Date 6]) and that they were born in Kuwait and presently reside in Australia. In his Protection visa application he advised his father was born in [Year] and was deceased, and his mother’s name was [Ms F – Alias].
- The applicant’s wife also provided differing information as to his parents’ names and dates of birth, in her Form 80 Personal particulars for assessment including character assessment submitted in support of her temporary Partner visa application lodged on 14 May 2013, she advised his father was born on [Date 7] and was deceased, and his mother’s name is [Ms F – Alias], born [Date 8], Iraq.
·The NOICC also refers to the applicant’s Statutory Declaration dated 5 August 2019 in response to the citizenship delegate’s invitation to comment on the information acquired from the Iraqi Civil Status Directorate indicating he is an Iraqi citizen where he restated he is a stateless Bidoon with no citizenship of any country and no right to reside or enter any country and reiterated he has provided correct and accurate information to the department, and his explanation about the Iraqi visa label in his Titre De Voyage.
Applicant’s response to NOICC
The applicant submitted a Statutory Declaration dated 8 May 2022 in response to the NOICC containing the following information:
·     He was born in Kuwait and classified as Bidoon.
·     His correct date of birth is [Date 1].
·     As he has previously explained, the Iraqi Entry Stamp which refers to an Iraqi ID Card number was obtained by providing a bribe.
·     He raises a series of questions about the circumstances of the verification claimed to have been obtained by the Department, details about which has not been provided to him.
·     He maintains that his date of birth is not [Date 2] as indicated on the Iraqi ID document and purported Family Registry and he repeats that these documents do not relate to him.
·     He explains the reasons he went to Iraq from [Country 1] in 2012 due to his inability to book a flight from [Country 1] to Australia, as a result of the escalation of violence in [Country 1] he and his wife went to Iraq.
·     He clarifies the matter of his name, stating that his great grandfather was [Name/applicant’s Alias surname] and [Name/applicant’s surname] is his family name. His father’s correct date of birth, which he now knows is [Date 9] and he will be providing a death certificate.
·     He made an inadvertent mistake in his citizenship application when he stated his parents place of birth as Iraq and current residence in Australia.
·     He explains his mother’s father’s name is [Name/Ms F – Surname] and her grandfather is [Name/Ms F – Alias surname].
·     He reiterates he is Bidoon and stateless and is not, nor are his parents, Iraqi citizens.
·     The applicant states that he is a practising Shia, has lived for a considerable time in a western country, being Australia which is an ally of the USA and would be considered a wealthy returnee, and for these reasons he still has fears of harm if returned to the country of his previous residence.
Other information – Applicant’s response to citizenship delegate’s invitation to comment letter of 2 August 2019
On 2 August 2019 the applicant was invited to comment on the information that the Iraqi authority had confirmed he was registered in his father’s Family Register located at the [Location 1, Iraq] office under the [record number] and [page number] and that he was the holder of Iraqi Civil Identity Cards with [serial numbers] which was updated and issued [in] February 2007. He was also invited to comment on his refusal to provide a hospital issued birth certificate for his daughter born in [Month, Year] at [Hospital], Iraq. The letter stated that open source and Departmental information suggests that an Iraqi birth certificate lists parents’ citizenship, and his failure to provide the Iraqi birth certificate suggests an attempt to conceal his citizenship information.
The applicant provided the following documents in response to this invitation on 6 August 2019:
·Statutory Declaration dated 5 August 2019, confirming he is a stateless Bidoon and has not provided the Department any incorrect information. In relation to the Iraqi visa label in his Titre De Voyage provided with his wife’s partner visa application, he states it was obtained by paying a bribe and explained the circumstances of obtaining it. He had flown from Sydney to [Country 1] with [Airways]. The situation in [Country 1] was very bad as a result of [a Circumstance] and as a result [Airways] had stopped their flights in and out of [Country 1]. His only way to fly back to Sydney was via Iraq so he applied for an Iraqi visa through the Iraqi embassy in [City, Country 1], but his application was refused because he was a stateless Bidoon. He then decided to travel overland because he heard that there were corrupt officials there who accept bribery. At the border he paid an Iraqi check point officer US$200 for an Iraqi visa label. It was issued at [a] border point for an emergency and for single travel only. He stated the label included page and sequence numbers which are not recorded in the Iraqi civil registry system because he has no records in Iraq. The check point officer advised that no one would check the numbers and he would be able to enter Iraq for the purpose of flying back to Sydney. He declares he was unable to obtain a birth certificate for his child because he (sic) is stateless as well, the receipts were provided to prove the birth and he is not hiding any information.
·Letter from [Mr G], President of [Organisation], dated 5 August 2019, that the applicant is a member and has been involved in many activities of the society.
·Statutory Declaration by [Mr G] who met the applicant at [Organisation] and he is one of the regular attendees at the Hall Prayers. He comes from Kuwait and is known to be kind, humble and devoted to helping others.
·Statutory Declaration by [Mr H] dated 6 August 2019, attesting to the applicant’s good character, and the declarant’s s knowledge that the applicant is a Bidoon from Kuwait.
·Letter from [Dr I], dated 5 August 2019, certifying the applicant has been his patient since 2012 and is known to him as a stateless person and of good character.
On 11 September 2019 the applicant’s citizenship application was refused by a citizenship officer on the basis of not being satisfied as to his identity.
On 27 June 2022 a delegate of the Minister found that the applicant gave incorrect answers and the cancellation ground was made out, and made a decision to cancel the visa, having considered the applicant’s response to the NOICC and the matters relevant to exercising the discretion whether or not to cancel the visa. The delegate’s decision was based on a finding that the applicant was an Iraqi citizen on the basis of the verification of his Iraqi civil status ID card number.
Evidence before the Tribunal
On 31 May 2023 the Tribunal invited the applicant to provide any further evidence and submissions addressing the Notice of Intention to Consider Cancellation (NOICC) dated 23 March 2022 and the delegate’s decision to cancel his visa made on the 27 June 2022.
On 23 June 2023 and 7July 2023 the Tribunal received the following documents:
·Statutory Declaration from the applicant dated 23 June 2023 confirming his reliance on statements and documents previously provided and reiterating his claim to be a stateless Bidoon and has provided genuine and correct information to the Department. His status in Australia is causing severe anxiety and depression and he wants to become an Australian citizen.
·Statutory Declaration from [Mr A] and accompanying documents, including [Mr A’s] birth certificate, driver’s licence, review card photos and family census from Kuwait. The declarant is an Australian citizen and is the paternal first cousin of the applicant. His father and the applicant’s father are biological brothers. A family census from 1970 is submitted as evidence of the family relationship. They are both Bidoons and he submits his birth certificate and Kuwaiti driver’s licence in support. The applicant is [Age difference] than him, and they grew up and were raised together in Kuwait and had similar experiences of discrimination and degrading treatment as Bidoons. The declarant came to Australia in 2009 and was granted protection on the basis of his claim to be a Bidoon from Kuwait.
·Statement and supporting documents from [Ms C], sister of the applicant who resides in [Country 2] since 2015, having claimed protection there on the basis of her Bidoon status. She confirms the applicant is a Bidoon from Kuwait.
·Statement and supporting documents from [Mr B], brother of the applicant who resides in [Country 3] as a citizen, having sought protection as a Bidoon from Kuwait. He is married to the sister of [Mr A]. She confirms the applicant is a Bidoon from Kuwait.
Hearing 12 July 2023
At the hearing the Tribunal discussed the existence of a certificate issued under s375A relating to certain documents provided by the Department to the Tribunal, and the non disclosure obligation on the Tribunal if it considered the certificate to be valid. It noted that some of the relevant information included in the certificate had been provided to him in the NOICC and to the extent that there was any other adverse information on which the Tribunal proposed to rely, it would provide him an opportunity to comment as required by its obligations to provide procedural fairness.
The applicant confirmed his current circumstances as follows. He lives alone in [Suburb]. He was working as [an Occupation 1] in [a Work sector] until he suffered an accident at work and he is now receiving workers compensation. He is getting medical treatment for various injuries suffered as a result of the accident.
The Tribunal asked about his family composition here and overseas. His father is deceased. He died in 2008 in Kuwait, from illness. He is not certain of his date of birth. He believes he provided a copy of his death certificate to a previous representative. The current representative undertook to follow this up and provide it to the Tribunal. He provided his father’s full name- [Mr E – Alias]. The Tribunal asked where the name ‘[Family name]’ that he uses come from. He said this is his family tribal name and in Kuwait this is how they do it. The Tribunal noted other family members do not appear to use this family name and seem to use their father or grandfather’s name. He said he thought that he would use the name he used in Kuwait. When asked why he did not use [Alias surname] when he arrived in Australia and applied for protection, the applicant said he used his tribal name. His mother is [Ms F – Alias]. He does not have her accurate date of birth. The applicant explained he did not know the accurate dates of birth for his parents and put down dates on the applications because he had to provide something.
The applicant provided the following information about his siblings and their circumstances. His mother resides in [Location, Kuwait] with his [brother] and his family. Another sister, who is significantly disabled, also resides with them. His [sister] resides in [Country 2], she left Kuwait for [Country 4] and then went to [Country 2] from there. She is a widow, her son remains in Kuwait, living with his paternal uncles. He has [other sisters], all married with children and living in Kuwait, and one [brother] who left Kuwait in 2005 and resides in [Country 3].
The applicant’s wife, [Ms D], resides in Iraq. He was previously married to his first cousin, [Ms J] in [Year]. This was arranged by their parents. They had two children, born in [Year] and [Year] but the marriage ended in divorce in [Year]. The children initially were with him but after he came to Australia they returned to live with their mother. They are still with her in Kuwait, and single. With his second wife, [Ms D], he has one son, [Master K], born in [Year] in Iraq. They live with her maternal uncles in Nassirya. He supports them financially and has been financially supporting them since he came here.

The applicant appeared to have no knowledge of the recent decision to refuse his wife’s Partner visa application, and the Tribunal suggested he seek advice about this urgently, noting his review rights.
The Tribunal asked the applicant about his circumstances prior to coming to Australia in 2010. He provided the following information. He was born at [Hospital] in [District] in Kuwait. It was a rural area at that time and has since become more built up. Sometime after he was born the family moved to [Area] and he mostly remembers that area he studied at primary school and up to [secondary] when Iraq attacked Kuwait and his education was interrupted and he did not study again. He studied at public school but cannot recall the exact years. His sisters studied at different, girls’ schools. His [brother] went to a private school, because at some stage they restricted Bedoons from studying at public schools. Before the invasion his father worked at [a Workplace], but after the invasion he was not able to do that job and worked with his cattle. The Tribunal asked if his father or any family members were in the military. He said some of his uncles served in the military in the 60’s and 70’s. His father had [brothers and sisters], those who are not deceased, remain in Kuwait, in the same area. His mother also has siblings, all remained in Kuwait.
The Tribunal asked the applicant if he left Kuwait before he came to Australia. He said he did not. He worked for his father with the cattle and for two years he worked for a company, doing [work], until he lost his job.
The Tribunal noted he did not mention any of his siblings or other family in his protection visa application. He said he was afraid for their safety because he was targeted when he left Kuwait. He was warned about his safety. Before he left he was involved in disseminating publications, with a group and they stopped two members of the group. He knew they would be after him next and so he left. He was ordered to be caught.
The Tribunal asked the applicant about his driver’s licence. He said he had one in Kuwait, which he presented to VicRoads to get his licence here. He did not have this when he arrived, he had it sent to him afterwards. He does not have it any longer because he lost it.
The Tribunal asked the applicant about his travels outside Australia after he was granted protection. He went to [Country 1] in June 2012 because his wife was there. When asked why she went to [Country 1] at that time, he said it was because of his situation there, he was ordered to be caught so the applicant was unable to return to Kuwait. She went to [Country 1] to meet him. She had lodged her application to join him in Australia and they were waiting to get tests done for the application, but then the situation in [Country 1] became worse and he had to go to Iraq to return to Australia. He tried to apply for a visa for Iraq in [City, Country 1] but he was refused, so then it was suggested to him to go to the land border and try and enter from there. The Tribunal noted that he obtained a visa which is affixed to his travel document, which appears to contain words to the effect that he was granted entry on the basis of being originally Iraqi and the holder of an Iraqi ID card issued in February 2007, and the number is specified. The Tribunal asked the applicant if he showed his Iraqi ID card to obtain this. He said he did not, he only gave money, USD$200 to arrange for a visa. They kept him at the border for a day, and then the next day he got the visa in his document and entered Iraq. He went directly to Baghdad and from there he returned to Australia. His wife came after one month. Her father helped her to enter Iraq. He was able to enter Iraq because he holds a Cl 17 Kuwaiti passport, which is a special type of passport issued to Bidoons, it is silver in colour and only has 24 pages. He was able to get this because he was [an Occupation 2] in Kuwait.[1] The applicant said he does not know anything more about how her father arranged for her entry and assumes he smuggled her in. She went to Nassirya where she has maternal uncles, who have been there for a long time, after being expelled from Kuwait to Iraq. The applicant said he does not know if they have citizenship.
[1] Refworld | Kuwait: Information on Article 17 passports
The Tribunal noted the applicant has travelled four times since then and asked where he has gone. He said he travelled each time to Iraq to see his wife. Each time he has entered on a visitor’s visa, applied for at the consulate in person. When asked what documents he provided to obtain these visas he said he did not provide any documents. As Shia’s they can apply for a religious visa or just a tourist visa. The Tribunal asked the applicant if he has copies of these visas on the travel documents. He said he may have these, but he is not sure if he has all of the travel documents. The representative undertook to provide what evidence he has following the hearing. The Tribunal asked the applicant if he applied on the basis of being an Iraqi citizen. He said no, never. They always treat him very badly at the airport. He has never held an Iraqi passport.
The Tribunal asked if his wife has ever held an Iraqi passport. He said she has never had a genuine one but they paid for a passport for her. Her father arranged it, and he paid for it. The applicant said his agent at that time, [Mr L] told them that she would need a passport to leave the country and it was possible to pay and get one. He provided the money and her father arranged it. The first passport was an S passport and [Mr L] said it was not the right one and they need to get the new one. Then they got the new passport, which is the one submitted with her Partner application.
The Tribunal put to the applicant that information was obtained by the Department which verifies he has an Iraqi ID card of the number stated in the visa label and that his wife’s passport is genuine and recorded in the system. In response the applicant said, he swears, they paid to obtain this passport as directed by the agent and they are not Iraqi citizens.
The applicant confirmed he and his wife had a child born who in Iraq. In response to the Tribunal’s question regarding registration of his birth, he said that they cannot because they are not citizens. The Tribunal put to the applicant that the information before it suggests that the child, being born in Iraq, should be registered and the evidence of his registration should indicate the parents’ citizenship status. The applicant was invited to provide this evidence.
Evidence from [Mr A]
The witness confirmed his relationship to the applicant is paternal first cousin. He confirmed that the family census document provided was to confirm that relationship. It is a census from 1970 and shows his father and the applicant’s father as sons of their father.
The Tribunal asked the witness about his own family composition and location of his siblings. He has [brothers and sisters], all of whom are in Kuwait apart from a brother in Australia and a sister in [Country 3], married to the applicant’s brother. It asked about his knowledge of the applicant’s family composition. He was able to provide details of the names and chronological order of all the siblings in the family, and their current place of residence. The witness was also familiar with the applicant’s past marriage history, its circumstances and that it had ended. He confirmed the applicant’s mother presently lives with her son and a daughter who is [Medical condition].
The witness said he lived all his life in Kuwait until 2008. He studied to [primary school] only at a public school. He had a driver’s licence in Kuwait which he obtained 6 months before he came to Australia so that he had a document to bring with him. He worked as a private [Vehicle] driver in Kuwait and sold [Products]. He came to Australia on a valid visa and subsequently sought protection. After he was granted citizenship he has travelled extensively. He has visited many countries including [Countries]. He visited Iraq 6 months ago for a holy visit. He has been to [Countries] also for religious visits. He has returned to Kuwait 6-7 times to see his mother and family. He has visited the applicant’s family as they live in the same area.
The Tribunal asked about the process of obtaining a visa to visit Iraq. He said he attended in person and showed his passport and paid a fee and it was provided.
The Tribunal asked the witness what he knew about why the applicant’s wife went to Iraq. He said the applicant was sought after in Kuwait , even his father doesn’t speak with him because of the problems, they are all afraid. The Kuwaiti authorities have not renewed his father’s documents.
The witness said the applicant is afraid to return to Kuwait. They are all oppressed by the Kuwaiti government. Before Sadaam they were quite comfortable but since the invasion, their family has suffered. The Tribunal asked the witness whether anyone in his family fled to Iraq after the invasion. He said they did not. One uncle went to [Country 5] but his father stayed in Kuwait. Their family were not supporters of Sadam Hussain. His father was in the [Employer] and they were loyal to Kuwait but after the invasion he was not allowed to return to the [Employer].
The Tribunal asked the witness if he was aware if the applicant had obtained Iraqi citizenship. He said anything can be obtained by paying money in Iraq now. He was there recently for 6 days and he observed this.
Post hearing submissions
On 7 and 28 August 2023 the Tribunal received the following documents from the applicant:
·Translation of a birth certificate for the applicant's son born on [Date], which states parent’s nationality as ‘non Iraqi’. The document was issued [in] July 2023 by [Clinic].
·Translation of [Country 1] visa –issued in Canberra indicating occupation: stateless (bedoun)
·Copies of applicant’s Australian travel documents :
i.[Reference 1] valid from January 2012-January 2014 –and translations of [Country 1] visa issued 4 January 2012 in Sydney and Iraqi visa issued [in] August 2012 at [Location 2, Iraq]
ii.[Reference 2] valid from October 2013 - October 2015
iii.[Reference 3] valid from September 2015 - September 2017
iv.[Reference 4] valid from December 2017 – December 2019 – and translation of Iraqi Visitor visa to Holy Shrines issued by general Consulate Sydney [in] January 2018
·Translation and copy of applicant’s Kuwait birth certificate indicating date of birth [Date 1], and father and mother’s full names and date of issue
·Translation and copy of applicant’s father’s Kuwait birth certificate indicating his date of birth [Date 9] and names of father mother.
·Translation of copy of Marriage Contract relating to marriage of applicant and his wife at [Mosque], referring to applicant and wife as ‘non Kuwaiti’
·Translation of copy of Certificate of Marriage of applicant’s father and mother registered in Kuwait on [Date]
On 8 September the Tribunal requested further information including:
·Copy of the original birth certificate for his child, [number] referred to on the document dated [July] 2023, and if unavailable, an explanation.
·Explanation for how the birth certificate dated [July] 2023 was obtained
·Confirmation of whether an Iraqi ID card for the child [Master K] has been issued
·Copies of all pages of his Australian travel documents [Reference 2] and [Reference 3] showing entry and exit stamps and visas
·Death certificate for applicant’s father.
On 18 September 2023, in response to clarification sought from the Tribunal, the following further documents were provided:
·Statutory Declaration from the applicant explaining how the Birth Certificate issued on 23 July 2023 was obtained (his wife in Iraq engaged a lawyer and provided him their Kuwaiti documents); he did not object to the Tribunal seeking verification of this document; he confirms his son does not have an Iraqi ID document and his understanding is that he is not eligible for this document because they are Bidoon; he no longer has in his possession the Australian travel documents [Reference 2] and [Reference 3] and the bio pages provided were taken from the FOI documents provided by the Department and so he cannot provide evidence of the visas from these documents; he provides a copy of his father’s death certificate showing that he died in Kuwait.
·Copy and translation of applicant’s father’s death certificate issued by Ministry of Health, Central Register for Births and Deaths, State of Kuwait evidencing his death on [Date] in [Location], Kuwait.
·Copy and translation of pink receipt issued by [Hospital] on [Date] for payment relating to caesarean procedure.
On 3 October 2023 the applicant, through his representative, provided further clarification that the only birth certificate document he has is the one issued on 23 July 2023. He submitted there was a translation error in the earlier translation provided which incorrectly referred to “Original cert. date of issue” and a new translation was submitted translating this as “Date of data was recorded”.
CONSIDERATION, FINDINGS AND CONCLUSIONS
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In this case a Notice of Intention to Consider Cancellation (NOICC) was issued dated 23 March 2022. The Tribunal accepts that the delegate reached the necessary state of mind to issue the notice on the basis of its content. No issues were raised by the applicant about the validity of the notice, and the Tribunal is satisfied it contained particulars of the possible non-compliance in sufficient detail for the applicant to know the case he was required to meet.
For these reasons the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The NOICC alleged the applicant has not complied with s101(b) of the Act which required that no incorrect answers are given or provided in his visa application, and provided particulars of information given by the applicant in his protection visa application that were alleged to be incorrect.
In essence, the allegation set out in the NOICC is that the applicant provided incorrect information in his Protection visa application relating to his true name, date of birth and citizenship status, and his fears of return to Kuwait, on the basis that he is not a stateless Bidoon from Kuwait, but rather an Iraqi citizen. It is alleged that the information he provided in response to those questions in the protection visa application form are incorrect, according to information obtained from Iraqi authorities about his citizenship status.
At the outset, in considering the issue of whether there was non compliance in the manner set out in the NOICC, the Tribunal is mindful that is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[2] However, where the existence of facts grounds the exercise of a statutory power, as in cancellation cases, the onus of establishing those facts is on the Minister (or on review, the Tribunal).[3] Although the visa holder must be invited to show that the ground does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. at [25]:
‘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 cause why it should not.’ [4]
[2] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.
[3] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].
[4] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000). While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.
In deciding whether the ground for cancellation is made out, it is appropriate to bear in mind the nature of the allegations and the gravity of the consequences.[5] In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his Protection visa application are, undeniably, serious and the Tribunal takes this into consideration in its evaluation of the information before it.
[5] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 and Sun v Minister for Immigration and Border Protection [2016] FCAFC 52. Eg. The Court in Sullivan observed at [120] ‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’
The applicant has consistently maintained before the Department and Tribunal that he is a stateless Bidoon born in Kuwait and not an Iraqi citizen and that he did not provide incorrect information in his Protection visa application and has given oral and written evidence and provided numerous documents to support his claimed identity.
For the following reasons, the Tribunal is not satisfied there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act.
Is the applicant the holder of an Iraqi ID card and is this evidence of Iraqi citizenship?
The allegation that the applicant is an Iraqi citizen in this case is based on information that he is the holder of an Iraqi ID card as referred to in an Iraqi visa label affixed to his Australian travel document on which he entered Iraq [in] August 2012.
The Tribunal notes country information indicates that Iraqi ID cards are only issued to Iraqi nationals[6] and therefore the issue of whether the applicant is the holder of a genuine ID card is critical to a finding of whether he is an Iraqi citizen. Having considered the totality of information and evidence before it, however, the Tribunal has concerns, discussed further below, about whether there is a sufficient evidentiary basis on which to conclude that the applicant is an Iraqi citizen solely on the verification of the Iraqi ID number in this case.
[6] RRT Country Information Request IRQ40871 - Iraqi ID Cards', Department of Foreign Affairs and Trade (DFAT), 12 September 2012, CX294968

The Tribunal accepts the Iraqi card number was verified by the Civil Status Directorate, which is the body responsible for issuing Iraqi ID cards in Iraq[7] and the authority confirmed the card number is recorded as ‘the latest ID card number issued for [the applicant].’ The authority confirmed the card was issued [in] 02/2007 and provided the personal details recorded in relation to the card number in a specified family register record and page number. The personal, father and grandfather names and name of spouse included on the register record appear to correspond to the applicant, however, other details, including the name of his mother, place and date of birth do not correspond to information he has provided. On the one hand the specificity of the information obtained from the verification, including the specific family register and page numbers, suggests it relates to a genuine document.
[7] Iraq: Travel documents and other identity documents, Landinfo 23 January 2014 Programutviklingsavtalen (refworld.org), p
On the other hand, the following matters raise concerns for the Tribunal. There is no copy of the Iraqi ID card that was the subject of the verification check before the Department or Tribunal. It appears the verification was requested solely on the basis of the card number recorded on the visa label submitted by the applicant. The Tribunal also observes that although the verification was undertaken in 2019, the response indicated the number is the ‘latest ID card number’ issued for the applicant and was issued [in] 02/2007. No reference is made to whether any subsequent cards were issued. Although reference is made to a specific family register record, no copy of this was requested or provided. There is also no evidence before the Tribunal of an Iraqi nationality certificate issued to the applicant.
Against this, the Tribunal has considered the applicant’s consistent denial, in his response to the NOICC and evidence to the Tribunal, that he is an Iraqi citizen and denial that he has ever had an Iraqi ID card. Therefore he cannot and has not provided it. He has provided an explanation for the reference to the ID card in the visa label (arranged through payment of money when he was at the [Country 1]/Iraq border in August 2012 seeking to enter Iraq), which cannot be dismissed as entirely lacking in credibility or reliability, especially when considered in the context of other evidence before it.
Given the applicant’s position, the Tribunal has considered the possibility that the ID card is not a genuine one. Country information before the Tribunal refers to prevalence of fraudulent ID cards and documentation in Iraq[8] with some sources suggesting up to half of the ID cards in use may be false.[9] This significantly diminishes the reliability of the ID card number, even if verified, as the sole basis to conclude the applicant’s Iraqi citizenship in the Tribunal’s view.
[8] Immigration and Refugee Board of Canada 2016, IRQ105418.E - Availability of fraudulent identification documents, 18 February Landinfo Country of Origin Information Centre 2015, Iraq: Travel documents and other identity documents, 16
[9] Ibid
The latest DFAT Country Information Report on Iraq states on this issue:
5.40 Fraudulent documents are cheap and commonly available. Genuine documents obtained through fraudulent means are also common, mostly obtained by paying bribes to officials. Documents issued under religious procedures such as marriage, divorce and custody certificates have weak or no security features. The forms of documentation superseded by the National Identity (ID) Card have weaker security features than the biometric ID cards and may have been issued according to antiquated or unreliable procedures.[10]
[10] Department of Foreign Affairs and Trade (DFAT), Country Information Report Iraq, 16 January 2023, p44.
Since the applicant’s arrival in Australia he has claimed to be, and continues to maintain he is, a Kuwaiti born Bidoon, who resided in Kuwait until he came to Australia. He maintains he had not entered Iraq prior to 2012 and is not, and never was, an Iraqi citizen.
The Tribunal considers, below, the evidence before it relating to the applicant’s claims to be a Kuwaiti born Bidoon.
Applicant’s Kuwaiti origins
The applicant’s original protection claims made upon arrival in Australia in August 2010 was that he was a Kuwaiti born stateless Bidoon who came to Australia from Kuwait. He never claimed to have travelled to Iraq prior to his initial arrival in Australia. He claimed that he first travelled to Iraq in August 2012, after he was granted protection in Australia, and subsequently he travelled there on four occasions between 2013 - 2018, to visit his wife and son who was born there in [Year]. Department movement records support this.
Regarding the applicant’s claims to be a Kuwaiti born Bidoon, the Tribunal has considered his written and oral testimony in his original protection visa application and to the Tribunal at hearing, and the following documents: Kuwaiti birth certificate for himself and his father, father’s marriage certificate and a marriage certificate evidencing his marriage in 2006 in Kuwait. Also before the Tribunal are documents from the applicant’s wife’s Partner visa application lodged in 2013, which includes a Department letter dated 14 April 2012 addressed to the applicant’s wife at an address in [City, Country 1], relating to her earlier Refugee and Humanitarian Visa lodged in October 2011.[11] This is consistent with and supports his claims that they were always in Kuwait, his wife travelled to [Country 1] to await reunion with him and they only went to Iraq in 2012. In her partner visa application the applicant’s wife provided a Kuwait birth certificate and Kuwaiti school records for herself and the applicant’s Kuwaiti birth certificate, and a copy of their Kuwaiti marriage contract dated [Date].
[11] Temporary Partner Visa application 309 -[Ms D] folio 83 included in [Department references]
Department file records also indicate the applicant produced a Kuwaiti driver’s licence issued in November 2007, to Vic Roads to obtain a Victorian driver’s licence.
At the hearing before the Tribunal, the applicant gave evidence of his family composition. He said his father passed away in 2008 in Kuwait, and he has a mother, brother and [sisters] who presently reside in Kuwait, and a sister in [Country 2] and a brother in [Country 3]. The Tribunal notes that he made no mentioned of these siblings in the family composition declared in his protection visa application. When this was put to him at hearing, he said he was at that time frightened for their security and so he did not mention them. The Tribunal now has before it evidence in the form of statements and birth certificates and education documents from the sister and brother residing in [Country 2] and [Country 3]. Both siblings state they were granted asylum in those countries respectively on the basis of their status as stateless Kuwaiti Bidoons. The Tribunal also received evidence , including oral evidence, from [Mr A] at hearing that he is the applicant’s first cousin and knew him in Kuwait. He too came to Australia from Kuwait and obtained protection on this basis. [Mr A] provided a historical family register evidencing his father and the applicant’s father as brothers and was able to give a detailed account at hearing about the applicant’s family composition and his personal knowledge of the applicant in Kuwait. [Mr A]’s sister is married to the applicant’s [Country 3]- residing brother.
A copy of his father’s death certificate, indicating his death in Kuwait in [Year] was provided to the Tribunal following the hearing. This also supports his claims that he and his family remained in Kuwait.
On the basis of the above mentioned documentary, oral and witness evidence before it, the Tribunal finds the applicant was born, educated, married and resided in Kuwait at least up until 2007 (the date of the last document, being the issue of his drivers licence). This evidence was provided by the applicant in his original protection application and in support of his wife’s Partner visa application. He has also given detailed and consistent oral and written testimony about his family background and origins, and the supporting evidence and documentation from related family members supports his claims. The Tribunal also notes the evidence obtained by the Department of the Kuwaiti driver’s licence submitted by him to Vic Roads well before the cancellation proceedings began.
Iraqi citizenship as a Kuwaiti born Bidoon
Having found that he is a Kuwaiti born Bidoon, the Tribunal has considered whether he could have subsequently acquired Iraqi citizenship.
In this context, the Tribunal has had regard to country information which indicates there are Bidoon populations in both Kuwait and Iraq. For example, a 2010 UNHCR report about the stateless population of Bidoon in Kuwait refers to as much as a third of the population of Kuwait was classified as “Bidoon Jinsaya (without citizenship), and that in spite of numerous proposals and draft bills to address the status of the Bidoon, over 92,000 Bidoon in Kuwait remain stateless.[12]
[12] UNHCR 2010, The situation of stateless persons in the Middle East and North Africa, October, Attachment to DFAT Report 1280 (\\NTSSYD\REFER\Research\2011\DFAT\Reports\KWT38633.dfr1.pdf)
In its Iraq Statelessness Study, published on 26 October 2022, the United Nations High Commissioner for Human Rights reported that:
In 1990, following Kuwait’s invasion by Iraq, [….] Kuwait considered Bidoon who fled to Iraq as supporters of the Iraqi regime and affiliated with the Iraqi army, resulting in the government of Kuwait refusing the return of these Bidoons from Iraq to Kuwait. While in Iraq, Bidoon received support from the former regime as a reward for their purported loyalty to Iraq and not Kuwait. They were provided with nationality certificates and passports as “makramiya” (honoured in Arabic) but also benefited from a certain degree of flexibility in registration and the issuance of documentation. Most of the Bidoon in Iraq were naturalized because of their links to tribes in southern Iraq and upon the fact that they did not declare Kuwait as their place of birth. According to UNHCR 2014 study, it seems that most of the Bidoon who still lack nationality documentation are those who continue to declare Kuwait as their place of birth.[13]
Information provided by DFAT and the UNHCR, states 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.[14]
[13] Iraq Statelessness Study: Statelessness and Risks of Statelessness in Iraq: Faili Kurd and Bidoon Communities (September 2022)', United Nations High Commissioner for Refugees (UNHCR), 23 October 2022, p.11, 20221027124658
[14] 'Iraq – IRQ37183 – Bidoons – Status – Treatment', Country of Origin Information Section (COIS), Country of Origin Information Section (COIS), 15 September 2010, CR829A2B4389, see also 'Iraq – IRQ40398 – Al-Janabi tribe – Iraqi Citizenship for Stateless Arabs (Bedoons)', Country of Origin Information Section (COIS), Country of Origin Information Section (COIS), 14 May 2012, p.1, CR0DEDD73381
In its 2018 Country Information Report for Iraq, published on 9 October 2018, DFAT noted in relation to the assistance package ‘makremiayah’ offered by the previous Baath regime for stateless Bidoon under the condition they declared Kuwait not to be their place of birth:
Many Bidoon fled Kuwait when Iraq invaded in 1990, as the Kuwaiti army began to see them as a security threat due to their connection with Iraq. The Kuwaiti government did not grant them re-entry after the war and many remain in Iraq.
The Iraqi government under the Ba’ath Party granted citizenship to approximately 47,000 Bidoon through an assistance package called ‘makremiayah’. To obtain citizenship, Bidoon had to declare that Kuwait was not their place of birth and often needed sponsorship from a local tribal group. After 2003, Bidoon were no longer able to claim citizenship through ‘makremiayah’. Bidoon who were unable or unwilling to accept ‘makremiayah’ remain stateless. Local sources estimate approximately 54,000 Bidoon remain stateless. Stateless Bidoon do not have access to many services and public sector job opportunities, nor can they register land in their own names, sign rental contracts or inherit property. The government does not usually register births and deaths of stateless Bidoons.[15]
[15] DFAT Country Information Report - Iraq - 9 October 2018', Department of Foreign Affairs and Trade, 9 October 2018, Sections 3.83 & 3.82, pp 22-23, CIS7B839419766
The Tribunal notes that country research reports prepared in 2010 and 2012 confirmed the above reported information that Bidoons were unable to obtain citizenship in Iraq since 2003.[16]
[16] Iraq – IRQ40398 – Al-Janabi tribe – Iraqi Citizenship for Stateless Arabs (Bedoons)', Country of Origin Information Section (COIS), Country of Origin Information Section (COIS), 14 May 2012, p.1, CR0DEDD73381 ; Iraq – IRQ37183 – Bidoons – Status – Treatment', Country of Origin Information Section (COIS), Country of Origin Information Section (COIS), 14 September 2010, pp 2-3, CR829A2B4389
The above information suggests that unless the applicant was in Iraq prior to 2003, he could not have accessed citizenship through makremiayah as a Bidoon who came from Kuwait. The Tribunal has found, above, that the applicant was born, educated and married in Kuwait. There is no evidence that places him in Iraq prior to 2003, and he never claimed to have been there then, or any time prior to 2012. The only evidence which supports him being an Iraqi citizen is the Iraqi ID card purportedly issued to him in 2007, but which the Tribunal has concluded above is unreliable on its own to evidence his citizenship.
The Tribunal accepts that the applicant travelled to Iraq in 2012, as evidenced by the visa label, entry stamp and Department movement records. By his own evidence, supported by Department movement records, the Tribunal accepts he returned to Iraq four more times in in 2013, 2014, 2015 and 2018. He travelled on all of those occasions on his Australian travel document, evidence of which show that he obtained a visa from Australia to enter [Country 1] in 2012, and a visa to enter Iraq in 2018.
The Tribunal discussed at some length with the applicant at hearing the circumstances of the birth of his son in Iraq in [Year] and whether he had or could obtain a birth certificate for him. He told the Tribunal that he did not have a birth certificate because they are non Iraqi citizens. Following the hearing he obtained a document, translated as a Certificate of Birth that was issued [in] July 2023. This document indicated the parents as non Iraqi. The applicant confirmed that this is the only birth certificate he has for the child and that his son has not been issued an Iraqi ID card because his parents are non Iraqi. While the Tribunal has not conducted a verification of this document, it notes the applicant did not have any objection for this to be done and it would be an avenue open to the Department to pursue if considered necessary. For present purposes the Tribunal is satisfied that the evidence of the applicant’s son’s birth certificate before it does not indicate his Iraqi citizenship.
Having evaluated all of the material before it, the Tribunal concludes that the evidence and country information does not support a finding that the applicant is an Iraqi citizen. It is not satisfied to the requisite standard of satisfaction required in the context of exercising the power to cancel a visa, that the visa applicant is an Iraqi citizen. The Tribunal accepts the applicant was born and lived in Kuwait and is not satisfied there is a sufficient evidentiary basis to find that he was present in Iraq prior to 2012 as he claims.
Based on the documentary and oral evidence before it, the Tribunal is not satisfied the applicant’s answers to the question in the Protection application relating to his name is incorrect. It accepts that his use of the tribal name following his father’s and paternal grandfather’s name is consistent with Kuwaiti naming conventions.[17] It is not satisfied his answer to the question of his date of birth is incorrect. The answer he provided is consistent with the date of birth in his Kuwaiti birth certificate. The Tribunal is not satisfied the date of birth associated with the Iraqi ID card number is reliable evidence to conclude this information is not correct.
[17] Microsoft Word - kuwaiti (dliflc.edu)
Above, the Tribunal found it is not satisfied the applicant is an Iraqi citizen and therefore it is not satisfied his answers to the questions about his citizenship and reasons for seeking protection are incorrect on the basis that he is an Iraqi citizen.
For these reasons, the Tribunal is not satisfied there was non-compliance by the applicant in the way described in the s 107 notice.
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Meena Sripathy
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.

December, p.22 <

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2209695 (Migration) [2023] AATA 3776

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Zhao v MIMA [2000] FCA 1235

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

[2023] AATA 3776

5 October 2023

Key Legal Topics

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