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.
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