2302555 (Refugee)

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.