Case study: “The main thing that stands out to me was that this was someone who from the moment he arrived claimed to be a Rohingya man from Burma. And throughout his first seven years of being in Australia he was assessed as such, had an identity interview that confirmed his Rohingya ethnicity, had engaged with Rohingya interpreters his whole time in Australia, has family members in Australia who are, again, found to be Rohingya. And then because of an issue where he had to resubmit an application and therefore had to reengage the process, the second officer who’s now taking a fresh look at his case - eight to nine years after he arrived- all of a sudden decides that because of a few inconsistencies in the story, decides that it’s an acceptable thing to all of a sudden determine that he’s actually a Bangladeshi national without having presented any Bangladeshi ID documents, without having made mention to links to Bangladesh but just rather because of a perceived lack of credibility. And the problem is that because there’s no finalised, or really set in stone ‘statelessness’ finding, that officer was able to do that, was able to manipulate those facts because the identity assessment can continue to occur through that process until that final decision.” — Ahmad Sawan, Australian Legal Practitioner, Refugee Advice Casework Service The issue of visa cancellation as a real risk for stateless people in Australia arose frequently in the qualitative research and is also strongly supported by the case law research. “We have a lot of calls about people who have then applied for citizenship, and then the Department do another whole investigation into their identity and then cancel their visa.” — Australian Legal Practitioner Under s109 of the Migration Act, the Minister may cancel a visa for non-compliance with s101, the latter provision requiring ‘visa applications to be correct’ including (b) ‘no incorrect answers are given’. Subsection 101(b) appears to uniquely impact stateless people: over a third87 of all sub-s101(b) Protection Visa (PV) cancellations that we identified were because the Minister subsequently decided the PV holder (that is a person already granted a Protection Visa) had falsely claimed to be stateless in their original application. Visa cancellation under s109 risks a stateless person being placed into immigration detention pending removal. Despite changes in legislation following NZYQ (discussed in section 2.2.3 of this Report), this cohort is still vulnerable to prolonged immigration 42 Peter McMullin Centre on Statelessness | Understanding Statelessness in Australia detention,88 particularly where the former visa holder maintains they are stateless and the Department’s position is that they are not cooperating with their removal or their purported country of origin does not accept involuntary returnees.89 If family members hold visas as part of the family unit of the first visa holder, their visas will also be cancelled by operation of law.90 This was observed by Australian legal practitioners interviewed for this Project as having resulted in particularly detrimental consequences for children. Our analysis of 193 tribunal decisions and 27 Federal Court cases (Federal Circuit and Federal Court) concerning applicants alleged not to have complied with sub-s101(b) in claiming to be stateless revealed that, on review, the Tribunal made significant efforts to correct the harshness of the Department’s approach to applying ss109 and 101(b). First, the Tribunal will consider whether there was noncompliance in the way described by the Department. If the Tribunal finds that a person was stateless at the time of the PV application, it will set aside the cancellation.91 Indeed the high proportion of Tribunal decisions setting aside cancellations suggests the Minister and delegates are not properly discharging their duty to reach a high level of satisfaction that facts exist to prove that applicants did not comply with sub-s101(b). This includes not properly considering nationality laws92 or country practices around identity documents;93 conflating eligibility for citizenship with being a citizen;94 and making conceptual jumps using a particular religion or ethnicity as indicative of citizenship.95 Second, if the Tribunal is satisfied there was noncompliance, it has discretion as to whether to cancel the visa. In most cases, the Tribunal has decided not to cancel the PV. Particularly concerning is the impact sub-s101(b) has on visa holders self-identifying as stateless who do not realise they are eligible for a nationality or describe themselves as stateless because their country of origin has persecuted them. This has constituted grounds for visa cancellation by the Department. However, the Tribunal gives consideration to how persons come to identify as stateless. For example, in the case of a Bidoon from Kuwait who moved to Iraq and held an Iraqi Civil Status Card suggesting eligibility for Iraqi citizenship,96 the Tribunal recognised the status of Bidoons as a stateless people and the applicant being ‘not treated as a full citizen’ in accepting why he had incorrectly stated he was stateless.97 Ultimately in almost all cases we analysed, the Tribunal decided to overturn a cancellation decision. This raises serious questions about the purpose of the policy of PV cancellations and its disproportionate impact on people identifying as stateless, particularly where they are owed protection under international law independently of their statelessness. It also raises again the issue of administrative dysfunction- a consistent theme that emerged throughout our research.