2302555 (Refugee)

Case [2024] AATA 1774

2302555 (Refugee) [2024] AATA 1774 (22 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ali Mahmood Alkafaji

CASE NUMBER:  2302555

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Meena Sripathy

DATE:22 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 22 February 2024 at 11:48am

CATCHWORDS
REFUGEE – cancellation – Subclass 866 (Protection) visa – Stateless – and provided incorrect information – born a Bidoon in Kuwait – harmed by anti- Western insurgent or terrorist groups – membership of a particular social group – barbers in Iraq who provide Western-style haircuts and services – actual and imputed political opinion being perceived as a traitor by those who oppose the US and the West – there is insufficient evidence before it to find that he is an Iraqi citizen – not satisfied there was non-compliance by the applicant – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 101, 109

Migration Regulations 1994, r 2.41, Schedule 2

CASES

Alshoka and Minister [2022] AATA 2829

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

  2. The delegate cancelled the visa on the basis that the applicant did not comply with s101(b) of the Act and, having considered the prescribed matters under r.2.41 of the Regulations, decided to cancel the visa.  

  3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

  4. The applicant appeared before the Tribunal on 12 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

  5. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

  7. The applicant arrived in Australia on [date] November 2011 as an irregular maritime arrival and on that date provided information at a Bio-Data interview stating his name, that he was born in [year] in Kuwait and declaring that he was ‘stateless’ in response to his country of citizenship.  He provided (poor) copies of the following documents:

    ·Iraqi National ID card in the name of [name] (Document No.:[number]) in Arabic (untranslated).

    ·Kuwaiti Birth Certificate in name of ‘[first name]’.

    ·Kuwaiti Employment Card in name of ‘[middle name]’.

    ·Kuwaiti Marriage Contract between ‘[middle name]’ and ‘[name]’.

    ·Kuwaiti Academic…

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2302555 (Refugee) [2024] AATA 1774
Case
[2024] AATA 1774
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 866 (Protection) visa of an applicant who arrived in Australia in November 2011. The applicant, who stated he was born stateless in Kuwait and later deported to Iraq, claimed he feared harm upon return to Iraq from anti-Western insurgent groups due to his membership in a particular social group (barbers providing Western-style haircuts) and his perceived political opinion as a traitor. The cancellation of his visa was based on allegations of providing incorrect information regarding his citizenship and family composition.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Migration Act 1958 by providing incorrect answers in his visa application, specifically concerning his claim of being stateless and his family size. The Tribunal was required to determine if the Minister, or delegate, had established, on the evidence before them, that the applicant was an Iraqi citizen and that he had misrepresented his family composition. The Tribunal also considered the onus of proof in visa cancellation matters, noting that the Minister bears the onus of establishing the facts that ground the exercise of the cancellation power.

The Tribunal reasoned that while the applicant possessed an Iraqi Civil Status card and was recorded on an Iraqi register, this was insufficient, in the absence of a nationality certificate or genuine Iraqi passport, to satisfy the requisite standard of proof that he was an Iraqi citizen. The Tribunal accepted the applicant's consistent claims and supporting documentation, including his father's death certificate listing him as a non-citizen, and country information regarding the difficulties faced by stateless Bidoon in obtaining Iraqi documentation. Furthermore, the Tribunal was not satisfied, based on the limited evidence presented, that the applicant had provided incorrect information regarding his family composition. Consequently, the Tribunal concluded that there was insufficient evidence to establish non-compliance by the applicant as particularised in the notice issued under section 107 of the Act.

Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant arrived in Australia on [date] November 2011 as an irregular maritime arrival and on that date provided information at a Bio-Data interview stating his name, that he was born in [year] in Kuwait and declaring that he was ‘stateless’ in response to his country of citizenship. He provided (poor) copies of the following documents:·Iraqi National ID card in the name of [name] (Document No.:[number]) in Arabic (untranslated).·Kuwaiti Birth Certificate in name of ‘[first name]’.·Kuwaiti Employment Card in name of ‘[middle name]’.·Kuwaiti Marriage Contract between ‘[middle name]’ and ‘[name]’.·Kuwaiti Academic Transcripts in name ‘[name] ’. On 11 February 2012 he had an Entry interview where he stated that he and his family were deported from Kuwait to Iraq in 1992, and resided in [District 1] in Basra Governate Iraq until he fled on [date] September 2022 to commence his journey to Australia. He stated that he travelled on a bogus Iraqi passport and his “identity document” was issued to him when he came to Iraq from Kuwait. On 15 January 2012 the applicant made a request for a Protection Obligations Assessment and lodged a Statutory Declaration dated 16 January 2012, stating, inter alia, he was afraid to return to Iraq and Kuwait; he was born a Bidoon in Kuwait meaning he was stateless. He was never able to obtain citizenship in Kuwait and in 1992 the Kuwaiti authorities deported him and his family to Iraq. However, they were not welcome in Iraq either, they were still viewed as stateless and never given the opportunity to become citizens. In 1994 they were forced onto a bus and relocated to live in tents [on] the Iraq-Kuwait border. About one month later the UN intervened and they were taken back to Iraq by bus. As an undocumented person in Iraq life was extremely difficult. They did not have access to education or medical services unless able to pay extremely high bribes. When they were able to find informal employment within the private sector, they were exploited and paid much lower wages than the Iraqi citizens and their work conditions were much poorer. Finding employment was extremely difficult. He found work as a construction worker in 1998. In 2010 he opened a barber shop from his house and started cutting hair from his house. In March 2011 he received a visit from his local Muckhtar (sic) who was angry at him and concerned about his business because he was giving young men western style haircuts and facials. He was accused of drinking alcohol, which is not permitted. The applicant could not argue back because he was a Bedoon, with no rights. He described an incident on [date] August 2011 where his father was injured when a group came looking for him. His father told him not to come home. The applicant fled and went to [a city] where his brother was working and from there began making plans to flee Iraq. He fled the country on [date] September 2011. The applicant claimed that he feared return to Iraq because he will be harmed by anti- Western insurgent or terrorist groups, including the Tha'arullah for reasons of his membership of a particular social group: barbers in Iraq who provide Western-style haircuts and services and his actual and imputed political opinion being perceived as a traitor by those who oppose the US and the West.

Decision

Reasons for decision

Documentation requirements for a nationality certificate include, in addition to an ID card, a birth certificate (issued by a consul if a person was born outside Iraq).[19] The Tribunal accepts the applicant was born in Kuwait, outside Iraq and the information on the Iraqi register records this (though his ID card states otherwise). Documentation requirements for an Iraqi passport indicate that a national ID card, an Iraqi nationality certificate and certificate of residence are necessary documents to be presented.[20][19] Ibid, see also DFAT Country Report on Iraq 9 October 2018, p32[20] Landinfo Country of Origin Information Centre 2015, Iraq: Travel documents and other identity documents, 16 December, p.8 < type="1">The above information relating to documentation is consistent with the applicant’s position that, although he held an Iraqi civil status card, his Kuwaiti origins meant that he did not meet requirements to apply for and obtain a nationality certificate, Iraqi birth certificate or residence card necessary to support a claim for Iraqi citizenship. The Tribunal observes that, having presented his national ID card at the outset to the Department the issue of whether he was an Iraqi citizen on the basis of this document alone was considered by the original protection obligations delegate and IPA assessor previously, and both concluded, having regard to available country information including some of the sources referred to above, that he was not an Iraqi citizen and accepted his claim to be a stateless Bidoon from Kuwait. The applicant has consistently maintained that he does not have, and has never had, a nationality certificate or genuine Iraqi passport. No new evidence is before the Tribunal that the applicant holds, or ever held, these documents. The information contained in the verification enquiries made by the Department provide nothing other than confirmation of the genuineness of his ID card and that this is recorded on the Iraqi register. This appears to be the sole basis on which the integrity officer’s concluded that he is an Iraqi citizen. As stated above, nothing in the applicant’s conduct since the grant of his visa indicates a claim, or reliance on a claim, to Iraqi citizenship. Having evaluated all of the evidence and information before it, the Tribunal is not satisfied there is a sufficient evidentiary basis to support a finding that the applicant is an Iraqi citizen. In the absence of evidence of the existence of a nationality certificate or genuine passport, his consistent denial of ever possessing those documents, and the absence of any conduct of his part post arrival which contradicts his claims, and relevant country information relating to Iraqi nationality laws and documentation requirements, the Tribunal is not satisfied to the requisite standard of satisfaction required in the context of exercising the power to cancel a visa, that the visa applicant is an Iraqi citizen. The Tribunal accepts the applicant is born in Kuwait and came to Iraq in the 1990s. It accepts he is the holder of an Iraqi ID document which he disclosed upon arrival and in his protection visa application. It accepts that he held this document and is included in a family register in Iraq. It accepts, as a Kuwaiti born Bidoon, he belonged to a marginalised population and may have faced difficulties accessing other documents in Iraq. He maintains that he does not have and has never held a nationality certificate or passport and is not an Iraqi citizen. The death certificate issued in respect of his father in 2019 records his father as a non-citizen. The Tribunal is not satisfied possession of an Iraqi Civil Status card confirmed to be registered with the Iraqi Civil Status Directorate, is of itself sufficient basis to find that the applicant is an Iraqi citizen.Regarding the alleged incorrect information about his family composition, the applicant denies this and maintains he only has 4 siblings as consistently claimed in his applications to the Department. Apart from the derivative information in the email correspondence relating to the verification, no other information or information or the source of this information is before the Tribunal. Despite the reference to a family register record in the correspondence, no copy of this was requested by, or provided to, the Department. The Tribunal is not satisfied to the requisite standard of satisfaction required in the context of exercising the power to cancel a visa, that the visa applicant has 14 siblings as alleged. Therefore, it is not satisfied the applicant’s answers to the question in the Protection application relating to his family composition is incorrect. Having reached the conclusion that it cannot be satisfied on the evidence before it that the applicant is an Iraqi citizen the Tribunal is not satisfied his answers to the questions about his citizenship and reasons for seeking protection are incorrect on the basis that he is an Iraqi citizen.For these reasons, the Tribunal is not satisfied there was non-compliance by the applicant in the way described in the s 107 notice. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.DECISIONThe Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Meena SripathyMemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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‑complianceThe Minister is to:(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.109Cancellation of visa if information incorrect(1)The Minister, after:(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and(c) having regard to any prescribed circumstances;may cancel the visa.(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.December, p.22 <

Ratio Decidendi

Legal Principle Established

On 19 January 2024 the Tribunal received a translation and copy of the applicant’s father’s death certificate which evidences that he died on 18 May 2019 in [City 1]. The document states, under Nationality: “non state”. It also refers under the heading Information Related to Nationality & Civil Statue (sic) Department to a Register number, page number and Civil Status Identity Card Number for the deceased. No other information or submissions were provided. CONSIDERATION 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.Was there non-compliance as described in the s 107 notice? The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s101(b) on the basis of incorrect answers to questions 11 of Part B regarding his family composition; questions 4, 11, 23, 32 and 34 and 42-49 of Part C regarding his name on a false passport and claims to be stateless. In essence it is alleged he provided incorrect information that he is stateless in his protection visa application because the Department has information that he is an Iraqi citizen since at least 2006. It is alleged the information that he had a false passport is incorrect because as an Iraqi citizen he would have had a genuine passport. The allegation he provided incorrect information about his family composition is based on information that he has 14 siblings rather than 4 as declared. At the outset, in considering the issue of whether there was non-compliance in the manner set out in the NOICC, the Tribunal is mindful that is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[2] However, where the existence of facts grounds the exercise of a statutory power, as in cancellation cases, the onus of establishing those facts is on the Minister (or on review, the Tribunal).[3] Although the visa holder must be invited to show that the ground does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. at [25]:‘The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not.’ [4][2] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.[3] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].[4] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000). While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.