2216655 (Refugee) - [2023] AATA 4135

2216655 (Refugee) [2023] AATA 4135 (24 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mark Edward Northam
CASE NUMBER: 2216655

COUNTRY OF REFERENCE: Iraq
MEMBER:Melissa McAdam
DATE:24 August 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 24 August 2023 at 10:21am
CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – Federal Circuit and Family Court remittal – incorrect information in the visa application – race – Bidoon – nationality – stateless – Iraqi citizenship – education – return visit to Iraq for marriage – non-refoulement obligations – best interests of the children – family medical needs – indefinite detention – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 36, 46, 97-105, 107-109, 140, 189, 197, 198
Migration Regulations 1994, r 2.41; Schedule 4, Public Interest Criterion 4014
CASES
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Promsopa v MICMSA [2020] FCA 1480
Wan v MIMA (2001) 107 FCR 133
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

This is an application for review of a decision made on 15 September 2017 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).
The delegate cancelled the visa on the basis that the applicant had not complied with s 101(b) of the Act.
The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
The delegate’s decision to cancel the applicant’s protection visa was affirmed on review by the Tribunal (differently constituted) on 24 May 2019. The applicant appealed the Tribunal’s decision to the Federal Circuit and Family Court of Australia. [In] November 2022 the Court made consent orders requiring the Tribunal to determine the application according to law.
The applicant was represented in relation to the review.
Migration History
The applicant arrived in Australia by boat [in] November 2011 on Christmas Island as an unauthorised maritime arrival. He was interviewed by a Departmental officer on [date] November 2011. A Protection Obligations Evaluation interview was also held on 16 January 2012.
The applicant made an application for a Protection (subclass 866) visa on 17 August 2012, which was granted on 27 August 2012. The applicant provided a written statement in support of his Protection visa application. He also provided to the Department of Home Affairs (the Department) copies of the following documents:

–     The applicant’s Kuwaiti Birth Certificate.
–     The applicant’s father’s Kuwaiti Military ID Card dated [in] 1969.
–     The applicant’s father’s Kuwaiti Driver’s Licence to drive military vehicles.
–     The applicant’s Iraqi National ID Card which indicated that he was born in Iraq on [date].
–     Photographs of a building.
Section 107 Notice, NOICC

On 27 January 2017, the Department sent to the applicant an NOICC which set out the following:
I consider that there has been non-compliance with the following section(s) of the Migration Act 1958 section 101(b). This provision relevantly provides that “a non-citizen must fill in his or her application form in such a way that…no incorrect answers are given.”
Evidence held by the department:
1.     The department holds the following evidence that is relevant to this case:
At question 11 of Part B of the Form 866, which states: ‘Do any of the persons included in this application and named in Question 1 have close relatives who are NOT in Australia at the time of application? The applicant answered, ‘Please see appendix A’. In appendix A, the applicant stated:
‘Father: [Father A]
Citizenship(s) & date acquired: Stateless
Country of residence: Iraq
Status in country of residence: Stateless
Mother: [Mother A]
Citizenship(s) & date acquired: Stateless
Country of residence: Iraq
Status in country of residence: Stateless
[Details of various siblings]
Citizenship(s) & date acquired: Stateless
Country of residence: [Various countries]
Status in country of residence: Stateless [or Unknown]
…
Sister: [Sister A]
Citizenship(s) & date acquired: Stateless
Country of residence: Iraq
Status in country of residence: Stateless
Brother: [Brother A]
Citizenship(s) & date acquired: Stateless
Country of residence: Australia
Status in country of residence: Residence
Brother: [Brother B]
Citizenship(s) & date acquired: Australian
Country of residence: Australia
Status in country of residence: Citizen
[Details of other siblings]
Citizenship(s) & date acquired: Stateless
Country of residence: Iraq
Status in country of residence: Stateless
…
At question 19 of part C of the Form 866, which states: ‘Your citizenship at birth’ you answered ‘Stateless’.
At question 20 of part C of the Form 866, which states: ‘Your current citizenship (if different to at birth)’ you did not provide answer. Taking into account your answer at question 19, your answer to this question is therefore ‘Stateless’.
At question 41 of part C of the Form 866, which states: ‘I am seeking protection in Australia so that I do not have to go back to (Give name of country of countries)’ you answered: ‘Please see statement included herewith’. In the statement which you referred to you stated: ‘I am afraid to return to Iraq’.
At question 42 of part C of the Form 866, which states: ‘Why did you leave that country?’ you answered: ‘Please see statement included herewith’. In the statement which you referred to you stated:
‘I have no country. I was born a Bidoon in Kuwait which means I am stateless.
My father was captured by the Iraqi forces around late 1991. Although he served in
the Kuwaiti army since 1969 he was not protected by the Kuwaiti government when
he was captured in late 1991. This was because he was a Bidoon and not entitled
to any protection. It was then my family fled to Iraq, as we were too scared to stay
in Kuwait without any protection.
In Iraq my uncle was able to get my father released.
In late 1994, like most Bidoons, we were rounded up by the Iraqi authorities and
taken to Umm Qasr - the Iraqi authorities wanted to get rid of us, they wanted
Kuwait to take us. Kuwait would not accept us. We were given limited food and
water. Eventually, in about November 1994 the United Nations intervened and we
were able to go back to our homes.
Despite the UN's intervention, we were still not welcome in Iraq. We were stateless Bidoons and denied citizenship. I was unable to complete schooling past the [specified] grade.
This worsened in Iraq for us in 1996. As an example I was kicked out of school in
the first half of the year just for being a Bidoon. Another example is the fact that we
were denied access to public healthcare. We were always singled out by the Iraqis.
In 2003 when the Saddam regime was toppled, the Sunnis lost control of Iraq and
conflict broke out between Shia and Sunni Muslims.
Day by day, year by year the conflict intensified.
In Iraq we lived in [Town 1], Nasiriyah city, Dhi Qar Governorate. This was a majority Shia area. In the whole of [Town 1] there were only about 30 Sunnis. In or around August 2003 our family started building a Sunni mosque for the Sunnis in the area.
Alongside with assisting my father in the shop, I helped with the building of the
mosque whenever I could.
The mosque was completed in the beginning of 2005 - we named it [name] Mosque. This was a Sunni Mosque where the local community would come and pray.
During the period of 2005 and 2008 the sectarian violence between the Shiites and
the Sunnis intensified. This meant that my family and the surrounding Sunni
families were in danger. Being a Sunni family we did not wish to partake in this
violence so my family decided to keep a low profile.
My Cousin [Cousin A] was a very well-known member of the Sunni community and was actively involved in the teachings and the practising of the religion. It was for this reason [Cousin A] was killed in around August 2008. Whilst he was speaking to the people at the mosque a Shiite militia group attacked my cousin at the mosque and killed him with many bullets in his body.
Following the death of [Cousin A], our family decided to close down the mosque asour family were very scared.
It was on or around April 2009 we reopened our mosque after being closed for
around seven to eight months.
In or around February 2010 the Mosque was taken over by the Shia militia and we
were unable to return. We were very scared and stayed in hiding to ensure we
were undetected by the militia that took over our Mosque.
It was in or about April 2011 we felt the threat had calmed down so it was then I
started going to the Sunni Mosque in the city to pray.
On the morning of [a day in] May 2011, my mother had woken to a bullet, which had my name written on a bit of white paper and was sticky taped around the bullet.
My mother and father were crying as they woke me up and explained what they had
found. They feared my safety and immediately started enquiring with people in the
community about obtaining false travel documents for me to flee Iraq.
I did not leave the house until my departure [in] October 2011. During this time I
was in constant fear and worried that the Sunni Militia would kill me just like they
killed my cousin.
I fled Iraq [in] October 2011 and arrived in Australia [in] November 2011.’
Based on this information and meeting all other relevant criteria you were granted a class XA subclass 866 Protection visa on 27 August 2012, under the name [applicant’s name].
Evidence
The Department has information before it which states your parents are Iraqi citizens. By operation of Iraqi Nationality laws, you are also considered to be an Iraqi citizen.
An identity assessment states that your sister, [Sister A], was an Iraqi citizen, and an Iraqi passport was issued to her [in] 2000. On the form 80 provided by her, [Sister A] stated her Iraqi citizenship was granted at birth. A wedding certificate provided by her also indicated that in support of her wedding, her father’s Iraqi passport was provided.
Consideration regarding evidence
Your Protection visa was granted on the basis that you satisfied the Minister that you engaged Australia’s protection obligations under the Refugees Convention. Part of your claims were that you could not return to Iraq due to being stateless and being denied rights in Iraq based on this status. These claims were fundamental to the determination that you are a person to whom Australia has protection obligations.
On 29 June 2012, an Independent Protection Assessment (IPA) recommended that you be recognised as a person to whom Australia has protection obligations. It was found that you had a well-founded fear of persecution in Iraq partly based on your status as a member of a particular social group, that being “Stateless persons in Iraq without protection”.
Based on evidence available, it appears your father is an Iraqi citizen, and was so at the time of your Protection visa application. Through application of Article 4 on Iraqi Nationality (1963), you are deemed to be an Iraqi citizen through your father.
Given the evidence as explained above, I consider you have not complied with section 101(b) of the Act. Taking into account that you are an Iraqi citizen, and not stateless as claimed, it appears that your claims provided on the Protection visa application in relation to your statelessness, is unsupported.
Particulars of the Non-Compliance
On the material presently before me, I consider that you have not complied with Section 101(b) of the Migration Act in relation to the following answers you provided in your Protection visa application:
At question 19 of part C of the Form 866, which states: ‘Your citizenship at birth’ you answered ‘Stateless’. This is incorrect because you are an Iraqi citizen and were so at the time of your Protection visa application. Therefore your fears of persecution based on being stateless in Iraq are incorrect.
At question 42 of part C of the Form 866, which states: ‘Why did you leave that country?’ you answered: ‘Please see statement included herewith’.
…
This statement is incorrect because you are an Iraqi citizen and were so at the time of your Protection visa application.
Furthermore, departmental records indicate that you travelled to Iraq between [February] 2014 and [March] 2014, which also indicates that your fears of persecution based on being stateless in Iraq are incorrect.
Consequently, I consider that you have not complied with sections 101(b) of the Act as it appears that you have provided incorrect answers to questions on the application form and in information provided in support of the application form. If you have failed to fill in your application form in such a way that no incorrect answers are given or provided your visa may be cancelled.
Possible reassessment of non-refoulement obligations
The response you provide to the information/observations made and put to you in this Notice may be used to re-assess Australia’s non-refoulement obligations in relation to you.
Your response to the following additional information will also be considered:
•    I note that you returned to Iraq after the grant of your Protection visa. Your actions appear to be in contradiction with your claims that you would be persecuted if you that Australia does not have non-refoulement obligations in relation to you.
•    Information before the Department and noted above indicates that you may have provided incorrect information regarding your nationality. The fact that you appear to be a citizen of Iraq, rather than stateless as you previously claimed, may be considered as evidence that you misrepresented your situation in an attempt to gain a positive outcome on your Protection Visa application. Further, and in light of this, a finding may be made that Australia does not have non-refoulement obligations in relation to you
Response to the NOICC
On 05 February 2017, the applicant responded to the NOICC as follows:
a)   He was born in Kuwait, where he was stateless.
b)   When his family moved to Iraq they managed to obtain Iraqi citizenship.
c)   There is no conflict in his statement when he stated he was stateless.
d)   The applicant returned to Iraq between [February] and [March] 2014 because of his marriage. He stayed at his wife’s family’s home and was in hiding there.
e)   He provided a translated copy of his Iraqi marriage certificate.
International Treaties Obligation Assessment
The Department conducted an International Treaties Obligation Assessment (ITOA) on 17 February 2017, which concluded that there was no real chance of the applicant suffering serious harm, or a real risk of him facing significant harm, in case of his return to Iraq. The ITOA assessment essentially concluded that the applicant was not a person in respect of whom Australia had protection or non-refoulement obligations.
Delegate’s Decision
The delegate determined that the applicant had not complied with his s 101(b) obligations. The delegate weighed up the considerations and decided to cancel the applicant’s visa.
Information to the Tribunal
In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record.
Pre-Hearing Submissions, 2018
On 31 October 2018 the applicant informed the Tribunal that he had married in Australia [in] August 2018. He enclosed a copy of his NSW Marriage Certificate.
On 6 November 2018 the applicant provided a written submission to the Tribunal outlining the following:
-That he had provided to the department his Iraqi ID card on which the Iraqi authorities wrote “whatever they felt like”.
-He is a Bidoon born in Kuwait and fled with his family to Iraq when he was [age] years old.
-His Iraqi ID Card and his Kuwaiti Birth certificate confirm he is a Sunni Muslim.
-He referred again to his protection claims in Iraq.
-He stated in his previous Department interview that he has two siblings in Australia; [and various siblings in specified countries].
-He explained in his previous Department interview that he had been given an Iraqi ID Card in Iraq and he was allowed to work there but not in government positions. He was also expelled from school as a Bidoon.
-He has a Bidoon accent and even in Australia people know he is Bidoon by the way he speaks.
-He complied with s 101(b) as during his interviews there was not much emphasis on his citizenship. He was scared and nervous during the interviews.
-He acknowledges that there are unanswered questions in his form 866 but he did not have schooling and cannot speak or write English.
-He attached current DFAT Travel Warnings for Iraq and news items regarding the security situation in Iraq.
Tribunal Hearing, 13 November 2018
The applicant appeared before the Tribunal (as previously constituted) on 13 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The following is a summary of the information provided by the applicant at the hearing:
a.He is not working. He is receiving Centrelink payments. He was previously a carer for a friend. The applicant’s brother in Australia also helps support him. The applicant has also borrowed money from a friend.
b.The applicant’s date of birth is [date]. He was born in Kuwait in Al Jahraa.
c.The applicant’s then representative confirmed there is no issue with the NOICC. She stated that the applicant provided correct information to the department.
d.The applicant’s father and [specified siblings] are still in Iraq. His mother has passed away.
e.The applicant’s father lives in Al Nasiriya. His [specified siblings] are also living there in separate areas. The applicant’s father does not currently work. His brothers can’t work currently.
f.The applicant has a total of [number siblings]. One brother and one sister are in Australia, [others are in specified countries]. Some work and some don’t. Some study.
g.The applicant’s brother and sister in Australia both have families here.
h.The applicant is married. His wife is in Australia.
i.He had a previous wife he divorced. Her name was [name]. She was born in [year] maybe. She has not been to Australia. She did not apply for a visa to Australia. The applicant divorced her last year maybe in May or April.
j.The applicant’s current wife is [Wife A]. The applicant met and married her this year. She is from Iraq. She has been in Australia for four or five years. She lived in Basra in Iraq with her family. She is Iraqi, not Bidoon. She was brought to Australia with her family by her Dad. The applicant does not know what class of visa his wife has but she has a permanent visa.
k.The applicant and his wife do not have children.
l.The applicant’s brother in Australia is [Brother A]. He came to Australia in about 2010. He has Australian citizenship. He had a protection visa. [Brother A] is Iraqi born in Kuwait. The applicant’s sister in Australia is [Sister A]. She came to Australia in about 2000 maybe. She has Australian citizenship. She got permanent residence through her husband. She was an Iraqi national.
m.The applicant has friends in Australia. He knows a lot of people but does not have close friends.
n.He has not done any study or training in Australia. In Iraq his father had a shop selling food for stock and the applicant would help him in the shop.
o.The applicant was unable to find work in Australia. He was just a carer and received a CentreLink carer’s allowance. He cared for a friend who was not a close friend. The applicant cared for him because he was sick. The applicant did this for two or three years between about 2013 and 2015.
p.The applicant’s wife lives with him. She studies English at [a college]. She is looking for work.
q.In Iraq the applicant lived in Nasiriya in [Town 1]. He lived with his family there. He has not lived anywhere else in Iraq.
r.He arrived in Australia in November 2011. Since then he has returned to Iraq twice. The first time was in 2013. He was there for maybe two months. He went to Nasiriya. He didn’t do anything while he was there. He was at home and did not go out. His mother was sick. The applicant saw her for three days and then she passed away in hospital. The applicant used his Australian travel document to go to Iraq.
s.The applicant was scared and unable to go out in Iraq while he was there in 2013. He was unable to be free there. His mum was at home, he did not see her in hospital. She passed away in hospital in [Country 1]. The applicant’s brother was living there.
t.The applicant arrived in Iraq and saw his mother for three days and then she was taken to [Country 1] where she passed away after about ten days. The applicant stayed in Iraq for two months because after his mother passed away he had to spend the required 40 days mourning with his family
u.The applicant returned to Iraq in February 2014. He went to Nasiriya via the Basra airport. He went there to get married. He married in the same month that he arrived. While he was in Iraq he did not do much and then came back. He didn’t leave his house at all. He was at his aunt’s house. He stayed there five weeks. He could not stay longer because there are problems in Iraq.
v.The applicant provided a marriage certificate to the department which includes a different name and date of birth. in Iraq they just generally guess a date of birth. They give the year but just choose any month. But the document is true and original. His name is the same. ‘[specified part of applicant’s name]’ is his grandfather’s name.
w.A lawyer from immigration helped the applicant prepare his Protection visa application. The applicant gave the lawyer the information, it was true and correct. The applicant signed the application form. He had an interpreter at the time the application was prepared. In the application he described his parents and siblings as stateless. He meant they were stateless in Kuwait. In Iraq they all have the ID. He would not have provided his Iraqi ID document if he was trying to say he and his family were stateless in Iraq. He does not know why there was confusion.
x.Originally the applicant’s family were from Iraq. His parents and he were all born in Kuwait. When he and his family went to Iraq they were given citizenship documents. They received an ID Card which is considered a citizenship document in Iraq. This happened when he was young, perhaps in 2007. They were also given cards in 2014. The old one says he was born in Iraq and the new one says he was born in Kuwait and gives more accurate information. He has submitted both ID cards to the Tribunal. The member told the applicant she had not received any ID cards. The applicant’s representative stated that she had sent the cards for translation but had not provided them to the Tribunal yet but intends to.
y.The Tribunal member put to the applicant that he had written that his parents and all his siblings, apart from [Brother A], were stateless in Iraq. The applicant responded that in Iraq they are called stateless because of how they speak and look.
z.The Tribunal member put to the applicant that he had written in his statement that he had no country and that they had no right to health care and higher education in Iraq. He responded that he gave his information to the lawyer. It is true the UN interfered to help them get citizenship in Iraq but in the beginning they were not given Iraqi citizenship. On the card it says it is an ID but it is also considered a citizenship document and people can move around with it.
aa.The Tribunal member put to the applicant that his [Sister A] had stated she had acquired Iraqi citizenship at birth. She also provided her marriage certificate showing her father had provided his Iraqi passport. The applicant replied that yes they were given citizenship and were all given Iraqi passports. There is corruption in Iraq and you can get these things. The applicant obtained an Iraqi passport in 2011. The smuggler kept it. The applicant paid to obtain the passport but is not sure if it was true or fake. He is entitled to an Iraqi passport but the process would take a very long time without payment.
bb.The Tribunal member put to the applicant that he was granted a Protection visa partly on the basis of being stateless. The applicant responded that maybe it was unclear back then and he could not provide all his information. He was very young back then.
cc.The applicant stated that his visa should not be cancelled because he gave his Kuwaiti Birth Certificate and his Iraqi Citizenship Certificate. He fears persecution and has been threatened. The situation in Iraq is in the news. His mother passed away. He lost his first wife and has no one there. By ‘lost’ he means he divorced his first wife because he cannot live there and she cannot come here.
dd.He is married in Australia. It will ruin their lives if his visa is cancelled. His wife cannot go back to Iraq with the applicant because there is no safety there. All of her family are in Australia.
ee.There are a lot of gangs and militias and killings in Iraq. He is a Sunni Muslim and he is threatened by the majority Shia in the south. He cannot live there.
ff.The member discussed the country information submitted by the applicant regarding the IS and fighting in Iraq. The member put to the applicant that most of the area claimed by IS had been recaptured and that casualties have reduced significantly. The applicant responded that there is no safety in Iraq and a large number have migrated. There are many living in neighbouring countries in camps. There are still explosions happening. Iraq is mostly governed by militias. No country allows you to go to Iraq, even Arabic countries. There is no safety there.
gg.The applicant’s father and [siblings] rent homes in Nasiriya.
hh.When he returned to Iraq no one knew he was there. He stayed at his aunt’s home. His mother meant everything to him. His marriage there also happened at home and he did not have a celebration.
ii.The Tribunal put to the applicant that he had stated previously to the department he stayed at his wife’s family’s home when he went there in 2014, not his aunt’s home or his own home as he had stated during the hearing. The applicant responded yes he stayed at his aunt’s house and his family came and met him there.
jj.The Tribunal put to the applicant DFAT information regarding Bidoons, Sunnis and southern Iraq. The applicant responded there is danger. Sunnis are a minority in the south which is mostly Shia. There is always war against DAESH or a militia, kidnapping, and danger. The applicant has no rights in Iraq. Since 2003 Sunnis have faced serious problems. If he lives in Iraq he will have to join a militia or a movement.
Post-Hearing Submissions, 2018 and 2019

On 22 November 2018 the applicant submitted copies of the following documents:
-A copy and English translation of the applicant’s Kuwaiti Personal ID Card.
-A copy and English translation of the applicant’s Iraqi Civil Status Identification Card, issued in [2014]. It records the applicant’s place of birth as ‘Kuwait’ and that he is married.
-A copy and English translation of the applicant’s Iraqi Citizenship Certificate, issued [in] 2007. It records the applicant’s place of birth as [place] and references Iraqi citizenship “in accordance with Clause 3/A of the Iraqi Citizenship Act”.
-The applicant’s Australian Travel Document issued [in] December 2013. It shows Australian visa and exit and entry stamps; Iraqi visas issued in December 2012 and February 2013 as well as exit and entry stamps to Iraq in 2012, 2013 and 2014.
On 21 May 2019 the applicant submitted a Statutory Declaration from his wife who explains she is pregnant with the applicant’s child and that both she and the baby need the applicant to remain with them in Australia. The applicant also attached medical records confirming his wife’s pregnancy and due date in July.
Pre-Hearing Submission, 2023
On the evening of 7 August 2023 the applicant’s representative submitted the following:
–    A written submission from the representative.
–    NSW Birth Certificates for the applicant’s [children]: [names and dates of birth].
–    The NSW Marriage Certificate for the marriage [in] August 2018 between the applicant and his wife [Wife A].
–    Australian Citizen Certificates for the applicant’s [children], [named].
–    An Australian Citizen Certificate for the applicant’s wife, [Wife A].
In the representative’s submission he sets out the following:
… We submit that the applicant’s [young] Australian children are central to the decision as to whether there are reasons not to cancel the Protection visa, as the best interests of these Australian children should be considered as a paramount interest in the case.
The legislation regarding s109 cancellation provides an opportunity for a decision-maker to cancel a person’s visa, but specifically provides a discretion for the decision maker not to cancel the visa if there are circumstances present that warrant such an action. In the case of [the applicant] and his Australian wife and [children], we submit there are indeed such circumstances present.
…
Should the applicant’s visa be cancelled and the applicant is required to lodge an offshore partner visa application, the 24 to 36 month period that these applications currently take to process would prevent [the applicant] and his partner from being able to together provide critical support and paternal care to their [very young] Australian children
The dire circumstances that would be caused by the applicant being required to be away from his partner for 2+ years as an offshore partner visa is processed are worsened by the fact that the applicant as a result his departure from Australia would enliven clause 4014 in Schedule 4 of the Migration Regulations 1994 (Cth) which would result in a 3-year exclusion period for all temporary visitor visas including visitor visas unless waived. Furthermore, current policy regarding the genuine visitor policy criteria as described in PAM3 could prevent the applicant from being granted a visitor visa as he would not be engaged in tourism or visitor activities. As a result, unless a 4014 waiver was granted which is by no means a certainty, the applicant could be prevented from visiting and providing critically necessary emotional support to his partner and [children] for a period of 3 years or until an offshore partner visa is processed, which can take 24-36 months given the current severe backlog of partner visa applications.
The amount of time the applicant would likely be outside Australia and away from his partner and Australian children could be anywhere from two to three years given current processing backlogs and the 4014 and genuine visitor issues discussed above, which could deprive the Australian sponsor and their Australian children of the critically important support of the child’s father during very important parts of both of their lives.
The other alternative of the couple together taking the Australia children back to the applicant’s home country and away from Australia for years would also represent a severely negative impact on the baby as it would subject the Australian children to substantially inferior healthcare, sanitation and basic living conditions in the applicant’s home country.
Given the severe and negative impacts on the applicant, Australian sponsor and Australian children as described above and taking into account Australia’s obligations regarding the best interests of the child under the United Nations Convention on the Rights of the Child (CROC), we submit that the negative impacts on the Australian children specifically establish compelling reasons why the applicant’s visa should not be cancelled.
If the applicant is forced to leave Australia, leaving behind his partner and young children, this will cause a host of negative impacts on the applicant, Australian sponsor and the Australian children including:
Consistency and quality of Child Care issues caused by separation of applicant and sponsor for an extended period of time
• With no onshore partner or family to offer support and a requirement to work the only option for the sponsor will be to place [their] children in a commercial infant/toddler daycare situation which is a nonoptimal situation for the children.
• The likely lengthy separation will be a source of intense emotional distress for both parents and so affect the quality of care the parent can provide. The child care provided by the sponsor will be significantly degraded by: the emotional stress of maintaining a long distance relationship with the offshore applicant; coping with little onshore family support; the mental, physical and financial burdens of raising [their] young children as a single mother.
• Both the child, and the parent-child relationships, will be affected by an emotionally distressed parent, especially in this situation of a lengthy and unknown period of separation.
• Forcing the sponsor to act as a single mother will promote feelings of: fear; worry; insecurity; anger; a sense of loss of the applicant, loss of the relationship and loss of a whole way of life; guilt; loneliness; loss of self-confidence. These are not appropriate feelings to force on a new father and mother. These feelings will be intensified, and if treated resurrected, by visits to the applicant and the return to Australia at the end of each visit and the financial strain of the forced separation.
• Forcing the sponsor to act as a single mother will alter the marriage, marital stability and sense of cultural identity by introducing feelings of rejection and being torn both between her country and her partner. There could be significant effects on long term individual happiness.
• Forcing the sponsor to act as a single mother may increase her requirement for government based mental, physical, financial and infant-care support.
Child Welfare issues caused by separation of applicant and sponsor for an extended period of time
• Separation for the duration of an offshore application risks secure attachment between father and children. Forcing the sponsor to act as a single mother will risk post-natal depression in the mother, which can affect secure attachment between mother and child. Placing both secure attachment and mental wellbeing of child, mother and father at high risk is a lot to ask.
• Children whose biological parents have been separated on average have worse outcomes in terms of social, emotional and cognitive development (see “Consistency and quality of Child Care”). A baby’s brain is only partially formed at birth and the baby’s earliest experiences have a lifelong impact on their mental and emotional health. Separation would significantly affect the environment and quality of care, so significantly affect the child’s mental and emotional health (see “Consistency and quality of Child Care”).
• With the applicant offshore a situation would be created that actively promotes each of the key factors that increase the effect of separation on the children:
o The sponsor and applicant’s ability to offer both warm and competent parenting. The sponsor will be stressed and isolated, it will be draining to remain warm and hide to the developing children the stress of separation and loss of way of life. Parenting competence is significantly improved with both parents together.
o The sponsor and applicant’s ability to maintain a good relationship (between the parents). The strain of single parenting will ask a lot of the couple. The relationship will be suddenly introduced to the [avoidable] resultant stress and potential feelings of fear; worry; insecurity; loss; guilt; resentment; isolation; desperation; failure; which would not occur if not forcibly separated.
o Maternal mental health
o Financial hardship
o Recurring changes in family circumstances. The applicant moving offshore, then continued financial instability and international visits for uncertain time frames, then the applicant repatriating back to Australia.
• Separation undermines a child’s sense of security and trust that adults will be available.
We further note Article 3 on the UN Convention on the Rights of the Child:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
Given the substantial and profound negative impact on the Australian sponsor and Australian young children if the applicant were forced to leave Australia and be away from his family for 2-3 years waiting for an offshore partner visa with a 4014 temporary visa exclusion period imposed, we submit that the evidence and information with this submission clearly indicates that substantial reasons exist to not cancel the applicant’s visa.
…
Tribunal Hearing, 8 August 2023
The applicant appeared before the Tribunal on 8 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [Wife A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The following is a summary of the information provided by the applicant at the hearing:
a.The applicant met his current wife through family connections. He is not related to her. They had a marriage ceremony with a big reception. The applicant’s brother and sister in Australia and their families came to the celebration. The applicant’s wife’s family also attended. Her parents and siblings live here with their families. The applicant and his wife’s marriage was conducted by a Sheikh in a Shia ceremony. The applicant’s wife is Shia. The applicant is Sunni but there is no discrimination as there is freedom in Australia.
b.The applicant’s wife has not returned to Iraq since she came to Australia.
c.The applicant married his previous wife in Iraq in 2014. She was his [extended relative] and it was arranged by their families. The applicant’s family and his wife’s family all attended the marriage celebration in Iraq. The applicant is not sure if their marriage was conducted in a Shia ceremony but the government is Shia. The applicant obtained his Iraqi Marriage Certificate from the government official in Nasiriya.
d.The applicant has Iraqi citizenship. He does not know when his father obtained the citizenship for the family or how he did so. He has not thought to ask his father these things. His father is still alive and lives in Nasiriya with [some] of the applicant’s [siblings]. [Some of those siblings] in Iraq are ill.
e.The applicant’s Iraqi citizenship is recognised in Iraq. He obtained an updated National ID Card in 2014 which includes his correct place of birth, Kuwait, and shows he is married. There is nothing about the applicant’s Iraqi nationality or identity documents to indicate he is ‘bidoon’. The applicant and his family had the same rights and status as other Iraqi citizens in Iraq but people would look at them in a different way because their dialect is different.
f.The applicant practices his religion. He mostly prays at home. He rarely attends the mosque but does so during Ramadan and Eids. He cannot say which mosque he attends as all are a house of worship. In Australia they learn to be free.
g.The applicant’s brothers in Iraq live like normal people. They live by themselves and don’t mix with others. They have an extended family in Iraq. They don’t visit Kuwait because it is difficult and expensive for Iraqis to get visas to Kuwait.
h.The applicant has siblings in other countries. They sometimes visit Iraq, for example when their father is ill.
i.The applicant cannot return to Iraq because two years ago there were demonstrations and they killed people in Nasiriya, it was the religious sects. The Tribunal put to the applicant that information indicated that the protests two years ago were reportedly against the government for economic reasons. The applicant agreed with this and said a search would show how the government was killing people in Nasiriya.
j.The Tribunal asked why it is safe for the applicant’s family to live in Iraq but not for him. The applicant responded because he was threatened. His family don’t mix much but the applicant would need to take his children to doctors and get them milk. The Tribunal asked if his brothers in Iraq have families too and the applicant responded yes. The Tribunal put to the applicant that this would mean they would need to do similar things for their children too. The applicant responded yes but because they live there they are known in the area but if the applicant comes from outside it is different.
k.The applicant did provide false information in his visa application in regard to his Iraqi citizenship. What he did was wrong but when he came to Australia he came by sea and he was drowsy. In the camps everyone was saying something, talking about what would be successful or not. He does not know why he did not state he had Iraqi nationality in his Protection visa application. If he was trying to hide his Iraqi nationality he would not submit his Iraqi document. His brother and sister were here in Australia and they are Iraqi. The applicant was vomiting from the boat journey when he arrived in Australia. Then he was afraid and confused. He had to deal with officials and interpreters and people taking photos in a way he had not previously encountered.
l.He can’t go back to Iraq and he can’t take his children there. He won’t be able to work and support his family in Iraq. In Australia, when he had the right to work, he worked [in specified jobs]. He would like to start a [specified] company in Australia one day. He would not be able to do this in Iraq. He cannot provide for his family’s needs and futures in Iraq. There is no work available to him in Iraq.
m.He has not broken any laws in Australia.
n.He was a carer for a sick friend for a time. He would take the man to his medical appointments, clean outside the house, and sit with him.
o.He returned to Iraq twice because he had to. The first time was because his mother was very ill. The second time was because he had become engaged to his first wife and it was like a tribal thing that he had to go to Iraq.
p.His children are sick, each of them suffers from ailments. He has to look after them and take them to the hospital. He would not be able to do this if he is in Iraq. He will submit more medical information regarding his children’s health to the Tribunal.
The following is a summary of the information provided by the applicant’s wife at the hearing:
a.She is now a citizen of Australia. She is from Basra in Iraq. Her father brought her with his family to Australia about ten years ago. Her parents and siblings are all in Australia. Her father had previously come to Australia by boat and obtained a Protection visa here.
b.She arrived in Australia about seven years ago. She has not been back to Iraq since. She cannot go back to Iraq because she is settled with children here. Australia is much safer than Iraq. It is unsafe to go to the hospitals or the shops in Iraq. She would be scared in Iraq. There are attacks sometimes. The hospital treatment is also not good in Iraq.
c.She has some uncles in Basra still but she does not know the situation there.
d.Her husband gives her support in Australia. When she has appointments he stays with the children and takes the kids out with him. She sometimes has to stay with [one child] in the hospital and her husband brings her food and fresh clothes. [One child] has asthma and her husband sometimes has to take [them] to hospital in the middle of the night.
e.She can’t go anywhere without her husband’s support. She has monthly dental appointments for problems with her teeth. She also has a skin problem. She will submit some medical information about her health issues.
f.There are no concerns amongst her friends and family in Australia that her husband is Sunni but there would be in Iraq.
g.Iraq would not be safe for her children and they would have nothing there. In Australia she and her children can go out when they wish but this would not be safe in Iraq. In Iraq it would be shameful for her to go out by herself but she can in Australia.
h.There are opportunities here for her and her children that they would not have in Iraq. There is schooling and education available, plus training and courses. She would like to have a career in [specified] work and is thinking to commence studies in this area. She could not do this in Iraq. It is mainly well-educated women who can work in Iraq.
i.She cannot live without her husband and her children can’t live without him.
j.The applicant’s representative undertook to provide further documents regarding the children’s medical conditions by 22 August 2023.
Post-Hearing Submission
On 23 August 2023 the applicant submitted the following documents to the Tribunal:
–A discharge referral from [a named] Hospital, dated 21 July 2023, regarding the applicant’s [named child], and [their ailment].
–A medical referral, dated 21 July 2023, of the applicant’s child [named] to a paediatrician orthopaedic unit at the [named] Hospital.
–A medical certificate, dated 9 August 2023, for the applicant’s child [named], stating [their symptoms] and requires regular care.
–A medical certificate, dated 9 August 2023, for the applicant’s child [named], stating [a condition which] requires multiple visits to doctors for management.
–A medical certificate, dated 9 August 2023, for the applicant’s child [named], stating [their conditions].
–A letter from the applicant’s wife’s doctor, dated 21 August 2023, stating that the applicant’s wife suffers from a skin infection.
Country Information
DFAT’s latest country information report on Iraq, published on 16 August 2023, contains the following:
Economic Overview
Iraq’s economy is predominantly state-run and dominated by the oil sector, which accounts for more than 85 per cent of government revenue and almost half of GDP.
Iraq’s economy contracted sharply in 2020 due to COVID-19 and falling global oil prices. It recovered in 2021 to achieve modest growth of 2.8 per cent. Soaring oil prices in 2022 drove oil revenue to its highest level in 50 years. Although classified as an upper middle-income country by the World Bank, Iraq’s social indicators, including on health, education and poverty, are poor. There is significant inequality, and 19 per cent of the population lives below the national poverty line of approximately AUD 110 per month.
Unemployment is high, and labour force participation is among the lowest in the world. Women and young people are particularly likely to be unemployed; women make up just 13 per cent of the labour force, and more than a fifth of working-age young people do not have a job and are not engaged in education or training. The public sector is the largest employer but demand for public service employment outstrips supply of jobs. The World Bank’s Spring 2022 Iraq Economic Monitor assesses Iraq will continue to struggle to attract foreign investment due to its volatile security environment, high levels of corruption, and administrative inefficiencies.
Climate change is having a significant impact on economic activity and quality of life in large parts of Iraq. Low rainfall – the second lowest amount in 40 years – has caused widespread food and water security issues. Production of strategic crops such as wheat and barley dropped 70 and 90 per cent respectively in 2021. Other impacts include very high and increasing temperatures, frequent sand and dust storms, and flooding. The IOM assesses that climate change is a significant and increasing driver of migration both within and out of Iraq. According to IOM estimates, 20,000 people were internally displaced due to water scarcity in Iraq in 2021. With 18 per cent of the labour force employed in the agricultural sector there is little or no capacity in the private sector to absorb labour if farmers migrate due to climate change.
…
Security Situation
Security incidents occur often and without warning, including rocket attacks, mortar attacks, attacks with improvised explosive devices (IEDs), grenade attacks, small arms fire and assassinations. Targets have included security forces, government offices, diplomatic missions, US-led coalition forces, Iraqi and Turkish military facilities, checkpoints, police stations, recruiting centres, airports and public transport centres, places of worship and religious gatherings, markets, non-government organisations, schools and universities, and civilian infrastructure. Violent crime is common, including kidnapping, murder and robbery. Other serious crime includes drug and people trafficking, prostitution and illegal organ harvesting. Organised criminal gangs, militias and armed tribal groups are significant threats.
… Gun violence is common throughout Iraq. Gun ownership is among the highest in the world, and most households own at least one firearm. The ubiquity of weapons and a strong ‘honour’ culture mean minor disputes often rapidly deteriorate into violence, including murder.
Despite the territorial defeat of Da’esh in December 2017, Da’esh continues to launch attacks on security forces and civilians in Iraq, including suicide bombings and IED attacks. The group operates from safe havens in the Western Desert and along the disputed territories between federal Iraq and the KRI, supported by Da’esh fighters based in Syria. In 2021, Da’esh carried out more than 1,000 attacks in Iraq, killing or injuring over 2,000 people. These included a suicide bombing in Teyeran Square that killed 32 people in January 2021 and an IED attack in Madinat al-Sadr that killed 35 people in July 2021. Both attacks targeted Shi’a populations. According to the US Department of State, Da’esh also attacked electricity and water infrastructure, and abducted and killed civilians and security personnel, throughout 2021.
… Large-scale, prolonged violent protests began in major cities in October 2019 and continued until mid-2021. These protests came to be known as the ‘Tishreen’ (October) protests, and participants as ‘Tishreenis’. Security forces, allegedly with the support of Iranian-aligned militias, used tear gas, water cannons and live ammunition against protesters, resulting in hundreds of deaths. In July 2022, in a separate period of unrest following the October 2021 elections, supporters of influential cleric Muqtada al-Sadr breached the International Zone in Baghdad (the partially-secured centre of the international and government presence in the city) and staged a sit-in at the Iraqi parliament that lasted several days. They were protesting the nomination by al-Sadr’s opponents of Mohammad al-Sudani as prime minister and attempting to inhibit government formation. In August 2022, al-Sadr’s supporters moved their protest to the Supreme Judicial Council, before forcing their way into the Presidential and Government Palaces. The protesters later clashed violently with groups believed to include Iranian-aligned militias, exchanging small arms and rocket fire continuously for 20 hours. At least 20 people were killed and more than 300 injured in this violence.
Iraq is one of the world’s most landmine-affected countries. There are reportedly more than 2,000 hazardous mine areas nationwide from numerous conflicts. Border areas are particularly affected, and areas previously controlled by Da’esh have also been heavily mined, including with booby-traps. Explosive hazards pose risks at farms, schools, hospitals, water treatment facilities, power plants, bridges and other infrastructure, and have prevented the safe return of displaced people.
…
As of 2006 (the latest year data was available), an estimated 54,000 undocumented ‘Bidoon’ (stateless) individuals were living as nomads in the desert in or near the southern governorates of Basra, Thi Qar and Qadisiyyah. This community mostly descends from nomadic Arab tribes who never received Iraqi citizenship upon the state’s founding. An incomplete UNHCR survey of Bidoon populations in southern Iraq in 2021 found that many had been able to claim citizenship, however it is likely that many others, who were not reached by the survey, remain stateless and undocumented. The Bidoon should not be confused with the Bedouin, groups of nomadic sheep and camel herders who predominantly live in western and north-western Iraq. DFAT is unaware of Bedouin experiencing issues accessing citizenship or Iraqi state services.
…
Conditions for returnees
The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted among Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. There is considerable evidence that Iraqis who are granted protection by Western countries often return to Iraq, sometimes only months after securing residency abroad, to reunite with families, establish and manage businesses or take up or resume employment. Based on discussion with multiple sources, DFAT assesses it is highly unlikely a failed asylum seeker would face mistreatment on return to Iraq solely on the basis of his or her having sought asylum overseas.
…
Prevalence of Fraud
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.

A 2023 UNHCR Factsheet on Iraq refers to the UNHCR helping stateless Bidoons acquire Iraqi nationality, with a study showing that about 97% of Bidoons have obtained nationality in Iraq.[1]
[1] UNHCR, 2023, ‘UNHCR IRAQ 2022 ACHIEVEMENTS’, 30 APRIL.
According to available country information Bidoons are people who were left stateless when Kuwait became independent in 1961.[2] The word ‘bidoon’ is Arabic for ‘without’ and has become shorthand for bidoon jinsiya (‘without nationality’).[3] Bidoons made up the majority of the Kuwaiti army and, following Iraq’s invasion of Kuwait in 1990, many had their loyalty to Kuwait questioned, resulting in half of the country’s Bidoon population of 250,000 fleeing or being deported to Iraq.[4] Many Bidoon who had fled from Kuwait to Iraq were later denied re-entry.[5] The Iraqi government offered Bidoons the opportunity to obtain Iraqi citizenship through an assistance package called makremiayah, which involved declaring that Kuwait was not their place of birth and often required sponsorship from a local tribal group.[6]
[2] European Network on Statelessness, 'Country Position Paper: Statelessness in Iraq', Institute on Statelessness and Inclusion, November 2019
[3] Ibid.
[4] Ibid.
[5] European Asylum Support Office 2019, ‘EASO Country of Origin Information Report - Iraq Targeting of Individuals', 7 March.
[6] UNHCR, 2022, 'Iraq Statelessness Study: Statelessness and Risks of Statelessness in Iraq: Faili Kurd and Bidoon Communities’, 25 October.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of Home Affairs (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. The applicant’s migration agent informed the Tribunal that there is no issue in relation to the validity of the s.107 notice. (Extracts of the Act relevant to this case are attached to this decision).
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 non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:
At question 19 of part C of the Form 866, the applicant answered ‘stateless’ to the question ‘Your citizenship at birth’’. This was considered incorrect by the delegate on the basis the applicant is an Iraqi citizen and was so at the time of his Protection visa application.
At question 42 of part C of the Form 866, the applicant provided a statement in response to the question ‘Why did you leave that country?’. The delegate considered the applicant’s statement incorrect on the basis the applicant is an Iraqi citizen and was so at the time of his Protection visa application. Further, the delegate considered the applicant’s travel to Iraq in 2014 indicated that his fears of persecution based on being stateless in Iraq are incorrect.
The applicant’s status as a Stateless Bidoon living in Iraq without citizenship
In the applicant’s Protection visa application form with accompanying written statement the applicant repeatedly presented himself and his family as not possessing Iraqi citizenship. He has now admitted this is false as in fact he and his family obtained Iraqi nationality soon after they arrived in Iraq, when the applicant was still young.
The Tribunal therefore concludes that the applicant did provide incorrect answers in his Protection visa application form.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.
Should the Protection visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Correct Information
The correct information is as follows:
a)The applicant was an Iraqi citizen at the time of visa application and was not stateless as claimed.
b)The applicant did not flee Iraq because of his status as a stateless Bidoon, nor because he was denied Iraqi citizenship and rights.
c)The applicant’s parents and siblings were not denied Iraqi citizenship or declared stateless as they were in fact Iraqi citizens.
This is substantive information which should have been correctly provided in the applicant’s Protection visa application. The applicant’s failure to provide it weighs in favour of cancelling the visa.
The content of the genuine document (if any)
This is not relevant to the present case as the NOICC relied solely on s 101 of the Act and not on s 103 of the Act, relating to bogus documents.
Whether decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant’s Protection visa was primarily granted on the basis of being a Sunni who had come to the adverse attention of Shia militias in a Shia dominated part of Iraq. It was also found that his status as a stateless Bidoon in Iraq contributed to his vulnerability to serious harm and his lack of access to protection.
The decision to grant the applicant a Protection visa was therefore partly based upon the incorrect information that the applicant lived as a stateless Bidoon in Iraq. The Tribunal considers that this factor weighs in favour of the cancellation of the applicant’s visa.
The circumstances in which the non-compliance occurred
When asked why he had included incorrect answers regarding his Iraqi citizenship in his Protection visa application the applicant referred to feeling sick and drowsy from his boat journey to Australia.
The Tribunal notes that the applicant arrived in Australia by boat [in] November 2011. His Protection visa application was later lodged in August 2012, well after his date of arrival. The Tribunal does not accept that the applicant’s condition upon arrival in Australia would have any impact upon his choice of which information to include or not include in his Protection visa application, nine months later.
The Tribunal acknowledges that the applicant’s Protection visa application was largely based upon the information he provided in his initial ‘Request for Protection Obligations Determination’ form. He completed this form with the assistance of an interpreter and a government appointed registered migration agent. He lodged this form with the department on 16 January 2012. This date is still two months subsequent to the applicant’s arrival in Australia. The Tribunal therefore does not accept that the boat journey which made him sick had any impact upon the information he provided in this first stage of the process of the applicant applying for protection in Australia.
The applicant has also referred to feeling sacred and confused and surrounded by others in detention who talked about what would and would not be the basis for a successful Protection visa application in Australia. The Tribunal considers these factors would have some influence upon the applicant’s decision to not answer correctly with regard to his Iraqi nationality, in his Protection visa application.
Beyond this the applicant stated he did not know why he did not clearly indicate his Iraqi nationality in the application.
Based on the above, the circumstances in which the non-compliance occurred are that the applicant was in detention, scared, confused, and exposed to potential misinformation about what he should include in his Protection visa application. However he also had the assistance of an interpreter and a qualified migration agent in his Protection visa application process.
The circumstances that may explain the applicant’s non-compliance are partial at best and do not excuse his actions. However being detained in a detention centre would be a highly daunting experience and potentially not an ideal environment in which to make best interest decisions. The Tribunal therefore give this factor just a little weight in the applicant’s favour.
The present circumstances of the visa holder
The applicant is presently married with [young] children, under the age of five. His wife and children each have some health issues while the applicant himself is in good health. The applicant is not currently working as he does not have permission to work since his visa was cancelled. He has one sister and one brother in Australia and they both have families here. His mother is deceased and his father and [specified siblings] live in Iraq. Several of his siblings live in other countries.
The applicant has well established himself in Australia and has a young family here. He has substantive family connections amongst his and his wife’s relatives.
The Tribunal acknowledges it would be highly disruptive to the applicant, his family, and his Australian relatives if his visa is cancelled and he cannot remain in Australia.
The Tribunal gives this factor weight against the cancellation of the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant was quite equivocal in acknowledging whether or not he had complied with his section 101(b) obligations, up until the time of his most recent Tribunal hearing.
In the applicant’s response to the NOICC dated 05 February 2017, he indicated that there was “no conflict” as he had provided the Department with his Kuwaiti Birth Certificate and evidence of Iraqi citizenship. He continued to maintain he had not provided incorrect information because he had submitted his Iraqi nationality card with his Protection visa application. When it was pointed out that he had described himself and his family as not having Iraqi nationality in other information he provided in his Protection visa application he still did not clearly acknowledge this. It was not until his hearing on 8 August 2023 that the applicant conceded that he had provided incorrect answers in the visa application.
The Tribunal however acknowledges that the applicant immediately agreed he had Iraqi citizenship in his response to the NOICC, thereby providing the correct information at that time to the department. He did not try to conceal or deny his Iraqi citizenship from that time onwards.
The obligations under Subdivision C of Division 3 of Part 2 of the Act include the obligation to notify the Department that an answer in a visa application is incorrect “as soon as practicable”.[7] The applicant’s response to the NOICC was submitted in February 2017 so a significant amount of time passed before the applicant provided the correct information. The Tribunal considers that the applicant did not comply with the obligation to do so as soon as practicable.
[7] Section 105 Migration Act
The Tribunal therefore gives this factor weight in favour of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal is not aware of any other instances of non-compliance by the applicant. The Tribunal therefore considers this factor weighs against the cancellation of the visa.
The time that has elapsed since the non-compliance
Eleven years have elapsed since the non-compliance took place. The Tribunal considers this a reasonably long time in which the applicant has established himself in Australia and altered his life significantly.
The Tribunal therefore considers this factor weighs against the cancellation of the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal is not aware of any breaches of the law by the applicant. The Tribunal therefore considers this factor weighs against the cancellation of the visa.
Any contribution made by the holder to the community
The applicant is currently unemployed as he does not have permission to work. He was previously a carer for three years and stated that he has also done some work [in specified jobs].
He has not provided any other evidence of making a contribution to the community.
Given the contributions by the applicant have been quite minimal the Tribunal views this factor neutrally.
Other factors
While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be consequential cancellations under s140.
There are no potential consequential cancellations under s140 in this matter. The Tribunal therefore views this factor neutrally.
If there are children whose interests would be affected by cancellation, the best interests of those children as a primary consideration when deciding whether to cancel the visa.
Article 3(1) of the United Nations Convention on the Rights of the Child (CROC) states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
In identifying the best interest of the child, the question is what decision (i.e., to cancel or not) would be in the best interests of the child, not what the children might do if their parent were forced to cease living in Australia.[8]
[8] Wan v MIMA (2001) 107 FCR 133 at [26] – [27]. See also Promsopa v MICMSA [2020] FCA 1480 at [54] - [60], [67] and [79] – [80.
The applicant has [young] Australian citizen children aged [ages]. He has given evidence that it would be unsafe for his children to travel to and live in Iraq if the applicant is forced to return there. The applicant’s wife also stated that their children cannot travel to Iraq because it is unsafe and would be highly detrimental to their quality of life. She emphasised their medical needs and the lack of adequate medical care available in Iraq.
The Tribunal notes that each of the children have serious ailments for which they require medical treatment and sometimes hospitalisation.
Both the applicant and his wife gave evidence, which the Tribunal accepts, that the applicant shares a substantial amount of parental obligations and care for the children.
The applicant’s children attended the Tribunal hearing with the applicant and his wife on 8 August 2023. It was quite apparent that the children are extremely attached to their father and he to them. He readily looked after, nursed and comforted them while their mother gave evidence.
If the applicant’s visa is cancelled he will either have to depart Australia or risk being detained indefinitely. Either outcome would mean that the applicant’s children will be separated from their father. Such an outcome would be highly contrary to the best interests of the child and inconsistent with article 9 of the CROC, which states that:
States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
The Tribunal considers that it is strongly in the children’s best interests for the applicant to remain in Australia in a secure situation, to continue parenting them and to maintain the parent-child relationship. The Tribunal considers the children’s interests would potentially suffer significant damage if they are deprived of the stable care and presence of their father in Australia.
The Tribunal notes further that the children’s needs to have their father present with them in Australia are significantly heightened by their health issues and the requirement that he is present to help ensure their necessary, and occasionally urgent, medical care.
The Tribunal considers that the best interests of the children are primary considerations that weigh heavily against the cancellation of the visa.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
Non-refoulment obligations
The applicant’s claims for protection were based at the time of his visa application upon being a stateless Bidoon in Iraq and a Sunni Muslim from the southern Iraq.
The applicant has confirmed that he was not stateless in Iraq but had Iraqi nationality there. He stated that despite not being stateless he and his family experienced some discrimination from others in Iraqi society because they are identifiable as Bidoon. The applicant did not describe any instances of serious harm he or his family were subject to in Iraq, as Bidoon people, since obtaining citizenship there. There is a lack of available evidence that the applicant would be subjected to serious or significant harm in Iraq simply for being of Bidoon background.
The applicant maintained his claim during his Tribunal hearing, albeit not forcefully, that he was targeted for harm when he was in Iraq as originally claimed in his visa application, and that he cannot return there now for this reason. His original claim was that he and his family are Sunni and were involved in a local Sunni mosque, which resulted in the applicant being targeted by Shia militants. The Tribunal has some doubt that the applicant is Sunni. He was married in a Shia ceremony by a Shia Sheikh and he would not identify the mosque he sometimes attends in Sydney. He also was evasive in answering whether or not his first marriage was conducted in a Shia ceremony. When it was put to him that he may be Shia he maintained that he is a Sunni Muslim.

If the applicant is Shia and not Sunni then his claims to fear harm from Shias in southern Iraq as a Sunni are not credible. Even if the applicant is Sunni as claimed the Tribunal is not satisfied that there is a real chance he will be subject to serious or significant harm in Iraq for this reason. As put to the applicant since his departure in 2011 his father and [specified siblings] have continued to live in southern Iraq without any indication of being harmed or threatened by Shia militia. The applicant himself twice returned to southern Iraq since coming to Australia without experiencing any harm, threat or targeting from Shia militia there. He gave evidence that his siblings in other countries also continue to return to Iraq from time to time with no indication they have experienced harm, threat or targeting from Shia militia.
When this was put to the applicant he initially stated that his family avoid harm by not mixing with anyone. He contradicted this evidence by stating that his siblings need to go out to do things and they can do so safely because they are known in the area. The Tribunal therefore does not accept that there is any threat to the applicant’s family in Iraq from Shia militias because the applicant’s family are Sunni.
The applicant stated that he was able to avoid harm on his two returns to Iraq by staying at home and not going out. This was contradicted by the applicant’s own evidence that he personally obtained records and documents from the official registry in Nasiriya during his returns. He also married and had a wedding celebration attend by both his family and his then wife’s relatives. In such circumstances the Tribunal does not accept that the applicant avoided harm while in Iraq by not going out and/or keeping a low profile during the times he was there. The Tribunal is not satisfied there is any threat to the applicant in Iraq from Shia militias or anyone else.
The applicant further claimed in hearing that there were recent protests and violence in the south of Iraq which made it unsafe for him to return there. The applicant initially suggested that the protests had a sectarian motivation however subsequently confirmed that they were economic protests directed against the Iraq government. The applicant has not given any evidence or indication he is politically active or has been involved in protest activity, or that he would be involved in protest activity in Iraq. The information presented by the applicant does not give rise to a real chance that he would personally face serious or significant harm in Iraq because of protests that may occur in southern Iraq.
The applicant’s claim that there is insecurity and criminal violence in southern Iraq, at least from time to time, is supported by available evidence. However the threat or harm to the applicant arising from the general insecurity is not for a reason outlined in the refugee definition. It is also a threat that is faced by the population generally in Iraq and not one directed at the applicant personally. The Tribunal is therefore not satisfied there is a real chance or risk of the applicant suffering persecution or significant harm in Iraq because of general insecurity in Iraq.
Based upon the above the Tribunal is not satisfied the applicant has a well-founded fear of persecution in Iraq or that there is a real risk he will be subject to significant harm there. The Tribunal therefore considers that Australia’s non-refoulement obligations will not be breached by the applicant’s return to Iraq.
Family unity obligations
The applicant has a family in Australia and the visa cancelation will likely result in him being separated from his wife and children. This will be a clear breach of family unity obligations. Therefore the Tribunal considers this factor weighs against the visa cancellation.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
The applicant was previously found to be a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Migration Act.
Sub-section 197C(3) of the Migration Act provides that s.198 of the Act does not require or authorise an officer of the Commonwealth to remove an unlawful non-citizen to a country if a “protection finding” has been made in relation to that person and country unless that decision has been set aside, or the Minister is satisfied that the non-citizen is no longer a person in respect of whom any protection finding would be made, or the non-citizen requests voluntary removal.
A protection finding was made in relation to the applicant as a result of his initial Protection visa application. This finding has not been set aside and nor has the Minister made a subsequent determination. Therefore the applicant would not be able to be removed to Iraq under s.198 of the Act.
Further, if the applicant’s visa is cancelled he would be unable, under s.46A(1) of the Act, to make a valid application for another visa, unless the Minister permits him to in the public interest under s.46A(2).
There are options within the Act for the Minister to use his or her powers to intervene to either grant the applicant a visa or permit him to make a valid visa application. However unless these options are exercised the applicant remains liable to detention.
The applicant has stated that he cannot return to Iraq as he will not leave his family and because it is not safe there. The Tribunal notes that according to available country information the situation in Iraq continues to be one of widespread insecurity, poverty and hardship. Therefore there is a real possibility the applicant will choose not to voluntarily return there even if his visa is cancelled. This would give rise to a situation where he may be indefinitely detained in Australia, at least for some length of time.
The Tribunal therefore accepts there is a real possibility that if the applicant’s visa is cancelled he will be subject to indefinite and/or prolonged detention in Australia. The Tribunal considers that this will have a significant adverse effect upon the applicant’s health, both mentally and physically.
In the Tribunal’s view this factor weighs substantially against the cancellation of the applicant’s visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The cancellation of the applicant’s visa will likely result in the separation of the applicant from his wife and young children. The Tribunal considers this will cause serious emotional hardship to the applicant, his wife and their children. The Tribunal also considers it will cause financial hardship to the applicant’s wife as she will not be able to rely upon the applicant to care for their children and help financially support the family.
The Tribunal further notes the above country information which describes the widespread insecurity and deprivation in Iraq. The applicant would be returning to a country of high unemployment which is experiencing a lack of food security, and scarce or interrupted potable water and electricity supply. The information also highlights that insurgent and criminal groups continue to operate in Iraq with DA’ESH/ISIS attempting to regroup and launch attacks in the central parts of Iraq.
The Tribunal therefore considers that the general insecurity, unemployment and poverty existing in Iraq presents substantial hardship to the applicant upon return.
The Tribunal therefore considers this factor weighs against the cancellation of the visa.
CONCLUSION
In weighing up the discretionary factors the Tribunal observes that the applicant’s non-compliance was of a highly serious nature. The incorrect information he provided went to substantial aspects of his protection claims.
However the factors that weigh against the cancellation go to the well-being of his wife and children and to the well-being and safety of the applicant. The level of damage and hardship they could each be exposed to, particularly the applicant and his children, is potentially severe.

100. The Tribunal therefore considers that, despite the high level of seriousness of the applicant’s non-compliance, the factors against cancelling the applicant’s visa prevail over the reasons why the applicant’s visa should be cancelled. The Tribunal considers that the applicant’s visa should not be cancelled.
101. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
102. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Melissa McAdam
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.