2302555 (Refugee) - [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

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).
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.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The 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.
The applicant was represented in relation to the review.
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
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.
On 10 March 2012 the applicant was found not to be owed protection in Australia by the delegate, who accepted his claim to be stateless from Iraq but did not accept his claim of being a hairdresser. The applicant was referred for an Independent Protection Assessment (IPA) who, on 27 August 2012 found that he met the criterion for a Protection visa. The IPA assessor also accepted the applicant was a stateless Kuwaiti born Bidoon. The decision record indicates that the IPA delegate considered that he might have obtained citizenship in the mid 90s during the Makremiyeh but accepted in his case, he and his family did not do so, and accepted the claimant arrived in Iraq in the early 1990s and had lived in that country between then and his departure for Australia in 2011 without Iraqi citizenship rights. The IPA decision referred to his ethnicity and nationality as a stateless Bidoon in Iraq among the key grounds relied upon to establish his status as a refugee, and/or his membership of a particular social group, that being “barbers in Iraq” and found that the persecution he fears as a barber of Iraq, is exacerbated because of his ethnicity as a Bidoon in Iraq who is also stateless.
Following this, on 11 October 2012, the visa holder lodged an application for a Protection visa. In his application he provided details of his name and date of birth in Q 1 and names and place and dates of birth of his family members in Q 11. At Q 12 he referred to his ID document a copy of which was with the Department. At Part C of the application the applicant indicated he was stateless at birth (Q19), provided no answer to Q 20 regarding his current citizenship. He attached a copy of his Statutory Declaration dated 16 January 2012 in response to Q 41-49 relating to his protection claims.
The applicant was granted a Protection visa on 22 October 2012.
Information received by the Department subsequently
On 12 May 2014, the Department received the visa holder’s original Iraqi National Identity (ID) card (Document Number: [number]), in response to a request by the Department’ Identity Integrity Section on 4 April 2014. His original Iraqi National ID card was assessed by the Department’s Identity Integrity Section on 18 June 2014 as exhibiting the characteristics of a genuine document and was dispatched by return post to him on 30 June 2014.
On 24 May 2016, the applicant lodged a valid application for Australian Citizenship by Conferral, declaring that he does not hold, and has never held, citizenship of any country and that he had never had any national identity documents or numbers.
In the process of considering that application the applicant was requested on 3 May 2019 to provide documentary evidence of his identity issued to him in Iraq/Iran/Kuwait, further information as to his life story and a completed Personal particular for assessment including character assessment’ (Form 80). In response, on 31 May 2019 he presented his original Iraqi National ID card (Document Number [deleted]) and an English translation, a completed Form 80 and a Statutory Declaration dated 28 May 2019, stating:
‘My real date of birth is [dae], I was born in Kuwait and stateless in Kuwait. In 1991 my
family and I went to Iraq to live. We were stateless in Iraq as well. After the fall of Saddam
Hussein Regime, the government of Iraq decided to give the stateless people living in Iraq
at that time National Identification Cards therefore I was given the ID Card. I am providing
to the Department with No. [number]. On that card the date of birth is stated as [date]
and the place of birth as [Town 1]/Iraq. These cards were given without the accuracy of our
real Data information and with mistakes’ (sic).
Investigations into the visa holder’s National ID card initiated for the purpose of satisfying the citizenship delegate of the applicant’s identity, resulted in the Department’s Amman Integrity Unit concluding that the applicant is an Iraqi citizen.[1]
[1] [deleted], provided to the Tribunal subject to a s438 Certificate
The applicant was invited to comment on the adverse information obtained by the Department indicating he was an Iraqi citizen and relating to discrepancies in the information about his family composition, but he did not respond.
On 31 May 2022 the applicant’s citizenship application was refused as the citizenship delegate was not satisfied as to his identity and that he was of good character.
Particulars of non compliance alleged in the NOICC
On 27 October 2022 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC).
The NOICC alleges the following information provided by the applicant in his Form 866 Application for Protection (Class XA) visa is incorrect and therefore he has not complied with s101(b) of the Act:
·Q 11 Of Part B – relating to his family composition where he declared 4 siblings. Information before the Department indicates he has more than 14 siblings.
·Q 4 of Part C – relating to his names he has been known by- [name] (name on false passport) . It is alleged the answer is incorrect because the passport would not have been false by reason of his Iraqi citizenship.
·Q 23 of Part C – where he stated he was born stateless. This was alleged to be incorrect because he was an Iraqi citizen at the time he answered the question and the correct answer should have been ‘not applicable’.
·Q 32 and 34 of Part C – where he stated that he was stateless in Iraq from at least November 1994 until [date] September 2011. This is alleged to be incorrect on the basis that he has been an Iraqi citizen since at least 2006, when his Iraqi National ID card was issued and therefore he was not stateless in Iraq.
·Q 42-49 of Part C – relating to his protection claims – These answers are alleged to be incorrect on the basis that he has been an Iraqi citizen since at least 2006, when his Iraqi National ID card was issued and therefore he was not stateless in Iraq and would not have been persecuted on the basis of being stateless.
Applicant’s response to NOICC
The applicant provided a Statutory Declaration dated 4 November 2022 in response to the NOICC declaring that he is a stateless person born in Kuwait in [year]. He presented his Iraqi Civil ID card as part of his application for a protection visa and has always maintained he is stateless. The ID card was given to him to facilitate his passage through the military and police check points. The card was issued in 2006 as a replacement to a damaged ID card obtained on his behalf by his father in 1991. He reiterates that he was never issued Iraqi citizenship, never held an Iraqi citizenship certificate and has no legal status in that country. His family members continue to be stateless to this time. They were never included in the Makramayah given by Saddam Hussein to some of the Bidoon because they did not have tribal affiliation as required. He used the [surname] although it is not registered in his Kuwaiti birth certificate to assimilate to the environment in the south. He completely disagrees with the Department’s allegation that he is an Iraqi citizen.
Also submitted was a submission by the applicant’s representative addressing the allegation in the NOICC. The submission refers to the AAT decision in the matter of Alshoka and Minister [2022] AATA 2829 where the Tribunal found at [81] that, despite the fact that the applicant had held two Iraqi ID cards (see at [77]), he was not an Iraqi citizen (at [81]). He refers to country information cited in that decision record, including from Landinfo, “Iraq: Travel Documents and other Identity Documents” dated 23 January 2014 at Parts 7 (National civil ID card), 9 (Forgeries of ID cards) and 10 (Iraqi nationality certificates) ; and UK Home Office, Country information and guidance, “Iraq: Internal relocation and technical obstacles” dated 24 December 2014 at section 2.4. The submission also refers to the incorrect assertion that the applicant provided incorrect information to reach an immigration outcome, noting that statelessness alone is insufficient to grant protection.
On 24 February 2023 the delegate, having considered the applicant’s response to the NOICC, determined the applicant was not stateless as claimed and provided incorrect information and did not comply with s101(b). The delegate considered the matters in 2.41 of the Regulations and decided to cancel the visa.
Evidence before the Tribunal
On 7 September 2023 the Tribunal invited the applicant to provide any further information and submissions addressing the cancellation decision.
On 19 September 2023 the Tribunal received a submission from the applicant’s representative and various untranslated documents, purportedly from Kuwait.
Tribunal hearing 12 December 2023
A summary of the evidence obtained at hearing follows. The applicant lives at an address in [suburb] with his wife and her two children aged [age] and [age] years. He has been living there for the last 9 months since marriage. Prior to that he lived at an address in [another suburb] with a friend for whom he was a carer. He lived with this person for over 10 years and cared for him. He stopped doing that when his visa was cancelled and his payments stopped. He married [his wife] about 9 months ago. They met around one year ago through a ‘program’. He later clarified this was on the internet. He married because he was not young anymore and wanted a family. She [was] divorced. She has two children from a previous marriage, their father sees the children every week. The applicant also plays a father figure in their lives, they call him “baba”, he drives them to school sometimes.
The applicant said he has not been married previously, though he was engaged once in Iraq before he came here, but the engagement was broken. He has no other family in Australia. Overseas he has a mother and a brother in Iraq and two sisters in Kuwait. They have always been in Kuwait, they were already married when his parents and brothers went to Iraq from Kuwait in the early 1990’s. When prompted the applicant indicated he had another brother also in Iraq. His father passed away around 5 years ago, from [a condition] and old age. The applicant said he is in regular contact with his mother and two brothers in Iraq. His mother is not well, she also has [medical conditions]. They live in [District 1] area. The Tribunal asked the applicant if he has other siblings or half siblings. He said he does not, only these four he has mentioned. The Tribunal put to him information before the Tribunal indicates his records in Iraq indicate he has 14 siblings. The applicant stated emphatically this is not correct, he has only 4 siblings. If he had more he would have mentioned them when he arrived.
The Tribunal asked the applicant about his situation in Kuwait. He said he was born in Al Farwaniyah Kuwait and lived in that area from birth until the events of 1992 when the family was deported to Iraq. His father worked in [a workplace], his mother was also from Kuwait and they married in Kuwait. The Tribunal asked what status they had in Kuwait. He said they were Bidoons, with no rights. The Tribunal asked how then was he able to get educated, and obtain birth certificates and marriage certificates as he has provided. He said he attended private school. Regarding the birth certificate he stated that all persons born in Kuwait are issued a birth certificate as an identity document. They had no right to citizenship. The Tribunal noted that information before it indicated that Bidoons in Kuwait were not issued any documents including birth or marriage certificates and could not access education. He said that was later that they were denied documents. But then as in now, Bidoons are denied citizenship and rights in Kuwait. The Tribunal asked why his family was deported to Iraq. He said it was because of the war, and his father was also stopped from working. His sisters remained because they were already married by then. They had no family in Iraq. First they went to [Town 1] on the border and later moved to [City 1] where they stayed.
As soon as they arrived in Iraq, they were issued an ID card, he cannot recall how long it was valid to but he knows that he renewed it once, in 2006. This is the last card he had and the one he presented to the Department as soon as he arrived. The Tribunal asked if he had any other documents. He said he did not. It asked if he had a ration card (public distribution card) – he said he did not. That was only for citizens, and he was not a citizen. He did not have a residence card or a nationality card.
The Tribunal asked if he had the original of the Civil Status ID card when he arrived. He said he did not, later after he was granted a visa the Department asked him to provide the original document and his family members sent it. The Department checked this and told him it was genuine and returned it to him.
The Tribunal asked if he had a passport, he said no. It asked what document he travelled to Australia on. He said it was a passport in his name, but he paid for it and it was not genuine. The Tribunal asked how he knows it was false. He said he paid USD $2000 and they provided it to him. The applicant confirmed his father died in Iraq. It asked him to provide a death certificate.
The Tribunal asked what status his mother and brothers have in Iraq now, noting that the laws and procedures had changed since he came here. It asked if any of them have applied for and obtained the new National ID card which has replaced the old CSID and Nationality cards. He said he does not know. Their situation is not good.
The Tribunal put to the applicant and his representative that the country information it has considered from a range of sources all indicate that of the Bidoons sent from Kuwait to Iraq in the 1990’s, around half were given citizenship and issued CSID cards and other documents and the rest received no documents. There is no information it has seen to indicate a category of people who received CSID cards but not citizenship and asked him to comment. The representative said the situation is complicated in Iraq, and there are many explanations for this situation, including that many CSID cards are not genuine or could be obtained. In the applicant’s case, his Kuwaiti documents indicate that his father married in Kuwait, and he was born there in [year]. Kuwaitis who were registered there and who were not in Iraq in 1957 and who had no ties to specific tribal groups in Iraq could not meet the fundamental conditions for the grant of makremiyah. The applicant is in this category – he was not eligible for citizenship under the makremiyah and did not obtain it. The representative also made the point that his protection assessment was not made on the basis of his stateless status but because of his occupation and what happened to him in Iraq and pointed to the decision of the IPA reviewer. Finally, the representative pointed the Tribunal to relevant pages in the FOI release of the applicant’s file which suggests the Department may have mixed his case with another person unrelated to him and this is where the discrepancy about family composition may have come from.

The Tribunal asked the applicant why he has not returned to Iraq to date. He said he cannot because of what happened to him there. He even did not go when his father died. He still has a fear of return to Iraq. The situation is not stable there.
The Tribunal explained that it will consider all of this in deciding whether it is satisfied the ground for cancellation is made out. If not, the visa is not cancelled. If it concludes the ground is made out, it must consider whether to cancel and, in that context, it must take into account certain matters. It asked him what impact the cancellation will have on his wife and new family. He said she is [of a specified ethnicity]and has children and family all here. She cannot come to Iraq and nor can her children. He did not marry her to stay here, but because he wanted a family. There are no health concerns or issue for any of them. He has no adverse immigration or criminal history in Australia. He had no further information to provide about contributions to Australia.
The representative requested time to 16 January 2024 to provide further submissions and information which the Tribunal agreed to.
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.
In deciding whether the ground for cancellation is made out, it is appropriate to bear in mind the nature of the allegations and the gravity of the consequences.[5] In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his Protection visa application are, undeniably, serious and the Tribunal takes this into consideration in its evaluation of the information before it.
[5] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 and Sun v Minister for Immigration and Border Protection [2016] FCAFC 52. Eg. The Court in Sullivan observed at [120] ‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’
The applicant denies that he provided incorrect information in his protection visa application. He has consistently maintained to the Department and Tribunal that he was born in Kuwait and was deported to Iraq in the early 1990s; he was issued with an Iraqi ID card soon after arrival and renewed this card once, and this is the Civil Status ID card he disclosed to the Department at his entry interview following his arrival, in his request for a protection obligations determination in January 2012 and his protection visa application subsequently lodged in October 2012. He has consistently maintained throughout those processes that he is not an Iraqi citizen, he is a stateless Bidoon from Kuwait, despite being the holder of an Iraqi Civil Status ID card. His evidence was that this card did not entitle him to Iraqi citizenship, he does not and never held any other Iraqi documents, and he did not have rights such as to buy property or access public school or healthcare and he was exempted from the military because of his Kuwaiti Bidoon origins. He maintains that he provided correct information in his protection application, including the reasons he feared return to Iraq at that time relating to his membership of a particular social group, as a barber.
Having considered all of the information and evidence before it, the Tribunal is not satisfied there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. The Tribunal is not satisfied, to the requisite evidentiary standard, that the applicant provided incorrect information in his protection visa application by claiming to be stateless because there is insufficient evidence before it to find that he is an Iraqi citizen. There is also insufficient evidence before the Tribunal to find that he has 14 siblings and therefore it is not satisfied his response to the family composition question is incorrect. The reasons for these conclusions follow.
Is the applicant the holder of an Iraqi ID card and is this evidence of Iraqi citizenship?
The investigations by the Department on which the allegation that the applicant is an Iraqi citizen is based is contained in an email in Department file [deleted][6] recording a verification check of the applicant’s Identity card conducted by the Department’s Amman Integrity Unit with Iraqi Authorities.
[6] [file number deleted], provided to the Tribunal subject to a s438 Certificate.
The email records the following: the ID is genuine and registered with the Civil Status Directorate (the Tribunal accepts this is the body responsible for issuing Iraqi ID cards in Iraq[7]); it is the last ID card number issued for the applicant (the Tribunal notes the card was issued in 2006); and the information in the card matches the official records with the authorities except it is noted the place of birth on the register record is Kuwait, whereas the card states he was born in Basrah. However, it is also noted that this is the norm in Iraq if someone is born outside Iraq they will register their place of birth as Iraq on Iraqi documents. The email also records that the Iraqi authorities have details of the applicant’s father, his name, date and place of birth and that he is deceased; and that Iraqi records indicate the applicant has more than 14 siblings. Based on this information, the Department’s Amman Integrity Unit concluded the applicant is an Iraqi citizen and not a stateless Bedoon (sic).
[7] Iraq: Travel documents and other identity documents, Landinfo 23 January 2014 Programutviklingsavtalen (refworld.org), p
Apart from this single email correspondence, there is no other evidence or information relating to the applicant’s Iraqi citizenship status contained in Departmental documents provided to the Tribunal. No other enquiries or documents were requested from the Iraqi authorities or provided by them or the Department’s Amman Integrity Unit. For example, there is no copy of the family register referred to, no copy of a nationality certificate or copy, or number, of any passport issued to the applicant.
It is not contested by the applicant that he is the holder of an Iraqi Civil Status card. In fact, it was he who provided this to the Department soon after his arrival, at the Entry Interview and again in the process of his application for protection. He has never claimed it to be false. The Department assessed the original document in June 2014 and found it to be genuine. It was verified with Iraqi Authorities in January 2020 who also indicated it was genuine and registered with the relevant authority.
On the evidence, the Tribunal accepts that the applicant is the holder of an Iraqi Civil Status ID card issued in 2006.
Applicant’s Kuwaiti origins
The applicant also claimed from the outset of his arrival that he is Kuwaiti born. He provided the Department upon his arrival and at the time of application for protection, documents in support of his Kuwaiti origins including a Kuwaiti birth certificate, employment card, marriage contract and academic transcripts. Information provided by the Iraqi authorities indicates he is registered as born in Kuwait in his Iraqi record.
On the evidence of the applicant’s documents and the information provided by Iraqi authorities in the verification, the Tribunal finds the applicant was born in Kuwait. It accepts that he came to Iraq in the early 1990s as claimed and was issued the Iraqi Civil Status ID card after his arrival.
Having found that the applicant is of Kuwaiti origin and came to Iraq in the 1990s, and is the holder of an Iraqi ID card, the Tribunal has considered whether he is an Iraqi citizen.
Throughout his dealings with the Department and Tribunal, the applicant has been consistent in stating that he is not, and has never been, an Iraqi citizen. Although he provided his Iraqi Civil Status card, he maintains he never held any other document, including a nationality certificate or genuine Iraqi passport and, not having these documents, he was not and is not, an Iraqi citizen.
There is no evidence before the Tribunal, physical or otherwise, of an Iraqi nationality certificate or Iraqi passport issued to the applicant.
The applicant has not travelled back to Iraq, or anywhere outside Australia since his arrival in 2011. This is confirmed by his oral evidence and departmental movement records. He claimed on arrival to have used a false passport which was destroyed and there is no evidence of an Iraqi passport before the Department or Tribunal to examine or verify. Nor is there any evidence that he has used his Iraqi ID card to obtain a visa from the Iraqi authorities since his arrival in Australia.
The death certificate the applicant provided for his father following the hearing records his father’s Nationality as Non State. It also provides the Register No. Page No. and Civil Status ID No. indicating that his father was registered in the Nationality and Civil Statue Department records. The Tribunal observes all of the information provided in the death certificate relating to the father’s name, date and place of birth and register number would have been included on his father’s Civil Status ID card. It is consistent with the information provided by Iraqi authorities in the verification of the applicant’s own Iraqi ID card, that details of his father‘s name, place and date of birth and fact that he was deceased are included on the register.
Citizenship status of Bidoons in Iraq and documentation requirements.
According to information provided by DFAT and UNHCR, approximately 47,000 Bidoon were granted citizenship by the Ba’ath regime through an assistance package called the makremiayah. In order to be granted citizenship, Bidoon had to declare that Kuwait was not their place of birth and often needed the sponsorship of a local tribe.[8] UNHCR advised that those Bidoons who became citizens under this arrangement possess Iraqi ID cards and nationality certificates whereas those who do not hold Iraqi citizenship do not hold ID cards, nationality certificates or PDS cards.[9] Other country information before the Tribunal refers to persons in possession of an Iraqi ID card being an Iraqi citizen[10] and that stateless Bidoons are unable to obtain Iraqi ID cards.[11]
[8] DFAT Country Report on Iraq 9 October 2018, p22; UNHCR 2010, Response to research request by the Refugee Review Tribunal on 9 September 2010.
[9] United Nations High Commission for Refugees (UNHCR), 2010, Email ‘Bidoon in Iraq’, 8 September <Attachment>
[10] 'RRT Country Information Request IRQ40871 - Iraqi ID Cards', Department of Foreign Affairs and Trade (DFAT), 12 September 2012, CX294968 ; Iraq: Civil Status System Law (1974)', Republic of Iraq, 24 August 1974, p.5, 20190325163740
[11] 'Homeless At Home: Iraq's Displaced Persons Cause Ethnic Tensions', Kamal, A, Niqash, 27 July 2011, 20190322154628 , RRT Country Information Request - IRQ37183 - The Bidoon', Department of Foreign Affairs and Trade (DFAT), 13 September 2010, CX249082
On the one hand, the above information suggests the applicant’s possession of an Iraqi ID card places him in the category of Bidoons who were granted citizenship under the makremiayah process. The Tribunal has been unable to locate any independent information indicating there was a category of Bidoons who were given ID cards but were not eligible for citizenship through the makremiayah process.
On the other hand, other information before the Tribunal indicates that possession of an Iraqi Civil Status card may be unreliable and/or is not, of itself, evidence of Iraqi nationality or citizenship.
Information from various sources, including DFAT, refer to the prevalence of fraudulent ID cards and documentation in Iraq,[12] some suggesting up to half of the ID cards in use may be false.[13] In the Tribunal’s view this diminishes the reliability of the ID card, even if verified, as the sole basis to conclude the applicant’s Iraqi citizenship, notwithstanding that the applicant’s card was found to be genuine upon assessment by the Department and verified by Iraqi Authorities. DFAT, in its 2023 report, indicates genuine documents obtained through fraudulent means (by paying bribes to officials) are also common.[14] The fact that the card inaccurately records his date and place of birth further points to the unreliability of this document.
[12] Immigration and Refugee Board of Canada 2016, IRQ105418.E - Availability of fraudulent identification documents, 18 February Landinfo Country of Origin Information Centre 2015, Iraq: Travel documents and other identity documents, 16
[13] Ibid
[14] Department of Foreign Affairs and Trade (DFAT), Country Information Report Iraq, 16 January 2023, p44.
The Tribunal has considered the following information about the significance of documents in Iraq and documentation requirements. A 2021 Report on Iraqi Citizenship refers to the civil status identity card as one of four documents issued to Iraqi nationals in Iraq: the other three being the residence card, citizenship certificate (or nationality certificate, and a Public Distribution System/PDS (food ration) card.[15] The applicant maintains he did not, and never held any of these other documents. This report states that the Bidoons are among several marginalised populations who were deprived of these documents, or faced difficulties in accessing them, and therefore to access governmental services and exercise basic rights, such as the right to vote, access healthcare, employment, education and housing.[16]
[15] Report on Citizenship Law: Iraq RSCAS/GLOBALCIT-CR 2021/12 May 2021 Microsoft Word - Iraq_Yassen_online_version.docx (eui.eu)
[16] Ibid.
Various sources refer to the nationality certificate as the document that confirms the holder is an Iraqi citizen.[17] The Home Office report indicates 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.’ Other sources also indicate a civil ID card is required to obtain a nationality certificate, but a person does not need a nationality certificate to obtain a civil ID card.[18] This information indicates that possession of a nationality certificate implies that a person would also have had an Iraqi ID card, but the reverse does not necessarily follow.
[17] UK Home Office, Country Policy and Information Note Iraq: Internal relocation, civil documentation and returns, October 2023, at paragraph 3.7.7, citing Upper Tribunal in AAH (Iraqi Kurds - internal relocation) (CG) [2018] UKUT 212 (IAC) (26 June 2018) 95, and at para 6.9.2, a July 2021 published by Simeat Bhatha
[18] Landinfo Country of Origin Information Centre 2015, Iraq: Travel documents and other identity documents, 16 December, 7.4 p16 , 10.3 p23
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.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Meena Sripathy
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

December, p.22 <

Details

AGLC: 2302555 (Refugee) [2024] AATA 1774
Case: [2024] AATA 1774
Decision Date: 22 February 2024

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.