SHAHIN (Migration)

[2020] AATA 560

SHAHIN (Migration) [2020] AATA 560 (25 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fahad Muhammed Abdullah Jabar SHAHIN

CASE NUMBER:  1728048

DIBP REFERENCE(S):  BCC2015/2934969

MEMBER:Kira Raif

DATE:25 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.

Statement made on 25 February 2020 at 9:41am

CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (class XB) visa – Subclass 202 (Global Special Humanitarian) – stateless Bidoon in Iraq – letter from Iraqi consulate confirming citizenship in order to travel to Iraq to support sister undergoing surgery – further statement identifying as stateless – consular documents may be unreliable – insufficient evidence to form basis of cancellation – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 109(1)

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 Immigration to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant claims to have been born in Kuwait in February 1991. In March 2014 he was included in the application for a Global Special Humanitarian visa made by his father and the visa was granted on 10 May 2015. On 15 May 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided his response and his visa was cancelled on 31 October 2017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 7 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. 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.

6. 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.

   Country information

7. Independent information before it from the UNHCR and DFAT[1] indicates that there are two categories of Bidoons from Kuwait who came to Iraq in the early 1990’s. One group were able to obtain Iraqi citizenship under a process known as Makremiayah.  This group were issued Iraqi ID cards and were eligible for Iraqi citizenship. The other group who did not take up this offer, remained stateless and did not have ID cards, PDS cards or nationality certificates and were not able to gain Iraqi citizenship. 

   [1] United Nations High Commission for Refugees (UNHCR), 2010, Email ‘Bidoon in Iraq’, 8 September; Department of Foreign Affairs and Trade (DFAT), 2010, RRT Information Request: IRQ37183, Report No. 1197, 14 September

8. Information provided by DFAT indicates that the Bidoon (Arabic for ‘without’) are a group of often stateless persons in the Gulf region, primarily Kuwait. There is little verifiable information available on the status of the Bidoon in Iraq. During the first Gulf War, a proportion of Bidoon fled (or were deported) to Iraq and subsequently faced difficulties re-entering Kuwait without appropriate documentation. Kuwait considered those who fled to Iraq as supporters of the Iraqi regime and affiliated with the Iraqi army, and therefore not loyal to Kuwait.  The majority of Bidoons are Sunni Muslims, with a small minority being Shia, and more than 80 per cent are reported to live in the southern part of Iraq[2].   The status of Bidoon in Iraq appears to fall into two categories.  According to DFAT and the 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.[3] UNHCR has 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.[4]  Country information from a number of different sources considered by the Tribunal also indicates that a person in possession of an Iraqi ID card is an Iraqi citizen[5] and that stateless Bidoons are unable to obtain Iraqi ID cards.[6]

   [2] DFAT Country Information Report Iraq 29 November 2013, para 3.65 -3.67

   [3] DFAT Country Report on Iraq 9 October 2018,  p22; UNHCR 2010, Response to research request by the Refugee Review Tribunal on 9 September 2010.

   [4] United Nations High Commission for Refugees (UNHCR), 2010, Email ‘Bidoon in Iraq’, 8 September

   [5] '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 

   [6] '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

   Did the notice comply with the requirements in s.107? 

9. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

10. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

11. 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 s. 101 of the Act.

12. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

    a.The applicant was included in the application for the Refugee and Special Humanitarian visa made by his father on 12 March 2014. The applicant was identified in the application form 842.

    b.The applicant’s father Mr Shahin provided a statement in support of the visa application. In that statement Mr Shahin stated that his family lived in Basrah while he moved to Andalusia and Australia and he stated that they were stateless

    c.The applicant completed Form 80 in which he stated that

    i.he was born in Kuwait in February 1991

    ii.In response to Question 7, whether the applicant had citizenship from any country, the applicant stated ‘No, I am stateless’. The applicant did not provide any details.

    iii.In response to Question 8, whether the applicant holds, or has held citizenship from any other country, including dual citizenships and all previous citizenships, the applicant stated ‘no’.

    iv.In response to Question 15, whether the applicant has, or has ever had, any national identity documents or numbers’ the applicant stated ‘no’.

    d.The applicant’s mother was interviewed for the purpose of the application and stated that she did not feel safe in Iraq for herself and her children. She stated she had nothing in Iraq and Kuwait as they were Bidoon. She stated that she was afraid of being threatened or killed, that there is no future in Iraq and no proper jobs and that her husband had been threatened as a Sunni.

    e.On 10 May 2015 the family were granted the Class XB visas with the applicant as a dependent family member. He arrived in Australia on 3 July 2015.

    f.Six weeks after arriving in Australia, on 12 August 2015, the applicant was issued with the Certificate of Identity. The applicant obtained a letter of identity from the Consulate General of the Republic of Iraq on 17 August 2015 which confirms the applicant to be an Iraqi citizen.

    g.The applicant departed Australia on 22 August 2015. On his outgoing passenger card the applicant stated that he would be spending most time abroad. The applicant told an officer of the Department that he would be travelling to Iraq to his sister and her children. The applicant’s travel itinerary showed that he entered Basra International Airport on 23 August 2015 and departed from the same airport on 17 September 2015.

13. In his written response to the NOICC the applicant stated that soon after his arrival in Australia with his family, his sister in Iraq needed someone to be with her as she had to undergo a surgical operation and he was the only one who could travel and provide assistance. He started the process of obtaining the Australian travel document. When his father went to book the flight, he was told that the applicant needed a letter from the Iraqi Consulate in order to be able to board the plane. The applicant did not know what to do and asked a friend to help him obtain the letter from the Iraqi Consulate to facilitate his travel. He has no recall of what happened and how the letter was obtained but he was never an Iraqi citizen. The applicant stated that all answers he had provided to the Department were true and correct and that he had never held a citizenship of any country. The applicant stated that he only obtained the letter from the Iraqi Consulate for the purpose of travelling to be with his sister. The applicant states that his sister is an Iraqi citizen because she is married to an Iraqi citizen.

14. The applicant included with his submission a statement from Dr Gregor which outlines the applicant’s medical condition but also refers to the applicant’s ‘stateless citizenship’ and the fact that he travelled to Iraq to be with his sister. The Tribunal accepts Dr Gregor’s evidence in relation to his professional opinion of the applicant’s medical condition but does not consider that Dr Gregor is qualified to comment or provide evidence about the applicant’s citizenship status or the purpose of his travel to Iraq. In particular, the Tribunal does not consider Dr Gregor’s evidence that the applicant is stateless to be probative, and the Tribunal is mindful that Dr Gregor fails to identify any probative basis for that opinion.

15. The applicant provided a written submission to the Tribunal on 29 July 2019, stating that he complied with the Migration Act and that the ground for cancellation does not exist. The applicant states that he and his family are Kuwaiti Bedoons and were stateless at the time of the application and of the visa grant. The applicant refers to the country information which refers to Kuwaiti Bedoons as being stateless and not citizens of any country. The applicant states that he did not provide incorrect answers in the application form and the questions regarding citizenship were left blank because he had no citizenship of any country. The applicant states that he did not provide incorrect information and did not fail to provide correct information and that he complied with s. 101 of the Act. The applicant also states that he did not breach s. 104 of the Act as he was stateless at all times and the applicant refers to the country information as to who may be eligible for the Iraqi citizenship and he claims he is not an Iraqi citizen as both his parents were born in Kuwait and not Iraq. The applicant notes that the letter from the Consulate dated 17 August 2015 was not provided to the Department but was in his possession to show to the airline to allow him to travel to Iraq.

16. The applicant states that since the cancellation of the visa, he obtained further evidence from the Iraqi embassy which confined that he does not have Iraqi citizenship or identification documents. The applicant also presented to the Tribunal a copy of his Iraqi departure visa which shows his nationality as Australian and not Iraqi. The applicant states that he had no right to acquire an Iraqi citizenship.

17. In oral evidence to the Tribunal the applicant stated that all the information he wrote on the application form was correct and he had no citizenship of any country. His parents were born in Kuwait and are stateless. He and his siblings were all born in Kuwait and have no citizenship of any country. With respect to the document from the Iraqi Consulate, the applicant stated that in 2015 he had to travel to Iraq to look after his sister and her children since her husband was missing. The applicant said that they knew it was risky. His father went to the travel agency and was told that the Iraqi government would not let him go to Iraq unless he could show that he was an Iraqi citizen. He approached the embassy, he did not know what was in the paper. The applicant states that he told the Iraqi Consulate that he was stateless and had no citizenship of any country and the Consulate gave him the document to be able to enter Iraq. The applicant states that he could not read English and did not know what was in the document. The Tribunal finds that explanation problematic. In particular, the Tribunal considers it implausible that if the applicant told the Consulate officials that he was stateless, he would be issued with a document which indicated that he was an Iraqi citizen. The applicant said that he had a friend in Iraq and told the friend about his situation and the friend sent him a fake document on WhatsApp, which he then presented to the consulate. He believed it was an Iraqi citizenship card. The Tribunal does not accept that submission as the applicant also claims that he told the embassy official that he was stateless. Either the applicant claimed to be stateless or he claimed to be an Iraqi national on the basis of the fake identity card. The applicant also told the Tribunal that in 2018 he approached the Consulate and told them he was stateless and was issued with the new document. The Tribunal considers it implausible that the Consulate would issue documents on the basis of nothing but the oral statement of the presenter.

18. The applicant told the Tribunal that he could have obtained any document that he had asked for from the Consulate. If that is the case, the Tribunal considers the most recent statement from the Consulate no weight as on the applicant’s own evidence, he could obtain anything from the Consulate on no basis at all.

19. The applicant then told the Tribunal that may be the Consulate officials did check the computer before he was issued with the second letter. If that is the case, the Tribunal does not accept that this would not have been done the first time when the first letter was issued, particularly as the applicant himself claims that he first told the Consulate officials that he was stateless. Either this information was verified, in which case the Tribunal does not consider that the embassy would issue him with the letter that he was an Iraqi citizen, or no checking was done, in which case the second letter is of no probative value.

20. With the applicant’s consent, following the hearing, the Tribunal approached the relevant authority in Iraq to confirm the applicant’s status. In February 2020 the Tribunal was informed that such inquiries could not be completed.

21. For the reasons stated above, the Tribunal has considerable concerns about the applicant’s evidence and finds much of it unpersuasive. In particular, the Tribunal does not accept the applicant’s description of the circumstances in which he obtained the citizenship confirmation, nor his description of his interactions with the Iraqi Consulate. It is possible, in the Tribunal’s view, that the applicant has not been entirely truthful in his description of events. However, that is not a basis for the cancellation of his visa.

22. The evidence on which the primary decision was based comprises a letter from the Iraqi Consulate identifying the applicant is an Iraqi citizen. There is now another statement from the Consulate which refers to the applicant as a stateless person. The two statements are contradictory and this may indicate that the documents issued by the Consulate are unreliable.

23. The Tribunal acknowledges that the applicant presented to the Tribunal a number of documents that refer to him as being stateless. These include a birth certificate and an age assessment and entry and exit stamps relating to his travel to Iraq. The Tribunal also places weight on the fact that the country information cited above supports the applicant’s claims that Kuwaiti born Bedoons could not be granted Iraqi citizenship, supporting the applicant’s contentions.

24. Ultimately, the Tribunal has formed the view that there is insufficient evidence to form the basis of the cancellation. The primary basis for the delegate’s decision is the letter from the Iraqi Consulate which identifies the applicant as a citizen. However, the Consulate has subsequently issued another letter which identifies the applicant as stateless. Given that the Consulate has issued two contradictory letters in relation to the applicant, the Tribunal considers such evidence unreliable and insufficient to form the basis for the cancellation. Should further evidence come to light, it is possible to revisit the decision in relation to the applicant’s status.

25. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    Conclusion

26. 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

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.

    Kira Raif
    Senior Member