2217005 (Refugee) - [2024] AATA 4468

2217005 (Refugee) [2024] AATA 4468 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Pathmanathan Rama
CASE NUMBER:  2217005
COUNTRY OF REFERENCE:                   Stateless
MEMBER:James Silva
DATE:9 October 2024
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 09 October 2024 at 5:19pm
CATCHWORDS
REFUGEE – cancellation – Protection visa – stateless – incorrect information in application – voluntary return trips to Iraq – stateless Bidoon – Sunni Muslim faith – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 107, 109
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The review applicant[1] is a [age] year old man who claims to have been born in Kuwait, and to be stateless. He arrived in Australia on [date] July 2011, by boat and without permission or documentation.
[1] The Tribunal refers to the review applicant, or former visa holder, as ‘the applicant’ for ease of reference.
The applicant applied for a Protection visa (Class XA, subclass 866) on 30 January 2012, and was granted the visa on 1 February 2012.
On 16 October 2022, a delegate of the Minister for Home Affairs decided 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 provided incorrect information in his application form for the visa, in non-compliance with s.101(1)(b). The incorrect information was that the applicant had indicated that he was stateless and that he feared persecution or significant harm in Iraq at the hands of the Mahdi Army. The delegate considered the correct information to be that he was an Iraqi citizen and that he did not fear the Mahdi Army. After considering the applicant’s response to the Notice of Intention to Consider Cancellation (NOICC) and other relevant factors, the delegate decided to cancel the visa.
This is an application for review of that decision. The issues are: (a) whether the grounds for cancellation are made out; and (b) if so, whether the visa should be cancelled. The applicant’s representative in this matter was legal practitioner Mr Pathmanathan Rama of Westside Legal, who attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CLAIMS AND EVIDENCE
Background to the cancellation
The applicant entered Australia on [date] July 2011, by boat and without permission. On 8 December 2011, he was assessed as being a person in respect of whom Australia had protection obligations under the Refugees Convention.
On 30 January 2012, the applicant applied for a protection visa. On 1 February 2012, the protection visa was granted, on the basis of information that the applicant had provided in a statement dated 9 October 2011 and in the protection visa application form. This information related to: (a) his statelessness, as a Bidoon born in Kuwait; and (b) his fear of being harmed or killed by the Mahdi Army in Iraq, his country of former habitual residence.
Protection visa cancellation in 2018: On 28 June 2017, the Department sent an NOICC to the applicant, setting out particulars of non-compliance with s.101(b), arising from incorrect information that he provided in his protection visa application Form 866C and the statement of claims, about his claimed statelessness and his fears arising from that status. The letter set out evidence suggesting that he was not stateless, but rather an Iraqi citizen. The NOICC also invited the applicant to comment – in the context of a possible reassessment of Australia’s non-refoulement obligations – on his voluntary return trips to Iraq, which appeared inconsistent with his claimed fears of harm or being killed by the Mahdi Army. The applicant provided some explanations and supporting documents relating to his travel to Iraq.
The Department cancelled the visa on 11 January 2018, having found non-compliance with s.101(b), in the form of incorrect answers about the applicant’s statelessness and his fear of harm from the Mahdi Army. On 4 September 2018, the High Court made an order setting aside the cancellation decision of 11 January 2018 (on the basis that, in considering whether to cancel the visa, the cancellation delegate had not properly assessed Australia’s non-refoulement obligations.
Current protection visa cancellation: On 3 September 2020, the Department sent an NOICC which identified incorrect answers to questions 20, 21, 22, 43, 44 and 46 of Form 866C, the last three of which referred to the applicant’s statement of claims. The incorrect information again related to the applicant’s (claimed) statelessness and his fear of harm from the Mahdi Army due to both his statelessness and his adverse profile with them. Further details, and the evidence which the delegate relied on, are set out below.
The applicant responded with a statutory declaration dated 27 September 2020, copies of several documents submitted previously, and several letters of support. On 26 October 2022, the Department cancelled the visa. This is a review of that decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
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.
Did the notice comply with the requirements in s 107?
In the present case, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107. and that the notice under s.107 complied with the statutory requirements, including the particulars of the possible non-compliance. (See details on this immediately below.)
Was there non-compliance as described in the s 107 notice?
The issues before the Tribunal are: (a) whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and (b) 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), when the applicant gave possible incorrect answers relating to: (a) his statelessness/Iraqi citizenship; and (b) the fears of harm that formed the basis for his protection visa application.
Particulars of non-compliance set out in the NOICC
Statelessness / Iraqi citizenship
The NOICC identified the following as potential incorrect answers:
§ ‘Your current citizenship’ – ‘N/A’ (Form 866C, question 20)
§ ‘Do you hold the citizenship or are you a national of any other country’ – ‘No’ (question 21)
§ ‘Do you have the right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence’ – ‘No’ (question 22)
§ Note: The statement of 9 October 2011 repeats some of this information, when the applicant wrote: ‘I not a citizen or national of any country. I am a stateless Bidoon. I was born in Kuwait around [year]. I lived in Kuwait, with my family, until July 1993, when my family was removed from Kuwait and entered Iraq’. The statement also described the consequences for the applicant of his status as a ‘Bidoon and Sunni Muslim’, by implication, as a stateless Bidoon. However, the NOICC did not refer to that expressly as a potential incorrect answer.
The NOICC set out the evidence of non-compliance in the following terms:
Partner visa application:
§ The applicant submitted a Form 40SP ‘Sponsorship for a partner to migrate to Australia’ signed by the applicant and dated 22 November 2013, in connection with a partner visa application for his wife and seven children. The Form 40SP gave the applicant’s place of birth as Thi-Qar, Iraq; and stated that he holds Iraqi citizenship acquired at birth on [date]. It stated that he did not receive assistance in completing the form.
Information provided during previous visa cancellation process
§ The NOICC stated that, in response to the earlier s.107 notice, the applicant provided evidence that he holds a Civil Status ID card. It also stated that his Iraq marriage certificate included details of a register and page number for the applicant. The delegate noted country information that these cards and the inclusion of a person in an Iraq family register are available only to Iraqi citizens.
The cancellation delegate considered that the first two answers were incorrect because information before the Department indicated that the applicant was a citizen of Iraq. In relation to the third question, the delegate added that, as a citizen of Iraq, the applicant would be entitled to all the benefits of citizenship including the right to enter and reside in Iraq.
Fear of Mahdi Army in Iraq; and lack of protection from the Iraqi authorities
The NOICC identified the following as potential incorrect answers:
§ The applicant’s statement that he feared the Mahdi Army would kill him because of his adverse profile, and because he is a stateless Bidoon of the Sunni Muslim faith (Form 866C, questions 43 and 44, in which the applicant referred to his statement of claims).
§ The applicant’s statement that the Iraqi authorities cannot and will not protect him if he goes back to Iraq, due to their close links with the Mahdi Army
The NOICC referred to the following as evidence of non-compliance:
§ The applicant’s return visits to Iraq to Iraq on two occasions, for a total of five months, as follows:
-   Grant of protection visa on 1 February 2012;
-   Grant of titre de voyage on 7 June 2012;
-   Departure from Australia on [date] January 2013, and return on [date] April 2013 (declaring that he had spent most of the time abroad in Iraq);
-   Grant of further titre de voyage on 5 December 2014;
-   Second departure from Australia on [date] February 2015, and return on [date] April 2015 (declaring that he had spent most of the time abroad in Iraq).
§ The cancellation delegate opined that the applicant’s return travel ‘appears to contradict your claim you could not return to Iraq as you feared you would be killed by the Mahdi Army’. The delegate also noted that the applicant entered Iraq on travel documents in his own name (Basra Airport), interacted with Iraqi officials, and spent time in a hospital where the Mahdi Army could have been alerted to his presence. He suffered no harm or impediment during these return visits. The delegate found this to be indicative that he was ‘not a person of adverse interest to the Mahdi Army’.
§ By way of context, the delegate noted reports of many Iraqis who are granted protection visas returning to Iraq shortly thereafter.
DFAT is aware of considerable evidence that Iraqis who are granted protection return to Iraq, sometimes only months after securing residency in Australia, to reunite with families, establish and manage businesses or take up or resume employment. The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. DFAT has limited evidence to suggest that voluntary returnees face difficulties in assimilating back into their communities.[2]
[2] Department of Foreign Affairs and Trade (DFAT): DFAT Country Information Report Iraq, 9 October 2018, at 5.16
Was there non-compliance as described in the NOICC?
In considering whether there was non-compliance, the Tribunal is mindful that in visa cancellation (and similar) cases where the exercise of a statutory power relies on the existence of facts, the onus of establishing those facts rests on the Minister (or the Tribunal, on reviews).[3] The Tribunal has taken into account the applicant’s response to the current NOICC, information he provided in response to the first visa cancellation (as set out in the delegate’s decision record in the present case, which he submitted to the Tribunal), and his oral and written evidence to the Tribunal.
[3] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA [1994] FCA 1534 at [14].
In his response to the NOICC, the applicant contended that all the information he provided in the protection visa application (Form 866C and the statement of claims) was correct, and there was no non-compliance as described in the s.107 notice. The Tribunal examines the supporting material in detail below.
Overall, the Tribunal shares many of the cancellation delegates’ concerns about the applicant’s conduct and his credibility. His responses during this review came across as somewhat simplistic and rehearsed, and he gave the impression that he was half-hearted in addressing the material that caused the cancellation delegate to believe he had given incorrect information. In the Tribunal’s view, this may reflect some expectation on his part – perhaps based on anecdotal evidence from within the Iraqi community – that the visa cancellation ultimately would not stand. In sum, the Tribunal considers that the applicant has done himself few favours during this review, and that the representative’s efforts to address these issues have been limited.
Statelessness or Iraqi citizenship
General country information
Bidoons are Sunni Muslims from Kuwait who were left stateless when Kuwait became independent in 1961.[4] The word ‘bidoon’ (‘without’ in Arabic) is used as shorthand to describe the statelessness.) As mostly nomadic people, the Bidoons were usually unable to meet the Kuwaiti government’s nationality registration requirements. Following Iraq’s invasion of Kuwait in 1990, many Bidoons had their loyalty to Kuwait questioned, and about half of the 250,000-strong population fled or were deported to Iraq. Many were later denied re-entry into Kuwait.
[4] 'Country Position Paper: Statelessness in Iraq', European Network on Statelessness, Institute on Statelessness and Inclusion, November 2019, p.12, 20191217131632; 'International Protection Considerations with Regard to People Fleeing the Republic of Iraq', United Nations High Commissioner for Refugees (UNHCR), 3 May 2019, p.79 n.47
The Iraqi government offered a pathway to citizenship for Bidoons stranded there, called the makremiayah assistance package. It was for those who were prepared to deny that they were born in Kuwait, often with the additional requirement of sponsorship by a local tribal group. Reports indicate that some 47,000 Bidoons took up Iraqi citizenship under this program, prior to 2003.[5] Since then, more modest numbers of Bidoons have been able to obtain citizenship, often through court processes.
[5] 'DFAT Country Information Report Iraq', Department of Foreign Affairs and Trade (DFAT), 9 October 2018, Section 3.83, p.22
Stateless Bidoons do not hold Iraqi ID cards, nationality certificates or Public Distribution System cards that are necessary for basic functions such as enrolling in public schools, registering marriages, and gaining accesses to some public services.[6]
The applicant’s circumstances
[6] 'DFAT Country Information Report: Iraq', Department of Foreign Affairs and Trade, 16 January 2023, Section 3.136, p.33
As noted above, it was the applicant’s marriage certificate (which included reference to a civil status ID card number) and the information he provided on Form 40SP that raised concerns that he is an Iraqi citizen, and not stateless.
The applicant’s response to the current NOICC consisted of a statutory declaration dated 27 September 2020, and an accompanying submission dated 29 September 2020. In relation to his claimed statelessness, he restated that he is a stateless Bidoon who moved to Iraq at the age of [age]. He wrote that the information given in Form 40SP, namely that he was an Iraqi citizen born in Thi-Qar, as an ‘unintentional and innocent mistake’. A friend had helped him fill out the form and, noting that the applicant’s wife was an Iraqi citizen, simply assumed that the applicant also was. For the part, the statement and accompanying legal submission focused on other matters, such as the security situation in Iraq and whether the visa should be cancelled (with reference to issues such as the ‘proportionality’ of doing so in this case).
At hearing, the Tribunal noted the applicant’s claim on the protection visa application form that he and other stateless Bidoons in Iraq had difficulties, in part because of their accents. It wondered whether the friend who had helped him complete the Form 40SP would have detected such an accent (such as to realise that he is not an Iraqi citizen). The applicant replied vaguely that evidently he had not.
The Tribunal noted country information that large number of Bidoons had obtained Iraqi citizenship through the makremiayah process, and asked the applicant about his awareness and possible participation. He said that was around [age] years old when the family crossed into Iraq, and his father had taken care of the arrangements for them all. To his knowledge, the reason why the family had not applied for Iraqi citizenship was largely due to the lack of sponsorship from a local tribe.
Documentation
The decision to cancel the visa (like the 2018 cancellation decision) rested in part on country information indicating that civil status ID cards are available only to Iraqi citizens, and that they are issued only after citizen presents certain documents relating to their Iraqi nationality.
A November 2013 report from the Immigration and Refugee Board of Canada[7] referred to in the decision notes that this is ‘perhaps the most important official document in Iraq’ and that it is ‘treated like a birth certificate’. It quotes other sources as stating that this document is essential for persons seeking essential public services, such as food assistance, healthcare, employment, education and housing. The report goes on to note comments from UNHCR and other groups that internally displaced persons (and by implication, others who are not Iraqi citizens) who lack this document have limited scope to access basic services, have restricted freedom of movement, and are at risk of arbitrary arrest.
[7] Canada: Immigration and Refugee Board of Canada, Iraq: Civil Status Identification Card, including purpose and validity; requirements and procedures for the issuance, renewal and replacement of cards, including the location of issue; frequency of fraudulent identity cards (2011-November 2013), 25 November 2013, available at:
Other sources confirm that only Iraqi citizens are eligible for the grant of this certificate[8], and that stateless persons (including Bidoons) are ‘generally unable to obtain ID cards’, including nationality certificates or Public Distribution Cards.[9] The consequences, such as inability to register marriages, are extensive.
[8] DFAT Country Information Report Iraq', Department of Foreign Affairs and Trade (DFAT), 9 October 2018, Section 5.33, p.32
[9] 'International Protection Considerations with Regard to People Fleeing the Republic of Iraq', United Nations High Commissioner for Refugees (UNHCR), 3 May 2019, p.79 n.473

The applicant disputes the accuracy of this, contending that even though he was not eligible for an Iraqi nationality certificate, his father had obtained for him a civil status ID card that permitted him (and family members) to move around the country. At hearing, he noted that there was an additional mark on his civil status ID card (the interpreter approximated this to an ‘M’) which indicates that the card holder is not an Iraqi citizen (but which, by implication, gives them limited rights while remaining in the country). The Tribunal has not found evidence, and the applicant did not substantiate his claim, that there is such a practice of issuing civil status ID cards, with such markers, to non-citizens (such as stateless residents).
The applicant provided a range of documents from Iraq, some with only annotations (rather than full translations). In addition to his comments about his identity card, which he described as a kind of stopgap measure to allow movement within Iraq (rather than evidence of citizenship). He also pointed to his school and similar documents from Kuwait (as evidence of his origins) and to his military exemption card, which he said the Iraqi authorities issued to him as a Kuwaiti. More recently, he submitted copies of his Kuwaiti ‘age assessment form for those who do not hold citizenship or passport’ completed in August 1982, and his parents’ marriage certificate of February 1980, issued in Kuwait, in which both are described as ‘Not Kuwait’. These materials support the applicant’s claim that he was born in Kuwait and is not a Kuwaiti citizen. They do not go directly to the question of whether or not he later acquired Iraqi citizenship.
The Department file includes copies of the passports and ID cards ID of the applicant’s wife and children. Iraq’s nationality law states, in Article 3, that anyone born to an Iraqi father or an Iraqi mother shall be considered an Iraqi.[10] It follows that the citizenship of the applicant’s children, and their possession of Iraqi passports and identity cards, does not necessarily shed light on the father’s citizenship or statelessness. Of interest, however, is that the children’s personal ID cards indicate their father’s place of birth as ‘Kuwait’ or, in some instances, leave it blank. For example, the citizenship certificate of [name], born in Nasiriya in [year], identifies the applicant as her father and gives his place of birth as Kuwait. This suggests that he did not participate in the makremiayah program and gain Iraqi citizenship by (among other things) denying Kuwait as his birthplace. It does not, however, indicate one way or another as to whether he explored other options to gain Iraqi citizenship.
[10] Iraqi Nationality Law:
Meanwhile, the applicant submitted some limited documents from his father in Iraq and a younger brother who migrated to [Country 1]. When the Tribunal whether they may be able to assist with more documentation or supporting details – for instance, relating to the family’s circumstances in Iraq, and/or the brother’s migration status in Iraq (such as whether he had sought protection on similar grounds), the applicant appeared uninterested.
The Tribunal discussed with the applicant a range of more recent country information which is potentially applicable to his circumstances in February 2012. Essentially, this conveys a more detailed, nuanced picture of the situation for stateless Bidoons in Iraq, and their documentation, compared to earlier understandings that Bidoons were either (a) stateless and undocumented; or (b) naturalised under the makremiayah scheme. This evidence has potential relevance for aspects of this case.
First, a recent UNHCR survey[11] of Bidoon families in four governates, including Thi-Qar, revealed that an overwhelming number of households identified as Iraqi nationals, and only a small portion of these did not have an Iraqi nationality document. Just over three-quarters of those who were married, widowed, divorced and/or remarried held marriage certificates. At the same time, a sizeable minority reported obstacles in obtaining documentation, such as complex and/or costly administrative and legal processes, and some who had previously held old or damaged Iraqi national certificates were unable to get them renewed. The Tribunal recognises that this report was prepared more than ten years after the applicant’s departure from Iraq, and, as the UNHCR acknowledged, it reflects in part the Iraqi government’s ongoing efforts to reduce statelessness in that country. Nonetheless, it suggests that the situation for Bidoons from Kuwait – in terms of statelessness and documentation – is more complex and dynamic on the ground than some reports would suggest.
[11] See Reliefweb: ‘Iraqi Statelessness Study: Statelessness and Risks of Statelessness in Iraq: Faili Kurd and Bidoon Communitiees (September 2022), 26 Oct 2022:
Second, country information indicates that stateless and undocumented Bidoons in Iraq (as well as other groups) have addressed their problems by, among other things, obtaining fraudulent documents and engaging in other corrupt practices. A stark example is the availability of fraudulent ID cards. For instance, a Landinfo report from December 2015 states that ‘it is well known that fake ID cards are available on the open market at a very low price’.[12] In the Tribunal’s view, this calls for the close scrutiny of documents from Iraq and – critically in the context of determining whether there are grounds for cancelation – caution in reaching adverse conclusions based on documents that have been presented.
[12] Landinfo Country of Origin Information Centre 2015, Iraq: Travel documents and other identity documents, 16 December, p.22.
Third, a survey of the reports concerning the Bidoons, and their issues around statelessness and documentation, also reveals that there are qualifications to and gaps in the available information, due in part to lack of accurate data[13] and a reliance on anecdotal accounts. The stark difference between the 2006 estimates of the number of undocumented Bidoons and UNHCR’s quantitative survey in 2021/2022 (referred to above) illustrates this.
[13] 'Country Position Paper: Statelessness in Iraq', European Network on Statelessness, Institute on Statelessness and Inclusion, November 2019, p.13.
The applicant has provided a consistent account of his family having moved from Kuwait to Iraq in 1993. Country information about the deportation and flight of stateless Bidoons from Kuwait to Iraq around this period, the applicant’s documentary evidence (from Kuwait and Iraq), and his modest familiarity with aspects of life in Kuwait all tend to support it.
The cancellation delegates (in the current and also the first cancellation) were understandably concerned by the applicant’s declaration on Form 40SP about his place of birth, and the marriage certificate (and reference in it to the national ID document), which appeared to undermine his claim to be a stateless, undocumented Bidoon. His return visits to Iraq (discussed below) may have reinforced these concerns. The Tribunal shares these doubts, and as noted elsewhere in this decision, considers that the applicant could have been forthcoming during this review.
Nonetheless, the applicant’s account of his family’s non-participation in the makremiayah program, the documentation he provided from Kuwait and Iraq concerning his identification as a Kuwait-born person and a consideration of country information, all give the Tribunal pause for thought as to whether he breached s 101(b).
Having regard to the evidence as a whole, the Tribunal is not satisfied to the required degree to find that the applicant failed to comply with s 101(b), by providing incorrect answers, as described in the s 107 notice.
Fears of returning to Iraq
The applicant provided the following background information about his return trips to Iraq in 2013 and 2015, noting ‘the unique and exceptional circumstances which are so compelling’.
The applicant’s departure from Australia on [date] January 2013, less than 12 months after being granted protection and his stay there for almost three months, does in the Tribunal’s view raise questions about non-compliance, i.e. whether the answers he gave in October 2011 and January 2012 were correct. Although his second return visit to Iraq took place two years later (in February 2015) and was slightly shorter than the first visit (two months rather than three), it adds to concerns about the claims he made in January 2012 about fearing harm in Iraq.
In his response to the NOICC, the applicant explained that in 2013, family members in Iraq called to advise him that his mother was unwell; that she was refusing to take medicine; and that she had been demanding to see the applicant. Doctors advised that her prospects were poor, unless the applicant appear before her in person. The applicant was distressed at this news, and not thinking straight.
§ Family and friends advised the applicant to travel through Basra, and to not stay long, due to risks from the Mahdi Army.
§ The applicant instructed family and friends not to reveal the fact of his travel.
§ He entered via Basra Airport, and went straight to the hospital where his mother was receiving treatment. Following her discharge a month later, the applicant stayed on to provide moral support, and to ensure she complied with medical instructions.
§ He provided a copy of a medical report, in Arabic with English translation. The report from [a] Hospital in Basra, dated 1 March 2013, states that the applicant’s mother entered the hospital on 10 January 2013, following a car accident. She was in a coma, and remained in ICU for 24 days. She was later found to have a fractured right hand. She remained in hospital until her discharge on 2 February 2013.
At hearing, the applicant described his return visits to Iraq as having been a mistake, impressing on the Tribunal that his mother is the most important thing in his life and he had been driven by emotions. During the exchange, he repeated information about his mother’s car accident and come in 2013. He said that he returned in 2015 because his mother had suffered a [condition], [as] well as tinnitus. His siblings had told him that she had been asking after him, and that she declined to receive medical treatment unless he was there. The Tribunal registered its scepticism, noting: (a) his mother had been in a coma prior to his first return; and (b) the [conditions] referred to in relation to his 2015 return visit did not appear to involve emergency situations. It also asked whether he had any bookings to show that he had arranged the travel at short notice, in response to medical issues. The applicant did not engage substantively with these issues.
The Tribunal accepts that compelling circumstances, such as family medical emergencies, might cause people to calculate risk differently, such as undertaking return trips to countries from which they have sought refuge. In this context, it explored whether there were other factors – in particular, the separation from his wife and children – that may have influenced the applicant’s decision to return to Iraq, despite the (claimed) risks to his safety and potential undermining of his refugee status in Australia. In response to the Tribunal’s questions, the applicant stated somewhat blandly that he did meet up with his wife and children, after he left the hospital in Basra and went to the family home in Nasiriyah. The Tribunal found his responses to be disengaged.
The Tribunal invited the applicant to comment on his conduct – returning to Iraq (both Basra and his home area Nasiriyah) for five months in 2013 and 2015 – and how this could be reconciled with his protection claims as set out in January 2012, namely that he feared the Mahdi Army would kill him, and that the Iraqi authorities will fail to protect him. The discussed scanned several relevant areas: (a) whether there had been any changes in the country information (to make travel there somewhat safer), and (b) the precautionary measures that he took during his visits to reduce the risks to his safety, measures that were feasible in the short-term but would not be viable longer-term solutions.
During the exchange, the applicant noted that he initially went to Basra and mostly stayed in the hospital with his mother (rather than stay in a hotel). Back in Nasiriyah, he avoided going out, and took measures to avoid being recognised when he did. He said that, ultimately, no one knew that he was back in Iraq. As to any changes in the security environment (between his completion of the protection visa application form, and his return visits to Iraq), the applicant said that in fact the militia presence had in fact increased over time, although he also commented that the Mahdi Army also faced more competition from rival groups (implying that, while security remained poor, the threat to him from the Mahdi Army itself – described in the protection visa application – may have eased slightly).
The Tribunal found the applicant’s evidence on these matters unsatisfactory. It is concerned that he was presenting an account – based on compelling medical reasons to visit family members, and claiming to have taken precautions (such as adopting disguises) – that reflected a formula that he believed placate decision-makers contemplating visa cancellation. It considers the timing and duration of his return visits to Iraq, his (stated) reason for travel, and his circumstances there, taken together, amount to strong evidence that he did not genuinely fear harm in Iraq in January 2012, and that the answers he gave on Form 866C were incorrect.
Nonetheless, the Tribunal accepts the need for caution in inferring from a person’s temporary return to a country of past persecution, that they provided incorrect information about their fears at a previous point in time.
The present case is a close call. However, the Tribunal considers that the better view is that the evidence relating to the applicant’s return visits to Iraq (and other relevant material) falls just short of establishing the required degree of satisfaction that he gave incorrect answers in his protection visa application dated 30 January 2012.
As such, the Tribunal is not satisfied that the applicant gave incorrect answers about his fears of the Mahdi Army, in questions 43 and 44 of Form 866C, and in his accompanying statement.
Summary
For the reasons stated above, the Tribunal is not satisfied that the applicant gave incorrect answers in the meaning of s 101(b) in relation to his statelessness (or Iraqi citizenship), or in relation to his claimed fear of harm if returned to Iraq (due to harm at the hands of the Mahdi Army and lack of protection from the Iraqi authorities), such as to reach the level required to ground the power to cancel the visa.
Therefore, the Tribunal finds that there was no non-compliance with s 101(b) by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
CONCLUSION
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 866 (Protection) visa.
James Silva
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.