2302353 (Migration)

2302353 (Migration) [2024] AATA 3149 (31 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Marta Mamarot
CASE NUMBER:  2302353
MEMBER:Shahyar Roushan
DATE:31 July 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 155 (Five Year Resident Return) visa.

Statement made on 31 July 2024 at 2:32pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – subclass 155 (Five Year Resident Return) – Sunni faith – Bidoon – not satisfied as to the visa holder’s identity – discrepancies and concerns regarding his identity – applicant provided incorrect answers in relation to his citizenship status – sister provided documentary evidence to show that the applicant is an Iraqi citizen – do not accept that the applicant had provided incorrect information to the Department in relation to his surname – voluntary return to Iraq – applicant is well-settled in the community and has meaningful ties in Australia – Australian citizenship partner – decision to grant the applicant a Protection visa was not based wholly or partly on the incorrect information – decision under review set aside
LEGISLATION
Migration Act 1958, ss 46A, 101, 103, 107, 109, 189, 196, 197A, 197AB, 197C, 197D, 198
Migration Regulations 1994, r 2.41, Schedule 2
CASES
Vata v Minister for Immigration and Border Protection [2015] FCCA 1735
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
Background

The applicant is [age] years old and has been known by a number of aliases, including [Alias 1, incorporating Family Name 1], [Alias 2, incorporating Family Name 2], [Alias 3, incorporating Family Name 3] (also referred to as [Alias 3 alternative spelling]), [Alias 4], [Alias 5] and [Alias 6]. He arrived in Australia on [date] October 2010 as an Irregular Maritime Arrival (IMA).
On 7 January 2011, the applicant applied for a Refugee Status Assessment (RSA) and he was recognised as a person to whom Australia has protection obligations on 3 February 2011. Subsequently, the relevant Minister exercised his power under s 46A(2) of the Migration Act 1958 (Cth) (the Act), enabling the applicant to lodge a Protection visa application on 2 May 2011. The applicant was granted a Protection visa (Subclass 866) on 5 May 2011.
On [date] October 2011, the applicant travelled to Iraq, returning to Australia on [date] December 2011.
On 11 May 2015, the applicant lodged an Australian citizenship application by conferral. This application was found to be invalid due to the form being incomplete.
On 20 May 2015, the applicant lodged another Australian citizenship application and submitted further information and documents in relation to his name, family, citizenship and identity. This application, however, was also found to be incomplete and therefore invalid.
On 29 May 2015, the applicant lodged a further valid Australian citizenship application.
On 26 June 2015, the applicant changed his name to [Alias 6].
On 13 March 2017, the applicant was granted a Resident Return (Subclass 155) visa.
On 19 February 2021, a delegate of the Minister refused the applicant’s application for Australian citizenship.
The applicant applied to the General Division of the Tribunal for a review of the delegate’s decision to refuse his application for conferral of Australian citizenship.
[In] 2022, the General Division set aside the delegate’s decision and remitted the matter for reconsideration.
On 12 July 2022, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Resident Return visa. The applicant’s representative responded to the NOICC on 26 July 2022 and 31 August 2022.
On 14 February 2023, a delegate of the Minister decided to cancel the applicant’s Resident Return visa under s 109(1) of the Act. This is a review of that decision by the Migration and Refugee Division of the Tribunal (the Tribunal).
Evidence
Protection visa application
The applicant’s claims for protection were set out in a Statutory Declaration attached to his Protection visa application Form 866 and dated 7 January 2011. In his Statutory Declaration, he stated that his name is [Alias 2] and provided the following information.
He is a stateless Bidoon and a Sunni Muslim. He was born in Kuwait, but he left in 1992 with his parents and siblings after they were expelled and sent to Iraq by the Kuwaiti authorities during the Gulf War.
In Kuwait, their family name was [Family Name 1] but they changed their surname to [Family Name 2] when they were expelled to Iraq because [Family Name 1] identified them as Sunnis and the population in the location they were sent to in Iraq, [Location 1], was mostly Shi’a. They had no citizenship rights in Iraq despite being issued with Iraqi ID cards.[1] The family remained in [Location 1] until about 1999 when they relocated to [Country 1] due to his father being pressured to join the Ba'ath party and his brothers being asked to join the national army. Military service was compulsory in Iraq and his brothers’ age made them eligible for conscription.
[1] This is a reference to the Iraqi identity card (Bitaka shakhsiyeh) submitted to the Department by the applicant in support of his application. As recorded throughout these reasons, in the various evidence before the Tribunal, including the delegate’s decision record, the General Division’s reasons, the submissions made by and on behalf of the applicant and the country information considered, the same document is also referred to as ‘personal ID’, ‘Iraqi ID card’, ‘Iraqi identity card’, ‘National Identity Card’, ‘national civil ID card’, ‘Iraqi civil status ID card’, ‘Iraqi Civil Status Identification Card’, ‘civil status identity card’ and ‘Civil Status Identity Document’.
The applicant and his family remained in [Country 1] until 2005, when two of his brothers were discovered to be working without work permits and were deported to Iraq. His family followed them back to Iraq.
In 2007, the family received an unsigned threatening letter in a sealed envelope containing a single bullet addressed to his father and his uncle, [name deleted]. The letter threatened his father and uncle with death if they did not shave their beards, stop wearing their long white Kuwaiti garments, stop going to the Sunni mosque in the area and stop practising their Sunni faith. About a week later, the family relocated to another area in [Location 1]. They were fearful but remained faithful to their religion.
On 6 March 2009, a car the applicant was travelling in with his uncle was attacked by masked men holding handguns. They shot his uncle three times in the head, killing him. The men then took the applicant, handcuffed him, covered his eyes and drove him to an undisclosed location. He was placed in a room under a house and three days later they contacted his parents and asked for a ransom of 14 million Iraqi dinar (US$12,000). They threatened to kill the applicant and the rest of the family if the ransom was not paid. The family paid the ransom two weeks later after selling their possessions. During the time the applicant was a captive, he was treated badly by his captors, who he believed were members of a Shi’a militia.
When he returned home he continued to live in fear for his own safety and that of his family. The threats that were made against them indicated that they were specifically targeted because of their religion. As they are Bidoon, they were also constantly abused because of the way they dressed and because of their accents.
The applicant claimed to fear serious harm in Iraq by anti-Sunni militia groups due to his Sunni faith. He also claimed to fear continuing abuse and discrimination directed at him as a Bidoon. The authorities would not afford him protection and he would be unable to internally relocate as his ID card restricts his movements and his ability to travel to other parts of Iraq.
In support of his claims, the applicant submitted copies of his uncle’s death certificate, his Kuwaiti birth certificate, condolence letters, a letter from a Sunni organisation in Basra confirming that he was kidnapped and held for ransom, and an Iraqi ID card issued [in] 2007 (the 2007 ID card) in the name of [Alias 2].
The applicant’s sister
On 2 January 2016, the applicant’s sister, [Ms A] (DOB: [date]), applied for a Refugee (Subclass 200) visa. Included in her application were copies of her Iraqi passport, Iraqi Nationality certificate and Iraqi Civil Status ID card. In her application, she listed that her parents and siblings were all born in and were nationals of Iraq.
Citizenship application
Between December 2019 and February 2020, in connection with assessing the applicant’s citizenship application, the Department contacted the Amman Integrity Unit in order to verify the applicant’s identity on the basis of an updated Iraqi ID card submitted by the applicant in support of his citizenship application. This Iraqi ID card was issued to the applicant [in] 2011 (the 2011 ID card).
According to the delegate’s decision record, the Iraqi Civil Status Directorate advised officers of the Australian Embassy in Amman that the applicant’s 2011 ID card is a genuine document. The Amman Integrity Unit informed the Department on 16 February 2020:
Iraqi ID card [number [deleted] issued [in] 2011] has been verified and it appears to be genuine ... You mentioned his name as ... [Family Name 2], and his DOB as [date]. However, according to the genuine Iraqi identity card presented and the Iraqi records his full name is ... [Family Name 3] DOB [date]. ... the applicant and his family members ... all of them are Iraqi citizens and registered with the Iraqi authorities
On 26 February 2020, the Department wrote to the applicant, inviting him to comment on adverse information in relation to his Australian citizenship application, including discrepancies and concerns regarding his identity.
On 24 June 2020, the applicant responded to the Department’s letter and submitted a Statutory Declaration, dated 23 June 2020. In his Statutory Declaration, the applicant provided the following information.
He is [date] years old and was born in Kuwait. He previously provided evidence concerning his background in 2011. He continues to rely on the information provided in his Statutory Declaration dated 7 January 2011.
In 2019, he provided the Department with copies of his Form 80, Kuwaiti birth certificate, his Iraqi ID Card and Titre De Voyage. Since arriving in Australia, he has changed his name to [Alias 6].
Around December 2010, he arrived in Australia and was sent to Christmas Island. He was asked his name and date of birth at an interview, and he responded that in Kuwait, his name was [Alias 1, incorporating Family Name 1] but he did not possess any documents in that name. He informed the interviewing officer that when he arrived in Iraq with his family, his father changed the family name, and they all became known as [Family Name 2].
In 2011, he provided the Department with a copy of his Kuwaiti birth certificate, with his name listed as [Alias 4]. His family name was not recorded on the certificate. He explained that ‘[one part of his name]’ is his father’s name, ‘[another part]’ is his grandfather’s name and ‘[another part]’ is his great-grandfather’s name. He also provided a copy of his Iraqi ID card, which listed his name as [Alias 3], and his date of birth as 1 January [year]. He informed the Department that he went by the name [Alias 2] and understood his real date of birth to be [date]. His sisters and brothers also had their birthdays listed as 1 January on their respective ID cards.
He reiterated that he was born in Kuwait and has always been Bidoon. He left Kuwait with his family when he was [age] or [age] years old in 1992. His father made the necessary arrangements for the family’s identity cards when they arrived in Iraq. He was unaware of the exact details. He explained that he had always been known as a Bidoon in Iraq. He recalls school children teasing him because he is Bidoon. He continued at school until he was in [a grade], when his family relocated to [Country 1] for safety reasons. They remained for five or six years.
He stated that he did not provide any misleading or false information to the Department. Instead, he is of ‘good character and highly respectable amongst [his] family, friends and the community.’ He has never been a risk to the community, and he is a carer for a person by the name of ‘[Mr B]’, who has severe health issues.
The applicant also submitted to the Department a copy of an Iraqi ID card in the name of [Alias 2], issued [in] 2007 and an English translation of a Kuwaiti birth certificate in the name of [Alias 4].
On 14 September 2020, the Department sent the applicant a further letter, inviting him to comment on discrepancies and concerns in respect of his identity detected during the processing of his application and a summary of the factors that may be relevant to consideration of the good character requirement.
On 18 December 2020, the applicant’s representative forwarded to the Department the documents previously provided on 24 June 2020.
On 19 February 2021, a delegate of the Minister refused the applicant’s application for Australian citizenship.
On 16 March 2021, the applicant applied to the General Division for a review of the delegate’s decision refusing his application for citizenship.
On 14 July 2021, the Minister’s solicitor sent the applicant’s representative a letter, stating:
We are instructed that most contact between the Australian Embassy and Iraqi Government is by telephone with Iraqi Government officials This is the Iraqi Government’s preference.
On 14 March 2022, in written submissions, the applicant acknowledged his sister’s visa application. He stated that his sister had not provided correct information relating to his family’s birthplace in her application and noted that his brother had sent him copies of his family’s identity documents. He also provided untranslated copies of Kuwaiti-issued documents and certificates in relation to his parents and siblings.
A hearing in relation to the review of the decision to refuse the applicant Australian citizenship was held before the General Division on 15 and 16 March 2022. The applicant appeared by video and was represented by Mr [C] of counsel. Two of his brothers, [Mr D] and [Mr E], also attended as witnesses.
On 28 March 2022, [Mr C] submitted country information regarding naming protocols among Iraqi tribes, including an article titled ‘Tribal Leaders Visit Greywolf Commander at COB Adder’ dated 3 October 2011 and an extract from dividshub.net.
As noted above, [in] 2022, the General Division set aside the delegate’s decision and remitted the matter for reconsideration.
The NOICC
On 12 July 2022, the applicant was issued with a NOICC in relation to his Resident Return visa on the basis of non-compliance with s 101(b) of the Act. The NOICC stated that the applicant provided incorrect answers to questions 1, 19, 41, 42, 43 and 46 in Part C and question 9 in Part B of his Form 866. The NOICC identified the following incorrect information.
In response to these questions, the applicant had indicated that his name was [Alias 2], he was stateless, and that he was fearful of returning to Iraq due to being a Bidoon. However, he had submitted an Iraqi National Identity Card with his Protection visa application, and a separate one in support of his citizenship application issued in the name [Alias 3]. The Iraqi National Identity Card submitted with his citizenship application was verified by the Iraqi Civil Status Directorate as a genuine document and indicated that he is registered as being an Iraqi citizen. The Iraqi Civil Status Directorate had also confirmed that the applicant’s parents and siblings are all Iraqi citizens.
The response further stated that the applicant had returned to Iraq within seven months of being granted a Protection visa, staying for a period of two months ‘without any apparent issues, indicating he did not face any real risks or detrimental consequences as [he] claimed to fear, if [he] were to return.’
The applicant’s response
On 26 July 2022, the applicant’s representative submitted a detailed statement from the applicant in response to the NOICC. In his statement, the applicant provided more details in relation to the circumstances leading to his departure from Iraq in October 2010, as well as the following information.
He had travelled to Erbil, where he met his mother and his brother [Mr E]. He remained in Erbil during his stay in Iraq and did not travel to any other location. He feared returning to his hometown of [Location 1], but he felt safe travelling to Erbil in the Kurdistan region of Iraq.
His Iraqi identity card was issued [in] 2011. While he was in Erbil, he contacted his older brother, [Mr D], in [Location 1] and asked if he could get him a new Iraqi identity card. [Mr D] then arranged to obtain a card for him by paying someone to arrange the identity card. Once the identity card was ready, [Mr D] sent the card with ‘a man, like a taxi driver’ to Erbil. It is common to have couriers or taxi drivers delivering items between different cities in Iraq and Erbil. When the courier arrived in Erbil, he contacted [Mr E], who collected the card.
Since about 2013, he has been a carer for a man named [Mr B]. He cares for [Mr B] every weekday from Monday to Friday and spends about 7 or 8 hours a day with him. Sometimes he sees [Mr B] on the weekend when the latter needs him and sometimes he sleeps over at [Mr B]’s.
The applicant submitted to the Department separate statements from his brothers [Mr E] and [Mr D]. Both [Mr E] and [Mr D] corroborated the applicant’s account of his return trip to Iraq in 2011 and how he had obtained his identity card.
In his statement, [Mr E] stated that he always introduces himself with his family name as [Family Name 2]. He, his parents and most of his siblings were born in Kuwait. They are Bidoons and as Bidoons they belong to tribes which have many families and extended families. His family belongs to a tribe named [Family Name 3], which is ‘the plural name for the tribe.’ An individual member of the tribe is called [Family Name 2]. [Mr E] further stated that he does not have Iraqi citizenship and has never held Iraqi citizenship. He had an Iraqi identity card which he used when required to identify himself. He is no longer in possession of this identity card as he ‘lost it and was not able to replace it.’ He has faced a lot of discrimination and hardship in Iraq as a Bidoon and ‘it is not always safe to leave the house.’
In his statement, [Mr D] also stated that he introduces himself using the surname of [Family Name 2]. His family is also known by the name [Family Name 3], which is the name for the ‘whole family’ and their tribe. He is a Bidoon born in Kuwait and moved to Iraq in the early 1990s with his family. He is not an Iraqi citizen and has never been an Iraqi citizen. He has never held any documents stating that he is an Iraqi citizen. He ‘once’ had an identity card which he used when authorities asked him for identification, but he ‘lost the card many years ago.’
The applicant also submitted a letter from the Iraqi Embassy in Australia, dated 11 March 2021, stating that ‘[Alias 2] holder Australian travel document number […] is not Iraqi citizen and does not have Iraqi identity.’ In an unsigned statement, dated 15 December 2021, the applicant provided the following information in relation to this letter:
In or about early March 2021, I went to the Iraqi embassy in Canberra. I cannot remember the exact date. I spoke to a staff member who was a male. I cannot remember his name. I asked if I can get a letter stating that I am not an Iraqi citizen. The staff member asked me to give him my ID. I gave him my National Identity Card and my travel document. He took a copy and returned them to me. He told me that he will need to do checks and get back to me and it will take a few days I cannot remember how many days it took before the staff member called me. When the staff member called me he told me that I can pick up the letter and it was fine as they did their checks When I went to pick the letter up from the Iraqi Embassy in Canberra, I paid $20 US. I have attached a copy of the receipt to this statement. The receipt is in Arabic. The date of the receipt is 21 March 2021.

In addition, the applicant provided a copy and translation of a letter from [a named person] and a letter from [a department], dated 12 November 2010, confirming that the applicant is a member of the Sunni community in [Location 1] and that he was detained by Shi’a militias for 15 days with a ransom of 14 million Iraqi dinars being demanded in exchange for his release.
The delegate’s decision
On 14 February 2023, the Department cancelled the applicant’s Resident Return (Subclass 155) visa. The delegate found that the applicant is not a stateless Bidoon, but an Iraqi citizen and that he had provided incorrect answers to questions 1, 19, 41, 42, 43 and 46 in Part C and question 9 in Part B of his Form 866.
Application for review
On 21 February 2023, the applicant applied for a review of the delegate’s decision.
In a pre-hearing submission to the Tribunal, dated 14 March 2024, [Mr C] reiterated the procedural and chronological history of the matter and referred to previously submitted documents. He noted the ‘overlaps’ between the current matter before the Tribunal and the issues considered by the General Division in relation to the review of the decision to refuse the applicant Australian citizenship. [Mr C] further noted that after hearing evidence over two days, including cross-examination of witnesses by the Minister’s solicitor, the General Division made findings ‘favourable to the applicant concerning the overlapping matters’. A few months later, in cancelling the applicant’s visa, the delegate made different findings adverse to the applicant concerning the same matters without providing persuasive reasons for departing from the findings made by the General Division in its decision record.
[Mr C] submitted that the applicant’s position is that he did not give any ‘incorrect answers’ in his Protection visa application. Alternatively, careful consideration should be given to the circumstances in which the applicant gave the incorrect answers.
The submission relied substantially on the General Division’s reasons in its decision of [2022] in relation to the applicant’s name, finding that the applicant’s evidence in relation to his name being [Family Name 2] is not inconsistent with the evidence of Iraqi ID documents issued to him and his sister in the name ‘[Family Name 3]’. [Mr C] submitted that the delegate in her decision record did not refer to the country information in relation to the applicant’s tribal name, which was relied upon by the General Division, did not explain why she found the General Division’s analysis to be ‘wrong’ and did not consider the evidence given by the applicant’s two brothers to the General Division.
The submission also relied on the General Division’s reasons in relation to whether the applicant is a citizen of Iraq. In that decision, the Tribunal was satisfied on the balance of probabilities that the applicant is not an Iraqi citizen. It stated:
[81]…The fact that the Applicant stated he was an Iraqi citizen in early interviews with the Department should be viewed in the context of him having recently arrived in Australia following a long voyage and providing information to the authorities without the benefit of legal representation. After obtaining legal assistance about his citizenship, he clarified that he is a stateless Bidoon who holds an Iraqi ID card but is not an Iraqi citizen ... The Applicant’s brothers’ evidence that they are not Iraqi citizens or entitled to Iraqi citizenship supports the Applicant’s claim that he is not an Iraqi citizen.
[82] There is no evidence before the Tribunal that only Iraqi citizens are issued with ID cards The nationality certificate recognises or confers Iraqi citizenship. The fact that the Applicant’s sister needed to obtain a nationality certificate in 2006 is consistent with the evidence of the Applicant and his brothers that, at least in 2005, they were not Iraqi citizens The fact that the Applicant’s sister applied for and obtained a nationality certificate raises a question as to whether the Applicant and his two brothers also could have applied in 2006 or later for a similar document and, if so, obtained it. However, their evidence is that they did not apply for such a document and therefore they were not Iraqi citizens, or as far as they were aware, they were not entitled to Iraqi citizenship.
[Mr C] submitted that the Tribunal’s reasons were supported by a report from Landinfo titled ‘Iraq: Travel documents and other identity documents’ dated 23 January 2014, noting that the Iraqi government issued a ‘national civil ID card’ and a ‘nationality certificate’ and that the two documents have different functions. While the nationality certificate confers or is evidence of citizenship, a person must present a national civil ID card when applying for a nationality certificate. The national civil ID card does not confer or is not evidence of citizenship and a person does not need to present a nationality certificate when applying for a national civil ID card. It was submitted that, contrary to the delegate’s findings, the ‘applicant’s responses in two interviews within a few days after stepping off a boat to Australia should not be treated as binding admissions by him.’ In addition, while in his citizenship application lodged in 2015, the applicant had stated that he was a citizen of Iraq, in the same application he had also stated that he was ‘stateless’. [Mr C] also noted that the delegate had given no weight to the evidence of the applicant’s brothers before the General Division. Finally, [Mr C] disputed the delegate’s findings that the applicant’s claims in his Protection visa application concerning his fear of harm in Iraq was ‘an incorrect answer because he returned to Iraq within seven months of the grant of the protection visa for two months without any apparent issues, indicating he did not face any real risks or detrimental consequences as he claimed to fear if he were to return.’
With regard to the Tribunal’s discretionary power to cancel the applicant’s visa, [Mr C] submitted that, even if the Tribunal were to find that the applicant had provided an incorrect answer, the decision to grant the applicant a protection visa in May 2011 was not based wholly or partly on the family name recorded in the Protection visa application or his claim to be stateless. In addition, the applicant ‘was not aware of the non-compliance at the time he lodged his protection visa application in May 2011’ and ‘genuinely believed the information in his protection visa application [regarding his name and citizenship status] was true.’ [Mr C] also referred to the time that has elapsed since non-compliance and the present circumstances of the applicant, namely his relationship with his girlfriend and caring for a disabled son, as well as having been a carer for a person with disabilities named [Mr B] for many years.
The hearing
The applicant appeared before the Tribunal on 20 March 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages. Where relevant, the applicant’s evidence at the hearing is referred to in the Tribunal’s reasons below.
Post-hearing submissions
On 10 April 2024, the Tribunal received further submissions from [Mr C]. The submissions were accompanied by statements from the applicant’s girlfriend, [Ms E], and [Mr B].
In his submission, [Mr C] addressed the concerns raised with the applicant at the hearing. With regard to the applicant’s name, it was submitted that the applicant has consistently stated in his dealings with the Department that his family name is ‘pronounced’ ‘[Family Name 2]’. His brothers, [Mr D] and [Mr E], also state in their statements that their family name is pronounced ‘[Family Name 2]’. If the applicant, his brothers and their parents pronounced their family name ‘[Family Name 2]’ when communicating with friends, other people and government authorities in Iraq, this is their family name. [Mr C] argued that, to the extent there might be two different pronunciations of the applicant’s family name ([Family Name 2] and [Family Name 3]), ‘if both pronunciations are used by family members in their dealings with the world, then neither pronunciation is “incorrect”’. In any event, the applicant honestly believed his answer was correct and this would be relevant to the exercise of the Tribunal’s discretion as to whether to cancel the visa.
With regard to the applicant’s citizenship, [Mr C] cautioned against relying on a September 2012 RRT country information report citing the Department of Foreign Affairs and Trade (DFAT), which was referred to at the hearing, indicating that Iraqi ID cards were only issued to Iraqi citizens. It was submitted that the document does not specify the source of this information. In contrast, a Landinfo report (December 2015) and a UK Home Office report (August 2016) elaborate that the Iraqi civil status ID card and the nationality certificate serve different purposes. While the civil status ID card is issued to each Iraqi national and should be held by all citizens, neither report claims it can only be issued to Iraqi citizens. To obtain a civil status ID card, one must provide an application form and birth certificate, but not a nationality certificate, indicating that one need not be an Iraqi national to receive it. The nationality certificate, however, confirms citizenship. The applicant asserts that civil status ID cards may be held by non-Iraqi residents and that no reliable information states otherwise. The existence of a nationality certificate suggests that the civil status ID card does not confer citizenship.
[Mr C] referred to observations at the hearing that the family’s travel from Iraq to [Country 1] in 1999 suggested they were in possession of Iraqi passports. The applicant, however, was [age] years old at the time and was unaware of the specifics. It was acknowledged the family likely had some travel document, potentially issued by Iraq or Kuwait, but no conclusive country information exists on the requirements for such travel in 1999.
[Mr C] also addressed the proposition put to the applicant at the hearing that the Tribunal may place significant weight on information from the Amman Integrity Unit, which indicated that the applicant and his family were Iraqi citizens. It was submitted the applicant’s position is that he was not an Iraqi citizen in 2010, as he was neither a citizen by descent (parents were Kuwaiti), birth (born in Kuwait) or by conferral, as he had not received a nationality certificate. If he was entitled to citizenship, he was unaware of this entitlement and had not applied for a nationality certificate. If the Tribunal concludes the applicant was an Iraqi citizen in 2010, it must consider whether the applicant believed he was not a citizen when he applied for his protection visa. Evidence supports the applicant’s belief that he was stateless, and this is relevant to the Tribunal’s exercise of its discretion as to whether to cancel his visa. Further, the decision to grant the applicant a protection visa in May 2011 was likely not solely based on his claim of statelessness, impacting the visa cancellation decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
Was there non-compliance as described in the s 107 notice?
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[2] Whilst a visa holder, whose visa is being considered for cancellation, must be invited to show that the ground for cancellation does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA, the Court stated:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[3]
[2] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282–283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200; McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.
[3] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
While that case was concerned with cancellation under s 119 of the Act, the Court’s comments would be equally applicable to s 109.
In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences to a party, the Tribunal is free to consider the evidence and other materials before it.[4] In that case, Flick and Perry JJ said that:
The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[5]
[4] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120].
[5] Ibid.
The Tribunal is not bound to apply the principle in Briginshaw v Briginshaw that the strength of evidence necessary to make a finding may be greater if the consequences of that finding are serious, but it is not prohibited from applying it if it sees fit.[6] The Court noted that s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, which provided that the Tribunal is not ‘bound’ to apply rules of evidence, was not a prohibition upon the Tribunal applying those rules. It said that imposing a requirement for the Tribunal to apply the rule in Briginshaw in making its factual findings, would be an unnecessary constraint upon the freedom of the Tribunal to employ such procedures as it sees fit in undertaking its fact-finding role.[7]
[6] Ibid, at [121]. Flick and Perry JJ referred to Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362, ‘reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…’.
[7] Ibid, at [122].
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.
For the reasons outlined below, the Tribunal finds that there was non-compliance by the applicant in the way described in the s 107 notice.
Iraqi citizenship
It was put to the applicant in the NOICC that, in support of his Protection visa application, he had submitted his ‘original Iraqi National Identity Card (number [deleted] issued in 2007)’. He later submitted an updated ‘original Iraqi National Identity Card (number [deleted] issued in 2011)’ in support of his citizenship application. The latter document was referred for verification and the Iraqi Civil Status Directorate confirmed it to be a genuine document, issued by the relevant authorities with the details consistent with those recorded by the authorities. The Iraqi Civil Status Directorate confirmed that the card holder is [Alias 3], an Iraqi citizen born on [date].
In his response to the NOICC, the applicant reiterated that he is a stateless Bidoon and not an Iraqi citizen. He submitted to the Department two separate statements from his brothers [Mr E] and [Mr D], stating that they are Bidoons and as Bidoons they have never held Iraqi citizenship. They both claimed to have held Iraqi identity cards, but the cards have been ‘lost’. The applicant also submitted a letter from the Iraqi Embassy in Australia, dated 11 March 2021, stating that [Alias 2] is not an Iraqi citizen.
As noted above, in addressing the issue of the applicant’s citizenship in his pre-hearing submission, [Mr C] relied heavily on the General Division’s reasons in its decision of [2022]. With respect, I do not concur with the General Division’s reasoning in that decision.
The General Division had reasoned that the evidence before it in relation to the applicant’s citizenship is inconclusive as to whether he is an Iraqi citizen or a stateless Bidoon. It referred to the applicant’s ‘interactions’ with the Department shortly after his arrival on Christmas Island, advising that he and his family members are Iraqi citizens, and that he travelled from [Iraq] on an Iraqi passport that may have been genuine. The General Division also referred to ‘evidence of oral enquiries with officers of the Iraqi government performed by officers of the Australian Embassy in Amman’, suggesting that the applicant and his family are Iraqi citizens, as well as the applicant’s sister, [Ms A], stating in a visa application that her parents and several of the applicant’s siblings are Iraqi citizens. In addition, the Tribunal noted that the applicant’s Iraqi identity cards record his place of birth as c[District 1], Iraq, when he was in fact born in Kuwait. The General Division further noted that use of a place of birth in Iraq is consistent with the makremiayah process which took place in Iraq before 2003, allowing stateless Bidoons to obtain Iraqi citizenship if they declared that Kuwait was not their place of birth and suggesting that the applicant and his family had benefited from the makremiayah process in becoming Iraqi citizens.
The General Division weighed the above evidence against the applicant’s own claims to be a stateless Bidoon, the letter from the Iraqi Embassy in Canberra dated 11 March 2021 that the applicant ‘is not Iraqi citizen and does not have Iraqi identity’ and the applicant’s brothers’ evidence that they are not Iraqi citizens or entitled to Iraqi citizenship to find it supports the applicant’s claim that he is not an Iraqi citizen. It stated there is no evidence before it that only Iraqi citizens are issued with ID cards and ‘the fact that the applicant’s sister needed to obtain a nationality certificate in 2006 is consistent with the evidence of the applicant and his brothers that, at least in 2005, they were not Iraqi citizens.’ The General Division, nevertheless, acknowledged that ‘the fact that the applicant’s sister applied for and obtained a nationality certificate raises a question as to whether the applicant and his two brothers also could have applied in 2006 or later for a similar document and, if so, obtained it.’

In both his pre-hearing and post-hearing submissions, [Mr C] argued that there is no information to suggest that the Iraqi ID card or the civil status ID card can only be issued to or held by Iraqi citizens. He sought to rely on a distinction between the ‘national civil ID card’ (called bitaka shakhsiyeh or bitaqa hawwiya in Arabic) and a ‘nationality certificate’ (called shahadat jinsiyya in Arabic) as referred to in a report by Landinfo titled ‘Iraq: Travel documents and other identity documents’, dated 23 January 2014. He contended that the national civil ID card does not confer or is not evidence of citizenship and that there is no reliable country information which states that a civil status ID card can only be issued to or held by Iraqi citizens.
However, as acknowledged by [Mr C] in his post-hearing submission, the civil status ID card is ‘issued to each Iraqi national’;[8] ‘the Civil Status ID card…should be held by all citizens’[9] and ‘all Iraqi citizens should carry a national ID card’.[10] I am not persuaded by [Mr C]’s qualification that the sources cited do not state that the civil status ID card can only be issued to or held by Iraqi nationals or citizens and that the card may be held in some circumstances by residents of Iraq who are not Iraqi citizens. Contrary to [Mr C]’s argument, I consider the information cited to be reliable country information indicating that a civil status ID card can only be issued to or held by Iraqi citizens. Indeed, other country information supports and consolidates this view.
[8] UK Home Office, Country Information and Guidance Iraq: Internal relocation (and technical
[9] Ibid.
[10] Landinfo, ‘Iraq: Travel documents and other identity documents’, 23 January 2014.
As it was put to the applicant at the hearing, DFAT stated in September 2012 that Iraqi Civil Status Identification Cards ‘are only issued to Iraqi nationals/citizens.’[11] Other sources confirm that ‘four documents are issued to Iraqi nationals: a residence card (bitaqa sakan), citizenship certificate (or nationality certificate – shahadat al-jinsiya), civil status identity card (bitaqa shakhsiyeh or bitaqa hawwiya) and a public distribution system/PDS (food ration) card. In his post-hearing submission, [Mr C] stated that the Tribunal ‘should be cautious’ about relying on the DFAT report as the document does not record the source of information DFAT relied on. However, I consider the DFAT report to be reliable and it is not uncommon for DFAT not to refer to specific sources of the information when responding to requests.
[11] DFAT, Iraq: RRT Country Information Request IRQ40871 – Iraqi ID Cards, CIR No. 12/53, 12 September 2012, CIX294968.
Further, I do not agree with [Mr C]’s arguments based on the distinctions drawn between the civil status ID card and the nationality certificate. In essence, [Mr C] contended that a person need not present a nationality certificate in order to obtain a civil status card, but in order to obtain a nationality certificate, one provides to the issuing authority, among other things, a civil status ID card. [Mr C] concluded that ‘if the civil status ID card evidenced citizenship, there would be no need for a nationality certificate. The fact that a nationality certificate exists indicates that the civil status ID card does not confer or evidence citizenship.’ However, country information sources consulted by the Tribunal indicate that while the nationality certificate is an important document, it is not as important as the civil status ID card. As reported by the UK Home Office in an updated report, in September 2015, the government of Iraq began issuing new electronic and biometric unified national ID cards. The Iraqi Nationality Identity Document (INID), which holders are required to carry at all times, replaces the civil status ID cards, ‘which remain valid ID documents for legal and administrative purposes whilst INID rollout continues.’[12] The report stated:
3.7.7 The Upper Tribunal in AAH held that an INC ‘simply serves to confirm that the holder is an Iraqi citizen. It does not hold the practical significance of a CSID… An Iraqi in possession of a CSID can ordinarily use that document to obtain a replacement INC and in any event, the absence of an INC would not have any particular consequences for his ability to function in society. Conversely possession of an INC could assist the holder in replacing a lost CSID.’
…
6.7.2 The EASO report, citing various sources, published in November 2021 stated:…The unified national card is supposed to replace the civil status ID and make the nationality certificate and ultimately the residency card obsolete…
[12] UK Home Office, Country Policy and Information Note, Iraq: Internal relocation, civil documentation and returns, October 2023,
The Immigration and Refugee Board of Canada stated in 2013 that the Iraqi Civil Status Identification Card ‘is one of the main identity documents in Iraq, “perhaps the most important official document in Iraq” and…“treated like a birth certificate”’.[13] With reference to an IOM representative in Iraq, it was noted that the card ‘is the “basic” ID and “main card” for identification in Iraq’ and that it should be possessed by all citizens. It was further noted that the requirements and procedures for the issuance, renewal and replacement of the civil status ID card include the submission of original and copy of the nationality certificate for the applicant and the original and copy of the National Identity Card for the applicant’s father, as well as other documents.[14]
[13] 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,
[14] Ibid.
In my view, the above information refutes [Mr C]’s conclusions. If a civil status ID card can be used to obtain a replacement nationality certificate, it follows that it is regarded as evidence of citizenship.
More importantly, as I put to the applicant at the hearing, I consider the information provided by the Iraqi Civil Status Directorate to the Amman Integrity Unit in relation to his Iraqi ID card to be reliable and strong evidence of his Iraqi citizenship. The evidentiary weight of that information is not reduced by the fact that it was provided orally. In fact, there is no reason for me to doubt the reliability of that information.
In reaching the above view, I have considered the country information before me indicating that the civil status ID cards are:
6.8.1 ‘… [I]ssued in the district where a person is registered and on the basis of information in the person’s family register. Family registers (also known as family book, or family census or sijilla al-qayd or sijil al ahwal al-shakhsiyya) are kept manually and created locally in approximately 300 civil status registration offices across Iraq and information is updated with birth, death, marriages, and changes to civil status.[15]
[15] UK Home Office, Country Policy and Information Note, Iraq: Internal relocation, civil documentation and returns, October 2023, citing EASO.
According to Landinfo:
All Iraqi nationals are obliged to register with their local registration office, which is organised under the population register (the Civil Status Affairs Directorate). The Civil Status Affairs Directorate is, in turn, organised under the General Directorate for Nationality (GDN) in the Ministry of Interior.[16]
[16] Landinfo, Report Iraq: Travel documents and other identity documents, 16 December 2015,
The information obtained by the Amman Integrity Unit was sourced from the Iraqi Civil Status Affairs Directorate based on the information held by them in relation to the applicant and his family. On the basis of information in their family register held by the Iraqi Civil Status Affairs Directorate, it was confirmed that ‘the applicant and his family members…all of them are Iraqi citizens and registered with the Iraqi authorities’.
This is further evidenced by the applicant’s sister, [Ms A], not merely stating in her visa application, but also providing documentary evidence to show that she is an Iraqi citizen. As noted by the delegate in her decision record, in her Refugee (Subclass 200) visa application, the applicant’s sister declared herself, her parents and siblings (including the applicant) to be Iraqi citizens. At the hearing held before the General Division in March 2022, the applicant stated that his sister had married their maternal cousin who is an Iraqi citizen in March 2009, but that he believes her to be a stateless Bidoon, like the rest of the family. In giving evidence at the same hearing, the applicant’s brothers both stated that their sister was not an Iraqi citizen in 2006, but that her husband may have obtained documents for her following their marriage. The delegate also referred to two documents submitted by the applicant’s sister, demonstrating she acquired her Iraqi citizenship as a result of having been born to an Iraqi father or mother and not as a consequence of having married an Iraqi citizen. These documents were an Iraqi Nationality Certificate, issued [in] 2006, pursuant to Article 3(a) of Iraqi Nationality Law and a Civil Status Identification Card, issued [in] 2010.
At the hearing, the applicant confirmed that his sister is an Iraqi citizen. However, he stated that he did not know why his sister had stated in her application that her parents and her siblings are all Iraqi citizens. I did not find the applicant’s evidence in this regard to be credible. I do not accept the evidence given by the applicant’s brothers to the General Division that their sister was not an Iraqi citizen in 2006, but her husband may have obtained documents for her following their marriage to help her to travel. There is no other reliable information to support this speculation. When I discussed this issue with the applicant at the hearing, he said he did not know.
The applicant’s sister was issued an Iraqi Nationality Certificate in [2006], two years before her marriage to her cousin. Her ability to do so is consistent with the information provided by the Iraqi Civil Status Directorate to the Amman Integrity Unit that the entire family are Iraqi citizens. I consider this evidence to be highly persuasive. I find that the applicant’s sister had obtained an Iraqi Nationality Certificate and a civil status ID card as an Iraqi citizen and because she was entitled to receive these documents. I find that the entire family, including the applicant, were issued with civil status ID cards because they are Iraqi nationals and entitled to receive these documents. I do not accept the applicant’s brothers’ evidence that they had both ‘lost’ their civil status ID cards, which were never replaced. Given the country information referred to, I consider this evidence to be highly dubious, particularly in light of information suggesting that persons without a civil status ID card ‘will face significant difficulties in accessing public services, employment and housing and this is likely to result in destitution.’[17] I give little weight to the applicant’s brothers’ evidence and do not accept their testimony that they have never held Iraqi citizenship.
[17] UK Home Office, Country Policy and Information Note, Iraq: Internal relocation, civil documentation and returns, October 2023.
As noted by the General Division in its reasons, the applicant’s Iraqi identity cards record his place of birth as [District 1], Iraq, when he was in fact born in Kuwait. The use of a place of birth in Iraq is consistent with the makremiayah process, allowing stateless Bidoons to obtain Iraqi citizenship if they declared that Kuwait was not their place of birth.
DFAT stated in its 2023 DFAT Country Information Report that:
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.[18]
[18] DFAT, DFAT Country Information Report: Iraq, 16 January 2023.
In its Iraq Statelessness Study, published on 26 October 2022, the United Nations High Commissioner for Human Rights reported that:
In 1990, following Kuwait’s invasion by Iraq, […] Kuwait considered Bidoon who fled to Iraq as supporters of the Iraqi regime and affiliated with the Iraqi army, resulting in the government of Kuwait refusing the return of these Bidoons from Iraq to Kuwait. While in Iraq, Bidoon received support from the former regime as a reward for their purported loyalty to Iraq and not Kuwait. They were provided with nationality certificates and passports as “makramiya” (honoured in Arabic) but also benefited from a certain degree of flexibility in registration and the issuance of documentation. Most of the Bidoon in Iraq were naturalized because of their links to tribes in southern Iraq and upon the fact that they did not declare Kuwait as their place of birth. According to UNHCR 2014 study, it seems that most of the Bidoon who still lack nationality documentation are those who continue to declare Kuwait as their place of birth.[19]
[19] UNHCR, Iraq Statelessness Study: Statelessness and Risks of Statelessness in Iraq: Faili Kurd and Bidoon Communities (September 2022), 23 October 2022, In its 2018 Country Information Report for Iraq, DFAT noted:
Many Bidoon fled Kuwait when Iraq invaded in 1990, as the Kuwaiti army began to see them as a security threat due to their connection with Iraq. The Kuwaiti government did not grant them re-entry after the war and many remain in Iraq. The Iraqi government under the Ba’ath Party granted citizenship to approximately 47,000 Bidoon through an assistance package called ‘makremiayah’. To obtain citizenship, Bidoon had to declare that Kuwait was not their place of birth and often needed sponsorship from a local tribal group. After 2003, Bidoon were no longer able to claim citizenship through ‘makremiayah’. Bidoon who were unable or unwilling to accept ‘makremiayah’ remain stateless. Local sources estimate approximately 54,000 Bidoon remain stateless. Stateless Bidoon do not have access to many services and public sector job opportunities, nor can they register land in their own names, sign rental contracts or inherit property. The government does not usually register births and deaths of stateless Bidoons.[20]
[20] DFAT, DFAT Country Information Report: Iraq, 9 October 2018.
101. In September 2010, DFAT provided the following information in response to an RRT country information request:
During the 1990-1991 occupation of Kuwait, a proportion of Bidoon fled (or were deported) to Iraq and subsequently faced difficulties re-entering Kuwait. The number of Bidoon entering Iraq at this time is unclear, but is estimated to be no more than 100,000. Post's understanding is that when the Bidoon entered Iraq, they received support from the former Baath regime (in particular former Foreign Minister and Deputy Prime Minister Tarek Azziz).
The status of Bidoon in Iraq appears to fall into two categories. 47,417 individuals (6,955 families) are said to have been granted Iraqi nationality by the previous regime during a one-time assistance package called "Makremiayah" (meaning a generous act). This was primarily at the urging of advocacy groups such as "Rights holders - Ashab el HAQ". To obtain citizenship, Bidoon had to declare that Kuwait was not their place of birth (i.e., had to renounce association with Kuwait) and often needed sponsorship by a local tribe (especially around the city of Samawa (100 km from Nasariyah) where the Bdour and Ghizi tribes wielded influence).
There are reports that only about half of the Bidoon were granted citizenship under Makremiayah. The remainder are stateless in Iraq and number approximately 54,500 individuals or 5,430 families. These Bidoon were either unwilling to renounce their association to Kuwait, did not have sufficient affiliation to Iraqi tribes, were unaware of naturalisation procedures or entered Iraq from a third country after Makremiayah.[21]
[21] DFAT, RRT Country Information Request - IRQ37183 - The Bidoon, 10 September 2010, CX249082.
102. This information, combined with the information referred to earlier regarding the applicant’s citizenship, strongly suggests, and I find, that the applicant and his family had benefited from the makremiayah process in becoming Iraqi citizens. In reaching this view, I have considered the letter submitted by the applicant from the Iraqi Embassy, stating that ‘[Alias 2]’ is not an Iraqi citizen and does not have an Iraqi identity. As I discussed with the applicant at the hearing, despite his claim that he ‘gave’ his ‘National Identity Card’ to the Embassy official, the text of the letter only refers to his travel document. If the applicant had in fact presented his national ID card, I do not accept that that the Embassy would have neglected to mention this document in their letter. This inference is supported by the fact that the letter refers to the applicant as Mr [Family Name 2] and not by his surname of [Family Name 3] as recorded in his Iraqi ID cards and reflected in the records held and verified by the Iraqi authorities. I find that the only document presented by him to the Embassy was his travel document and that the Embassy had not viewed or examined his Iraqi ID cards. Therefore, I give the letter very little weight in supporting the applicant’s claim that he is not a national of Iraq.
103. The applicant has consistently claimed, and provided persuasive documentary evidence to support the claim, that he was born in Kuwait to stateless Bidoon parents on [date]. I accept this claim. I find that the applicant and his family were expelled from Kuwait and sent to Iraq in 1992. I find that the applicant and his family were beneficiaries of the makremiayah process, became Iraqi citizens and obtained civil status ID cards at some point following their entry into Iraq. While the information provided by the applicant in relation to his date and place of birth conflicts with the information recorded in his Iraqi ID card, I find the information recorded in his Iraqi ID card is reflective of declarations he had to make to the Iraqi authorities in order to benefit from the makremiayah process. However, I find the applicant’s claims in his Protection visa application and in the Statutory Declaration accompanying the application that he and other members of his family are stateless and do not hold Iraqi citizenship to be incorrect. I find that the applicant provided incorrect answers to question 19 in Part C and question 9 in Part B of his Form 866.
104. The country information before me, which I accept, indicates that ‘whether naturalised or stateless, Bidoon retain the title of “Bidoon” in Iraq, due to their background.’[22] I find that the applicant, despite having obtained Iraqi citizenship, had identified and was identified by others as Bidoon in Iraq. I find that the applicant had provided correct information in his Protection visa application and in the Statutory Declaration accompanying the application that he was/is Bidoon.

[22] Ibid.
The applicant’s name
105. As noted in the NOICC, in response to question 1 of his Protection visa application, the applicant stated that his name is [Alias 2]. This information was considered to be an incorrect answer because the Iraqi ID card submitted by the applicant with his Protection visa application and an updated card submitted in support of his citizenship application were issued in the name [Alias 3]. The latter document was verified by the Iraqi Civil Status Directorate as a genuine document.
106. In his response to the NOICC, the applicant did not directly address this issue. However, he submitted supporting statements by his brothers, stating the applicant’s family belongs to a tribe named [Family Name 3], which is ‘the plural name for the tribe.’ An individual member of the tribe is called [Family Name 2]. In his pre-hearing submissions, [Mr C] relied on the General Division’s reasons in relation to this matter. The General Division accepted that ‘the name [Family Name 3] is the recognised plural form of the name [Family Name 2], which is the form of the name used by individual members of the [Family Name 3] family group or tribe.’ Having considered the applicant’s evidence, including the information submitted to the General Division, I also accept this proposition. I accept that while the applicant’s family name was recorded as [Family Name 3] in his Iraqi ID cards, he and members of his family had also used and relied upon the family of name of [Family Name 2]. I agree with the General Division that the applicant had been truthful about his family name when providing this information to the Department. While this information was inconsistent with the information recorded in his ID cards, he genuinely believed his surname was [Family Name 2] and used that surname. I do not accept that the applicant had provided incorrect information to the Department in relation to his surname. Indeed, there were other inconsistencies in the applicant’s ID cards, namely in relation to his date and place of birth, which were accepted as having a reasonable explanation linked to the makremiayah process. It would not be reasonable to consider the recorded inconsistency in the applicant’s name in isolation. I find that the applicant did not provide an incorrect answer to question 1 in Part C of his Form 866.
Travel to Iraq
107. As the contents of the NOICC demonstrate, the delegate considered the applicant’s answers to questions 41, 42, 43 and 46 in his Form 866C and considered that the applicant’s voluntary return to Iraq on one occasion in 2011 without experiencing any harm or impediment indicated that he did not hold the adverse profile as claimed in his application for a Protection visa.
108. The delegate’s conclusion that the applicant had provided incorrect answers in his Form 866C in relation to his fear of persecution in Iraq appears to have been based substantially on the applicant’s return to Iraq without apparent issues and remaining in that country for the duration of his trip. I am not satisfied, however, that the applicant’s answers to questions 41, 42, 43 and 46 were in fact incorrect and that he had deliberately lied by claiming that he feared being persecuted for the reasons he had provided in his application for a Protection visa.
109. I accept that an applicant’s act of returning to the country where they claim to fear being persecuted may raise questions in relation to his or her subjective fear of harm and the credibility of their claims for protection. However, the mere fact of return is not necessarily inconsistent with the claimed fear. The individual circumstances of the case and the precise claims which were made must be carefully examined.
110. The applicant has given consistent evidence throughout the process in relation to his claims for protection. He claimed that in the Shi’a-dominated area of [Location 1] where he resided his father and uncle were threatened by Shi’a militias due to their Sunni faith. (‘It was not good to be identified as Sunni at that time because the place that we went to in Iraq was mostly Shi’a’.) Both his father and uncle had long beards which identified them as Sunnis and wore ‘long white Kuwaiti garments’. He claimed that he and his uncle were attacked by masked men and his uncle was killed and he was abducted and held for ransom by suspected Shi’a militia (‘they had threatened us for following the Sunni religion’). He was released after two weeks when the ransom was paid, but he continued to live in fear due to ongoing threats and abuse because of his Sunni faith. The applicant also claimed that as Bidoons, he and his family were abused and discriminated against. He specifically claimed that he feared being harmed ‘by anti-Sunni militia groups’ because he is a Sunni. He stated: ‘I believe if I return to Iraq I will be captured and killed or at the very least threatened by Shia militias. I will continue to be abused by other Iraqis because I am a Bidoon.’
111. The applicant’s claims as reflected in his responses to the relevant questions in his Protection visa application clearly state that he feared harm from the Shi’a militias and discrimination as a Bidoon in [Location 1] at the time he made his application. He did not explicitly claim to fear any harm arising from his claimed statelessness. He did not claim that he feared the authorities in Iraq or that he would be arrested upon returning to that country. He claimed in response to question 46 that the Iraqi authorities could not protect him from the harm he feared.
112. Based on the applicant’s evidence, including the documentary evidence submitted, I accept that he had arranged to see his family in Erbil on his trip to Iraq in 2011. Erbil is located in the autonomous Kurdistan region in the north of the country and is governed by the Kurdistan Regional Government.[23] I accept that he had remained in Erbil for the entire duration of his stay and did not travel to the south of Iraq to expose himself to any palpable risk of being harmed by Shi’a militias operating in the south of Iraq for the reason of his Sunni faith or his Bidoon origins, which linked him to the Sunni sect of Islam.
[23] See, for example, Iraqi Kurdistan Profile, BBC News, April 2018,
113. Having regard to all of the evidence before me, I do not accept that the applicant’s return to Iraq on one occasion as referred to in the NOICC provides a real persuasive basis to make a positive finding that the information the applicant provided in response to questions 41, 42, 43 and 46 in his Form 866C was incorrect. I have not reached a real state of satisfaction that non-compliance has been established on this basis.
114. For the reasons outlined above, I am satisfied that the applicant had provided incorrect information in his application for a protection visa in relation to his citizenship status. I have reached the necessary state of satisfaction that the applicant provided incorrect information in response to question 19 in Part C and question 9 in Part B of his Form 866. I find that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice. However, I find that the applicant did not provide incorrect answers to questions 1, 41, 42, 43 and 46 in his Form 866C.
Should the visa be cancelled?

As I have 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 (s 109(1)(b)), and have regard to any prescribed circumstances (s 109(1)(c)) and to any other matters required to be considered as a matter of government policy. The prescribed circumstances are set out in reg 2.41 of the MigrationRegulations 1994 (Cth) and are as follows.
The correct information

117. Subdivision C places an onus on non-citizens to provide accurate information and to correct inaccurate information in relation to visa applications, because it intended, among other things, to prevent non-citizens from benefiting from the failure to disclose or provide accurate and truthful information in a visa application.[24] Specifically, there was an obligation on the applicant to fill in his visa application form in such a way that all questions were answered and no incorrect answers were given. While I have found that the applicant did not comply with this obligation and provided incorrect information in relation to his citizenship status, I am not satisfied that the applicant benefited from providing this incorrect information.
[24] Explanatory Memorandum to the Migration Reform Bill 1992 (Cth) at [32].
118. I consider the correct information is that the applicant is an Iraqi citizen and not stateless. However, it does not follow that the applicant is not Bidoon, that he was not identified as Bidoon in Iraq or that the information he provided in relation to his past experiences and future fears in respect of his protection claims as reflected in his Protection visa application was incorrect. I give this consideration moderate weight in favour of cancelling the visa.
The content of the genuine document (if any)
119. The s 107 notice did not refer to any bogus documents and the cancellation was not considered in connection with the provision of any bogus documents. I do not give this consideration any weight either in favour of or against cancelling the applicant’s visa.
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
120. As already noted, the applicant has consistently claimed that he experienced harm in the area he resided in due to his Sunni faith. Both his father and uncle were threatened due to being known as prominent Sunnis. Their Kuwaiti attire and facial hair also identified them as Sunnis. The applicant and his uncle were attacked, the latter was killed, and the applicant was kidnapped by suspected Shi’a militias for religious reasons. Following his release, the applicant continued to live in fear due to ongoing threats and abuse because of his Sunni faith. He claimed in his Protection visa application that he feared being harmed ‘by anti-Sunni militia groups’ because he is a Sunni.
121. The applicant also claimed that he would ‘continue to be abused by other Iraqis’ because he is Bidoon. He did not claim that the discrimination he was exposed to was due to his claimed statelessness, rather it was the consequence of his identity as Bidoon. Nor did he claim anywhere in his Protection visa application and the accompanying Statutory Declaration that he feared harm arising from lack of access to services and employment available to Iraqi citizens. I have found that the applicant had provided correct information in his Protection visa application and in the Statutory Declaration accompanying the application that he was/is Bidoon. The sources I have consulted and referred to earlier confirm that ‘whether naturalised or stateless, Bidoon retain the title of “Bidoon” in Iraq, due to their background.’[25] Country information supports the view that there is a high level of prejudice at the community level and societal discrimination against ethnic and religious minorities, including Bidoon, in Iraq. DFAT has assessed that this discrimination is often due to ‘patronage’, ‘nepotism’ and ‘sectarian identity’.[26]
[25] DFAT, DFAT Country Information Report: Iraq, 29 November 2013.
[26] Ibid.
122. The delegate stated in her decision:
If the Protection visa delegate had been aware of the correct information that he had Iraqi citizenship and accordingly had the rights afforded to any Iraqi citizen this may have impacted their assessment of whether the visa holder was eligible to be granted a Protection visa.

123. In Vata v Minister for Immigration and Border Protection [2015] FCCA 1735, the Court held that reg 2.41(c) requires consideration of the likely effect of the correct information on a decision to grant a visa in the general sense, rather than the likely effect of the correct information on the decision to grant the visa which is the subject of the cancellation power.[27] I am satisfied that the applicant would have been granted the visa, even if the correct information about his nationality was known. I give this consideration significant weight against cancelling the visa.
[27] Vata v MIBP [2015] FCCA 1735. The Court held at [23] that the Tribunal erred by incorrectly asking whether or not the visa granted to the applicant would have been granted if the correct information were known.
The circumstances in which the non-compliance occurred
124. The non-compliance arose when the applicant provided incorrect information to the Department in connection with his citizenship. I consider that the applicant deliberately provided incorrect information in his Protection visa application. There is no information before me to suggest that the circumstances of the non-compliance were beyond the applicant’s control. However, I have also found that the decision to grant the applicant a Protection visa was not based wholly or partly on the claim that he was stateless and not a citizen of Iraq. I give this consideration moderate weight in favour of cancelling the visa.
The present circumstances of the visa holder
125. The applicant has been residing in Australia for nearly 14 years. I accept that since about 2013, he has been a daily carer for [Mr B]. In a Statutory Declaration, dated 9 April 2024, [Mr B] stated that he has a range of disabilities, and the applicant has cared for him on a daily basis for the past 10 years. He stated that he is dependent on the applicant and if the applicant were to be removed, he would experience hardship.
126. I also accept that the applicant has been in a relationship with [Ms E], an Australian citizen, since 2019. I accept that [Ms E] has two adult children from a previous relationship, including a [age]-year-old son, who has severe disabilities and is non-verbal. I accept that the applicant has been assisting [Ms E] in caring for her disabled son and she is reliant on him for ‘physical and emotional support’ as she has no close family members in Australia. The couple intend to get married.
127. I accept that the cancellation of the visa would adversely impact both [Mr B], [Ms E] and her son. I give this consideration significant weight in favour of not cancelling 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
128. While the applicant responded to the NOICC within the prescribed timeframe, he has maintained that he did not give incorrect information to the Department. I have found this not to be the case. I give this consideration moderate weight in favour of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
129. In his subsequent applications, namely his citizenship application and Resident Return visa application, the applicant reiterated the incorrect information provided in his Protection visa application. I give this factor some weight in favour of cancelling the visa.
The time that has elapsed since the non-compliance
130. The applicant lodged his Protection visa application 13 years ago. I accept that there has been a relatively significant passage of time, and that the applicant is well-settled in the community and has meaningful ties to it. He has formed enduring relationships and there are persons who are dependent on the applicant in receiving substantial support and care. I give this consideration significant weight in favour of not cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
131. On the basis of the evidence before me, the applicant has not breached the law since the relevant non-compliance. I give this consideration some weight in favour of the visa not being cancelled.
Any contribution made by the holder to the community
132. I consider that the applicant has made some contribution to the community by providing care for [Mr B], who suffers from a range of disabilities, for more than a decade. I give this consideration some weight in favour of the visa not being cancelled.
Other considerations
133. In addition to the prescribed circumstances discussed above, the decision maker should have regard to any lawful government policy. The Department’s guidelines[28] set out a number of matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109, including:
[28] PAM3 – Migration Act - Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B & s140) - s109 Deciding whether to cancel – Matters that should be taken into account (re-issue date 21/8/16).
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

The Department’s PAM3 policy provides that the ‘obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement’ (Visa cancellation instructions, General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)).

135. There was no evidence before me to suggest that there are any children involved requiring consideration of their best interests or family unity principles as obligations arising under the Convention of the Rights of the Child.
136. Non-refoulement obligations are generated, explicitly or implicitly, by the 1951 Convention relating to the Status of Refugees (Refugees Convention) and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).[29]
[29] See PAM3 - Migration Act - Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B & s140) - Australia’s international obligations (re-issue date 21/8/16).
137. Section 197C of the Act was modified by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 with effect from 25 May 2021. The effect of the amendments is to make clear that the Act does not authorise or require the removal of a non-citizen from Australia if that person has made a valid application for a protection visa that has been finally determined where in the course of considering the application, a ‘protection finding’ was made. Under the Act, a ‘protection finding’ is a finding, whether express or implied, made, in considering a protection visa, that someone meets the refugee or complementary protection criterion.
138. Where a person is the subject of a ‘protection finding’, they cannot be removed from Australia except in the three circumstances set out in s 197C(3)(c): the decision finding that the non-citizen engages protection obligations has been set aside; the Minister, or his or her delegate, has made a decision under s 197D(2) that the person 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 respect of the applicant on 5 May 2011 when he was found to satisfy the refugee criterion in s 36(2)(a) of the Act and was granted a Protection visa. Under the new provisions, this protection finding stands and the applicant is highly unlikely to be removed from Australia except in the very limited circumstances set out in s 197C(3)(c). The applicant did not express any desire to return to Iraq voluntarily, there was no evidence before me to suggest that the decision in which the protection finding was made has been quashed or set aside, nor was there any evidence to indicate that the Minister has made a decision under s 197D(2) that the applicant is no longer a person in respect of whom any protection finding would be made. I find that the applicant will not be subject to removal under s 198 of the Act unless and until there is a further decision under s 197D that a protection finding would no longer be made.

140. Therefore, I consider it unnecessary to re-examine any past protection claims or to assess any protection claims arising from his circumstances for the purpose of determining whether any removal from Australia would be in breach of Australia’s non-refoulement obligations. I give this consideration little weight against cancelling the visa.
Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
141. The applicant was granted a Resident Return visa on 13 March 2017. Should his visa be cancelled, he would be barred from making a valid application for a further visa, including bridging visas, under s 46(1) and s 46A(1) of the Act. Consequently, he would be liable to be detained under s 189 of the Act and would be kept in immigration detention until he is removed from Australia or granted a visa as required by s 196 of the Act. Under s 195A, the Minister may grant the applicant a visa (whether or not on application). Additionally, the Minister has discretion under s 197AB to move a non-citizen into ‘community detention’ where it is in the public interest to do so. As the Minister’s powers are non-compellable and discretionary, there is no certainty that he will be granted a visa or that he will be eligible for community detention.
142. As noted above, the applicant’s removal from Australia is rendered unlikely by the operation of the new s 197C. If the applicant cannot be removed from Australia and if he is not granted another visa, the cancellation of his visa means that there is the possibility of indefinite detention, in the sense of detention for an uncertain or indeterminate period with no fixed chronological end point. However, the possibility of indefinite or prolonged detention must also be considered in light of the High Court decision in NZYQ v MICMA [2023] HCA 37. While NZYQ upheld the validity of ss 189(1) and 196(1) in authorising detention of unlawful non-citizens, it determined that this authorisation ends when there is no real prospect of removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future.
143. There is no evidence before me to indicate that the Minister has made a decision under s 197D(2) or that a decision would be made in the reasonably foreseeable future. As it does not appear that there is a real prospect of removal of the applicant from Australia becoming practicable in the reasonably foreseeable future, he is unlikely to face indeterminate detention. I note that following NZYQ, legislative changes were enacted, including provisions for granting Bridging R visas without application, subject to specific monitoring conditions, for non-citizens affected by the ruling. Nevertheless, I am satisfied that the applicant may be detained for an unspecified, albeit not indefinite, period pending a resolution to his immigration status if his visa was cancelled. I give this consideration moderate weight in favour of not cancelling the applicant’s visa.
Whether there are persons in Australia whose visas would, or may, be cancelled under s 140
144. There are no persons in Australia whose visas would, or may, be cancelled under s 140 of the Act. I do not give this consideration any weight either in favour of or against cancelling the applicant’s visa.
If there are children in Australia whose interests could be affected by the cancellation
145. There are no children in Australia whose interests could be affected by the cancellation. I give this consideration no weight either in favour of or against cancelling the applicant’s visa.
Conclusions
146. The applicant has provided incorrect information in his application for a Protection visa, and I have decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act.
147. I have found that there are weighty considerations in favour of cancelling the applicant’s visa. These considerations include the fact that he provided incorrect information in his Protection visa application in relation to his citizenship and the citizenship of his family members in Iraq. He has continued to maintain the incorrect information that he is stateless, he has reproduced this incorrect information in subsequent applications, and it does not appear that the circumstances of the non-compliance were beyond the applicant’s control. However, I have also found that the decision to grant the applicant a Protection visa was not based wholly or partly on the incorrect information which he provided. There are a number of other factors that weigh against cancelling the visa, including the applicant’s present circumstances, the time that has elapsed since the non-compliance and his community ties and contribution, and the mandatory legal consequences of the cancellation. I find that, on balance, the cumulative effect of the considerations weighing in favour of cancellation are outweighed by the force of the considerations in favour of not cancelling the applicant’s visa.
148. Accordingly, having regard to all the relevant circumstances, I have concluded that the visa should not be cancelled.
DECISION
149. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.
Shahyar Roushan
Deputy President

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.

obstacles), 24 December 2014,

[2024] AATA 3149

31 July 2024

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