1702643 (Refugee)

[2017] AATA 2189

1702643 (Refugee) [2017] AATA 2189 (20 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702643

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Antoinette Younes

DATE:20 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 20 July 2017 at 9:36am

CATCHWORDS

Refugee – Cancellation - Protection Visa – Iraq – Particular social group – Stateless Bedouin – Bidoon – Sunni Muslim – Returnee asylum seeker - Fear of persecution – Fear of violence – Discrimination – Torture – Sectarian violence – Credibility – Incorrect information provided in application – Unauthorised maritime arrival

LEGISLATION

Migration Act 1958, ss 46, 46A, 101, 107, 109, 424AA, 438
Migration Regulations 1994, r 2.41

CASES
Zhao v MIMA [2000] FCA 1235
MIAC v Brar (2012) 201 FCR 240
Saleem v MRT [2004] FCA 234
Gido-Christian v MIAC [2007] FMCA 825
Burton v MIAC (2005) 149 FCR 20
Zhong v MIAC (2008) 171 FCR 444
Brar v MIAC [2012] FMCA 519

Kang v MIAC [2013] FCA 711
MIAC v Brar (2012) 201 FCR 240
Brar v MIAC [2011] FMCA 435
Salama v MIBP [2016] FCCA 540

MIAC v Khadgi (2010) 190 FCR 248

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

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 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) of the Act which requires a non-citizen to fill in their visa application in such a way that no incorrect answers are given.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 19 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. The applicant has made submissions arguing that the s.107 notice is invalid. For the reasons explained below, 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?

10. 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(b).

11. The Tribunal advised the applicant that there is a s.438(1) certificate placed on Departmental file [file number]. The Tribunal indicated that it considered the certificate to be invalid and accordingly the Tribunal would discuss relevant information contained in those documents. The Tribunal indicated that the relevant documents essentially relate to internal communications.

    The applicant’s protection claims

12. In the course of the hearing the Tribunal referred to relevant information contained in the delegate’s decision record a copy of which the applicant provided to the Tribunal, namely that.

    ·The applicant arrived at [location] as an unauthorised maritime arrival [in] May 2012 claiming that his name is [Mr A], that he was born in Kuwait in [Date of Birth 1], that he is stateless (Bidoon[1]), and that he has never had citizenship of any country. He stated that he was expelled from Kuwait in 1991 and that he had lived in Iraq since that time. He stated that he left Iraq using an Iraqi passport issued in his name, which had been obtained unlawfully by a people smuggler.

    ·[In] August 2012, the applicant lodged an application for a protection visa subclass 866 and in that application, he completed a part C of form 866, Application for an applicant who wishes to submit their own claims for protection.

    ·At question 20 of part C of the form 866 asking,Your citizenship at birth, the applicant responded STATELESS BEDOUIN.[2] At question 21 of part C of the form 866 asking, Your current citizenship (if different to at birth), the applicant responded STATELESS.  At question 22 of part C of the form 866 asking, Do you hold any other citizenship or are you a national of any other country? the applicant answered No. At question 24 of part C of the form 866 asking, If you are stateless, how, when and why did you become stateless? Note: A stateless person is not a national or a citizen of any country, the applicant responded, I am a Bedouin and we did not acquire citizenship.

    ·At question 42 of part C of the form 866 indicating, I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries), the applicant responded KUWAIT/IRAQ. At question 43 of part C of the form 866 asking, Why did you leave that country?, the applicant responded, Please refer to my attached Statement of Claims.

    ·At question 44 of part C of the form 866 asking, Have you experienced harm in that country?  the applicant responded, Please refer to my attached Statement of Claims. At question 45 of part C of the form 866 asking, What do you fear may happen to you if you go back to that country?, the applicant responded Please refer to my attached Statement of Claims.

    ·At question 46 of part C of the form 866 asking, Who do you think may harm/mistreat you if you go back? the applicant responded, Please refer to my attached Statement of Claims. At question 47 of part C of the form 866 asking, Why do you think this will happen to you if you go back? the applicant responded Please refer to my attached Statement of Claims.  At question 48 of part C of the form 866 asking, Do you think the authorities of that country can and will protect you if you go back?, the applicant responded Please refer to my attached Statement of Claims.

    ·At paragraph 67 of part C of the form 866, which the applicant signed on 25 August 2012 declaring “The information I have supplied or caused to be supplied on or with this part C of the form 866 is complete. I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.”

    [1]  Bidoon, is an Arabic word meaning without citizenship.

    [2] The term 'Bedu'in in Arabic refers to one who lives out in the open, in the desert. The Arabic word 'Badawiyin' is a generic name for a desert-dweller and the English word ‘Bedouin’ is the derived from this. >

    The applicant agreed with this information. The Tribunal indicated that it understood that Bidoon means without citizenship and the applicant agreed.  He said that he and his family are stateless.  He said his family are still living in Kuwait as Bidoons. The Tribunal referred to the applicant’s claims in the statutory declaration provided in support of the application for a protection visa, and noted that he had claimed to be a stateless Bedouin.  He said he is a Biddoon. He said that he had explained that he was oppressed for being both a stateless Bedouin and Bidoon.

13. Relevantly, in the Declaration, the applicant claimed that:

    ·He was born in Alijahara, Kuwait. He is of Arab (Bedouin) ethnicity and he is a Sunni Muslim. He is married and he has [a number of children]. He has [a number of siblings], who along with his father are in Kuwait.

    ·In Kuwait, he lived as a Bedouin and a nomadic lifestyle. They were persecuted by the Kuwaiti government because of their ethnicity and they did not have rights and could not get citizenship. He suffered constant harassment and he was taunted. This was degrading and humiliating. The authorities did not even issue a marriage certificate or birth certificates.

    ·When he was a teenager, he got a job as [Occupation 1] with [Government Body 1] who noticed his skills at [activity]. In the 1980s, the Kuwaiti government attitudes changed and the authorities began to ostracise Bedouins and towards the end of the 90s, they started to restrict their employment and kick them out of [Government Body 1] for any reason. They restricted their medical access and education. He had to stop going to school. He was thrown out of [Government Body 1] in 1991 and was told that he could not get his job back unless he could provide citizenship papers. He was very angry at the injustice. Some of them asked for their rights and a group went to the [governing body] to ask for their jobs back but they were arrested. He, members of his family and many other Bedouins were driven to the border where they stayed in a camp for [a number of] days. Subsequently they were given cards to reside temporarily in Iraq.

    ·He left Iraq because of harassment and persecution on the basis of his ethnicity and religion. He was regarded as a Kuwaiti and he was identified through his accent. They prevented him from attending a Sunni mosque.  They closed three Sunni mosques leaving only one which was under threat of being bombed at any time by the Shia militia groups. They threatened him and his family and kidnapped his son who was taken to a [location] where they [severely injured him]. He was left there and a passerby took him to hospital where he needed [treatment]. They tried to kidnap his [another] son but he escaped. They [communicated threats] saying that he either converts to the Shia faith, or leave, or be killed.

    ·He cannot relocate to Kuwait because he is stateless and he has no rights to live or return. He cannot relocate to other parts of Iraq because for Bedouins there is no place to go. There is a Shia majority in the south of Iraq and if he were to go to the south, he would be arrested.

    ·His age is [age] and the date of birth of [Date of Birth 1] is correct. The [year] on his [public service] card is incorrect.

14. In submissions responding to the notice of intention to consider cancellation, the applicant’s representative noted that Bidoon means stateless and Bedouin means nomad which are “completely different things”. The applicant maintains that he is stateless who lived as a Bedouin and as a Bidoon in Iraq.

15. During the processing of his protection application, the applicant provided the following translated documents:

    ·Iraqi identity card in the name of [Mr A] recording date of birth as [Date of Birth 2] and place of birth as Dhi Qar (Iraq), Kuwaiti driver’s license in the name of [Mr A] showing nationality as Non-Kuwaiti, Kuwaiti identity card in the name of [Mr A] recording date of birth as [Date of Birth 1], Kuwaiti birth certificate in the name of [name] showing nationality as Non-Kuwaiti.

    ·Age estimation document for stateless persons from the Kuwaiti Ministry of Public Health in the name of [Mr A] stating that the estimated date of birth is [a date in the year of Date of Birth 1].

    ·Education certificate from the Kuwaiti Ministry of Education, in the name of [Mr A] for [year].

    ·Applicant’s Marriage Contract.

    ·Applicant’s [public service] card showing date of birth as [Date of Birth 3].

16. On the evidence before it, the Tribunal is satisfied that in the application for a protection visa, the applicant claimed that he was harmed on the basis of being of the Sunni faith and for being both a stateless Bedouin and Bidoon. He claimed that he is not a national of any country and that the Iraqi passport he used to travel was false and that it was obtained through a smuggler.

17. Although the delegate who assessed the applicant’s protection claims accepted that the applicant is [Mr A][3], a Bidoon who was born in Kuwait, the delegate did not accept that the applicant is stateless. The delegate found that the applicant is a national of Iraq and consequently his claims were assessed on the basis of Iraq and not Kuwait.  The delegate found that the applicant has a well-founded fear of harm on the basis of his membership of a particular social group, namely, “Bidoons in Iraq” as well as his Sunni Muslim faith.

    [3] The delegate accepted that the applicant had various known aliases.  The ITOA process accepted that the differences in structure and spelling are due to variations in Arabic naming conventions.

    Events subsequent to the visa grant

18. The Tribunal discussed with the applicant information contained in the delegate’s decision record that:

    ·[In 2013], [a number of] months after the grant of the protection visa, the applicant departed Australia and in his outgoing passenger card, he stated that he was travelling to Iraq to visit friends and relatives for a period of [duration]. He returned to Australia [in2014] and on his arrival at the airport, he was interviewed by a departmental inspector.  During the interview, the applicant indicated that he had travelled to Iraq to see his wife and children.

    ·[In 2014], the applicant left Australia and in his outgoing passenger card, he indicated that he would be visiting friends and relatives in Iraq for a period of [number] months. His itinerary and boarding pass were cited by the department inspector at the airport and confirmed that he was travelling to Iraq. [Later in 2014], [a number of] months later, the applicant returned to Australia and in his incoming passenger card, he stated that he had stayed in Iraq.

    ·[In 2015], the applicant departed Australia and in his outgoing passenger card, he indicated that he would be visiting friends and relatives in [Iraq] for a period of [duration]. The applicant did not seek permission from the Department to travel to Iraq.

    ·He returned to Australia on [later in] 2015 and in his incoming passenger card, he stated that he had stayed in Iraq. At an interview with the department inspector at the airport, the applicant stated that he had travelled to Iraq using his Australian document and that he did not hold any other identity documents. However, a baggage search found that the applicant was in possession of a letter from [Government Body 2], dated [in 2013] stating that the applicant holds the Australian document travel number [number], that he is an Iraqi national in accordance with his Iraqi identification number [number]. The applicant’s itinerary showed that he travelled to [an airport in 2015] and departed that airport [later in 2015].  The applicant’s Titre de Voyage had date stamps for entry to [that airport] on [the relevant date] and exit on [the relevant date].

19. The Tribunal indicated to the applicant that the above information shows that since he was granted the protection visa [in] July 2013, he travelled to the country of claimed persecution namely Iraq on three occasions for [a number of months each time]. The Tribunal indicated that this would appear to suggest that he does not fear harm in Iraq as claimed particularly as he travelled to Iraq on the first occasion only [a short time] after the grant of the visa. The Tribunal further indicated that the information suggests that he is an Iraqi national and not stateless as he had claimed, that he does not fear returning to Iraq, that he has not suffered harm, and that he does not have an adverse profile of any interest to the Iraqi authorities or any other claimed group. 

20. The applicant did not dispute that he had returned to Iraq.  He said he went to see his wife who has [various illnesses].  He said he went to see his family as well. In relation to the [2014] trip, the applicant said he was intending to go for [duration] but returned after [a shorter duration] because he felt danger. He said he was concealed.  He said he went to see his family to take them to a safer place to live.  He said that he contacted his case manager to inform of his intended travel.  He confirmed that he did not seek permission.

21. The applicant gave evidence that he used his Australian passport to travel to Iraq. After extensive discussion, it was clarified that the applicant was referring to the Australian Titre de Voyage[4] which he thought was a passport.  In relation to the letter from the [Government Body 2] dated [in  2013], the applicant said that the letter was a visa to Iraq. The Tribunal showed the applicant the letter of [Government Body 2] dated [in 2013] stating that the applicant holds an Australian travel document, that he is an Iraqi national in accordance with his Iraqi identification number [number].  The applicant said he was given the visa (the letter) by [Government Body 2].  The Tribunal noted that the letter does not appear to be a visa.  He said the letter was to facilitate his travels to Iraq and that an Iraqi passport holder would not need such a letter. The Tribunal asked the applicant why the letter notes that he is an Iraqi if he is stateless.  He said that this was to facilitate his entry to Iraq. He said he is not an Iraqi citizen.  The Tribunal suggested that this would mean that the letter contained false information. He stated [Government Body 2] is not “lying” in the letter but the letter is a “mere instrument to facilitate” his entry to Iraq.  He said it was given to him to help him enter Iraq. He reiterated that he is not an Iraqi citizen and that the letter was to facilitate his entry to Iraq.

    [4] Post hearing, the applicant provided a copy of the Titre de Voyage.

22. The Tribunal indicated that the letter suggests that he is an Iraqi national contrary to his claims of being stateless. He stated that he used his Australian Titre de Voyage and went to see his wife who was suffering. He said he took his family to a concealed suburb in [a city]. He stated that he has provided all original documents from Kuwait and that even until now, members of his family are still in Kuwait and that he had not seen them for [a long time]. The applicant became tearful and said he thinks that he would never see his family again.  The applicant referred to the Iraqi ID card and said it was “baseless” in that it does not prove he is Iraqi.  He said he came to Australia for safety and that he is very tired.

23. In various submissions, the applicant’s representative noted that:

    ·The applicant provided his national ID card number [number] and this is not a bogus document. The fact that [Government Body 2] issued a visa to the applicant proves that he is not an Iraqi national otherwise there is no reason to issue him with a visa. The applicant maintains that the visa states that he is a national of Iraq “just because he is a holder of an Iraqi ID”. 

    ·The applicant provided the Department with the ID in support of his initial application for refugee status which assisted in the decision to grant the applicant a protection visa as a stateless person. Although the information in the ID was incorrect because the Iraqi government changed the correct place of birth and the date of birth and the applicant’s surname from “[Mr A]” to “[Mr A]”, the Iraqi government did this with all stateless persons who entered Iraq from Kuwait because the Iraqi authorities did not like “the idea of approving what is recorded in Kuwait, because Iraq considered Kuwait as part of it, therefore, they did not want to follow or approve any Kuwait document…”. 

    ·The applicant’s name is [increment of Mr A], his father’s name is [increment of Mr A] and his grandfather’s name is [increment of Mr A]. The applicant maintains that he provided to the Department the national ID number [number]. The last page of the form 866 refers to the fact that the applicant had provided the national ID card and he did not produce a bogus document.

    ·[The information available from] [Government Body 2] refers to those who would be exempt from the requirement to have a visa in order to enter Iraq. Iraqi nationals do not need an Iraqi visa to enter the country and the applicant needed one as he is stateless. The applicant maintains that [Government Body 2] mentioned that he is an Iraqi National “just to facilitate his entry to the country, because his wife and children are in Iraq, because he explained to [Government Body 2] that his wife was still in Iraq and that he needed to be by her side sooner than later, [Government Body 2] facilitated his entry to Iraq through mentioning that he is an Iraqi citizen…”. 

    ·The applicant has provided a copy of his Iraqi National ID but this is inconclusive because the Iraqi nationality law recognises instances where people may have National ID (not the Iraqi citizenship certificate). Section 6 of the Iraqi Nationality Law notes that, amongst other things, the Minister may accept the nationality of non-Iraqi in circumstances such as the person is an adult, a resident, who has entered Iraq legally.

1. The Tribunal asked the applicant about his claims that he has been harassed and taunted.  He stated that he was [Occupation 1] in [Government Body 1] but he and others were dismissed in 1990.  He said they demonstrated and they were seeking compensation from [Government Body 1].  He said he did not get his entitlement of about US$[amount]. The Tribunal asked him [how senior] he was in [Government Body 1] and he stated that he was [Occupation 1]. He said he was in [Government Body 1] for 11 years. He said his father obtained documents to enable the applicant to join [Government Body 1] at a younger age. He said he was [age] years at the time and he had to be [older] so his father obtained documents with an incorrect age. He said his family was poor and they had no money. He said he joined [Government Body 1] in [1979] and [in 1990], he was dismissed because he was not a Kuwaiti national. He said he was taken as a prisoner in 1991 because he was demanding his return to [Government Body 1]. He said he was jailed for about a week and was taken to the Iraqi border not because they thought he was Iraqi but because they wanted to get rid of them.  He said in 1991, the border was opened and there was no Iraqi government at the time.

2. The Tribunal asked the applicant if he had suffered any other harm and he stated that he was tortured whilst he was imprisoned and pressured to leave the country. He said they wanted to get rid of Bidoons.  The Tribunal noted that the claim of torture was not mentioned in the statutory declaration provided in support of the application for a protection visa and he stated that he had told them that he had been tortured. The Tribunal asked the applicant about the claims of attempted kidnapping on his son. He stated that he forgets when this happened but the incident occurred in Iraq. He said he ran away.  He said that although he cannot recall the dates, [another] son was kidnapped and [he was injured]. The Tribunal indicated that his returns to Iraq shortly after the grant of the protection visa for lengthy periods of time raise doubts about his claims of harm and inability to return to Iraq.  The applicant gave evidence that he went to Iraq to secure a safe place for his family. He said when he went to Iraq, he used his Australian documents because they carry special protection and he wanted to be concealed. He said he had been oppressed by the military. He said his wife is still sick but she has told him that she and all the children ran away to [Country 1] [in 2016]. He stated that his wife has an [relative] in [Country 1] who helped her. He said she gave her [relative] money and that the [relative] had authenticated Iraqi documents.  He said the [relative] made documents to facilitate her travels to [Country 1].  He later changed his evidence and said that he does not know much about the documents.  He said he cannot go to [Country 1] himself.

3. The Tribunal found the applicant’s evidence in relation to his claimed harm to be vague, lacking in details and inconsistent with his written claims, raising doubts about the claims and his credibility.  His evidence about how his wife had Iraqi documents was evasive and inconsistent raising further doubts.

4. The Tribunal has considered the applicant’s explanations and submissions but finds them unconvincing.  The applicant had a letter for the purpose of his travels to Iraq from [Government Body 2] stating that he is an Iraqi national in accordance with his Iraqi identification number [number]. Assuming the letter from [Government Body 2] contains accurate information, it is reasonable then to conclude that the Iraqi identification number [number] contains accurate information and that [Government Body 2] had relied on the identification card.  The applicant is claiming to be stateless, not Iraqi, contrary to the statements made in the letter that he is Iraqi.  The applicant is not claiming that the letter is forged, and there is no evidence to indicate that it is which suggests a number of things including that the letter contains incorrect/false information, or that the applicant is making a false claim that he is not an Iraqi national.  The Tribunal finds it difficult to accept that [Government Body 2] is providing an official letter stating that a person is an Iraqi national if they are not.  Even if one were to accept the applicant’s version that he is not an Iraqi national and that the letter was to facilitate his travels to Iraq, this means that he was prepared and for personal gain, to potentially mislead the Iraqi authorities about his nationality status, raising doubts about his credibility.  In consideration of the evidence as a whole and given the concerns about the document, the Tribunal finds that the letter of the [Government Body 2] contains correct information that the applicant is an Iraqi national and that it is probative evidence that he is not stateless as claimed.

5. The applicant gave evidence that in 2013, he tried to bring his family to Australia but he was not successful. In accordance with s.424AA, the Tribunal discussed with the applicant information contained in the departmental file that in October 2013, [name], whom the applicant confirmed to be his wife, had lodged a subclass 309 partner visa application sponsored by the applicant.  The Tribunal noted that his wife provided an Iraqi passport suggesting his wife and his children are Iraqi nationals, contrary to his claims that they are stateless.  He said the papers were not original.  The applicant said and as submitted by the representative there was basis for the documents but the [relative] legitimised the documents.    When invited to comment on or respond, the applicant stated that the tribe and the family are in Kuwait and they have no foundations in Iraq. He stated that his wife had arranged for the papers with her [relative] who facilitated all with money. The Tribunal indicated that this would then suggest that false documents had been provided in the subclass 309 visa application, with which the applicant agreed. He later said that he does not have any information that the documents were falsified because his wife’s [relative] did all of this and that the papers provided were not original.  The Tribunal found the applicant’s evidence in relation to the documents provided in support of the application for a partner visa to be evasive and inconsistent, raising doubts about his claim that they were not originals.  On the evidence before, the Tribunal is satisfied that the wife’s Iraqi passport is highly persuasive evidence that she and the children are Iraqi nationals, contrary to the applicant’s claims that they are stateless.

6. In accordance with s.424AA, the Tribunal discussed with the applicant information contained in the departmental file that in October 2013, he had lodged a form requesting a change of details. He said he wanted his full name to be recorded. The Tribunal noted that the Arabic version in the protection visa application refers to the full name and consequently, the Tribunal has not drawn any adverse inferences on this basis.

7. The applicant provided to the Tribunal UNHCR documents dated [in] January 2017 in relation to the applicant’s spouse and [children].  The documents noted that UNHCR is assessing their refugee claims.   The Tribunal noted that the documents refer to members of the family as being Iraqi nationals, contrary to his claims that they are stateless. The applicant said that the family had provided correct information to UNHCR.  The Tribunal noted that this means they are Iraqi nationals and that they have advised UNHCR that they are Iraqis.  He said his [relative] had arranged the papers. He said the [relative]paid money to formalise the process so they can leave.  The representative submitted that at the time of the protection visa application, they were stateless but the applicant’s [relative] formalised the process. The Tribunal found the applicant’s evidence in relation to the UNHCR documents to be evasive and inconsistent.  On the one hand, the applicant was saying that the family had provided correct information to UNHCR but on the other hand, he is saying that the [relative] had arranged all through payment.  The Tribunal is satisfied that the UNHCR documents provided to the Tribunal provide further evidence that the spouse and children are Iraqi nationals.

8. The representative’s submissions are unconvincing.  In the course of the hearing, the applicant reiterated his reasons for going to Iraq.  In post-hearing submissions, the representative indicated that Direction 62 introduced changes to the family migration scheme which meant that the only way for the applicant’s family to come to Australia is by him getting Australian citizenship which would take a number of years. The applicant’s wife and children were able to get some Iraqi ID with the help of the wife’s [relative] but the applicant does not know the details of how the [relative] was able to get the documents. As the applicant stated in the course of the hearing, it is well-known that Iraq is a “fairy corrupt country especially when it comes to the ID and passports…”[5]. The applicant’s family fled Iraq in January 2017 because of incidents of harm in December 2016 and they have become registered with UNHCR. The submissions that there is corruption in Iraq means that the Tribunal needs to critically examine Iraqi documents but it also means that the Tribunal needs to cautious in how much weight it gives to any such documents.  The applicant was not able to explain how his family obtained those documents but what is clear is that the UNHCR documents show that they are Iraqi nationals.  On the information before it, the Tribunal is satisfied that the UNHCR documents are evidence that the applicant’s wife and children are Iraqi nationals, contrary to his claims that they are stateless.

   [5] Reference was made to Land Info which notes that Land Info does not have “concrete knowledge of the extent of corruption in the part of the government apparatus which issues ID cards. Since the extent of corruption in Iraq is very high, it is fair to assume that corruption also occurs in the issuance of ID cards.”

9. There are documents before the Tribunal, some of which had been provided to the Department.  A number of those documents could potentially corroborate the applicant’s claims of being a stateless Bedouin.  There are documents that show different dates of the birth of the applicant.  He explained to the Tribunal that his father had arranged for a document to be provided to the Kuwaiti authorities showing that the applicant is older so that he could join [Government Body 1].  Assuming this is correct, it still means that there is inconsistent information before the Tribunal relating to his age as well as other details.  In the course, the Tribunal discussed those documents and suggested that it would further consider weight.  The Tribunal referred to the document titled State of Kuwait, Ministry for Education in the student name of [Mr A], issued [in] 1983, for [a school year]. The Tribunal asked the applicant how this document could refer to grades obtained in years [range of years] when it was issued [before those years commenced].  The applicant said it is referring to future marks and attendance.  The representative noted that this was the normal procedure. The Tribunal finds it difficult to accept that a document purported to be authentic would contain specific information about future grades and days of absence.  The Tribunal is not persuaded by the explanations and submissions.  The Tribunal is of the view that those matters raise doubts about the authenticity of the document and/or the information contained in it. 

10. For the reasons explained above, the Tribunal has decided that the applicant is not credible and the documents that he has provided do not overcome the Tribunal’s concerns.  The Tribunal has therefore not given weight to the following documents:

    ·State of Kuwait, Ministry for Education documents in the student name of [Mr A], issued [in 1983], in relation to the years [range of school years].

    ·State of Kuwait Ministry for Public Health, Personal Details Card, in the name of [Mr A], noting date of birth to be [Date of Birth 1].

    ·State of Kuwait Ministry for Public Health, [department name], in the name of [Mr A], issued [in] 1977, noting Bedoun (without nationality) as the Nationality.

    ·State of Kuwait Ministry for Public Health, [department name], Age Estimation Form for Stateless People in the name of [the applicant’s wife], issued [in 1979], noting Bedoun as the nationality.

    ·State of Kuwait Ministry for Public Health, in the name of, [name], referring to “without nationality “Bedoun”).

    ·State of Kuwait Ministry for Health titled [document title], in relation to, [name], dated [in 2011].

    ·Untranslated documents.  In the course of the hearing, the representative indicated that they are, a marriage certificate, age estimation document saying that the applicant was born in [Date of Birth 1] and that he is Bidoon, and emergency/hospital health card.

    ·Kuwaiti driver’s license in the name of [Mr A] showing nationality as Non-Kuwaiti, Kuwaiti identity card in the name of [Mr A] recording date of birth as [Date of Birth 1], Kuwaiti birth certificate in the name of [name] born on [date of birth] showing nationality as Non-Kuwaiti.

    ·State of Kuwait [public service] card showing date of birth as [Date of Birth 3].

11. The applicant has provided a copy of a photograph of a male whom the applicant identified as his son. The photograph has a handwritten note that the [son’s injuries] were due to torture in Iraq. As alerted to in the hearing, although it is possible that the applicant’s son has [those injuries], on the evidence before it, the Tribunal is not satisfied that the [injuries] are due to he claimed torture.

12. The documents provided by the applicant contain inconsistent information and the Tribunal cannot resolve the inconsistencies.  However given the Tribunal’s concerns about the applicant’s credibility and a number of the documents provided by the applicant, and in consideration of the evidence as a whole, the Tribunal is not satisfied that the documents corroborate the applicant’s claims that he is a stateless.

13. The representative made submissions that according to UNHCR and DFAT, under Saddam Hussein’s regime, the government offered citizenship to Bidoons living in Iraq and approximately 47,417 took up the offer and obtained citizenship. In order to obtain the Iraqi citizenship and although not allowed to own property, Bidoons had to declare that Kuwait was not their place of birth which meant that they had to renounce association with Kuwait. The rest of that population remained stateless. Since the fall of the Saddam Hussein regime in 2003, it has not been possible for Bidoons to obtain Iraqi nationality. The applicant is from the [tribe name] which is a well-known Bidoon Sunni tribe. It is not an Iraqi tribe and accordingly it is not possible for the applicant to obtain the Iraqi citizenship without the approval of the local tribe. The applicant’s parents and siblings live in Kuwait and they are stateless. His father passed away in Kuwait.

14. The most recent report from DFAT[6],  notes that:

    3.57     The Bidoon are a group of often stateless persons in the Gulf region, primarily Kuwait, including those unable to gain citizenship at the time of Kuwait’s independence due to a lack of documentation, as well as those who renounced their citizenship to move to Kuwait (from countries such as Iraq). There is little verifiable information available on the status of Bidoon in Iraq. During the Gulf War a number of Bidoon fled (or were deported) to Iraq and subsequently faced difficulties re-entering Kuwait. Kuwait considered those who fled to Iraq as supporters of the Ba’ath Party regime and therefore not loyal to Kuwait. An estimated 100,000 Bidoon entered Iraq during this period. The majority are Sunni, with a small minority being Shia. More than 80 per cent are reported to live in the south, although some have moved to the north.

    3.58     Approximately 47,000 Bidoon were granted Iraqi nationality by the Ba’ath Party regime through an assistance package called ‘makremiayah’. To obtain citizenship, Bidoon had to declare that Kuwait was not their place of birth (that is, they had to renounce association with Kuwait) and often needed sponsorship from a local tribal group. After 2003, Bidoon were no longer able to claim citizenship through ‘makremiayah’. Bidoon who were unable or unwilling go through ‘makremiayah’ remain stateless. In-country contacts report that approximately 54,000 Bidoon remain stateless. A stateless person has to prove that he or she was registered during the 1957 Census in order to gain citizenship. Local authorities reportedly maintain a certain degree of flexibility for Bidoons with regards to this requirement. Bidoons can access Iraqi nationality through their affiliation with some tribal groups, provided they do not declare ‘Kuwait’ as their place of birth. Bidoon may face difficulty in obtaining Iraqi nationality documentation due to a combination of not being registered or not being able to meet the supporting documentation requirements. Stateless Bidoon do not have access to many services and public sector job opportunities, nor can they register land in their own names, sign rental contracts or inherit. Births and deaths of stateless Bidoons are not normally registered by Iraqi officials.

    [6] DFAT Country Information Report Iraq, 26 June 2017.

15. The Tribunal is satisfied that it is possible that although the applicant might have been a stateless Bidoon at some stage, it is plausible that he and members of his family have acquired Iraqi citizenship which was possible prior to 2003 through the process of the ‘makremiayah’ The applicant came to Australia in May 2012 so it is entirely plausible that he and his family registered through the makremiayah and acquired Iraqi nationality.

16. The Tribunal accepts as plausible that the applicant lived in Kuwait and that he was in the [Government Body 1], however on the evidence before it the Tribunal does not accept that the applicant is a stateless Bedouin or that he had suffered any of the claimed harm in Kuwait for any of the claimed reasons.  On the evidence before it, the Tribunal finds that the Iraqi identity card in the name of [Mr A] recording date of birth of [Date of Birth 2] and place of birth as Dhi Qar (Iraq) as well as the letter from the [Government Body 2] are strong evidence that the applicant is a national of Iraq. The Tribunal is satisfied that when the applicant lodged the application for a protection visa, he was a national of Iraq, contrary to the claims he had made in the application for a protection visa and inconsistent with the answers that he provided in the application. For those reasons, the Tribunal finds that the applicant provided incorrect information in the application for a protection visa when he responded to questions 20, 21, 22, 24, 42, 44, 46, and 47 of part C of the form 866.

17. In consideration of the evidence as a whole, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.

    Validity of the s.107 Notice

18. As mentioned earlier, the Tribunal has proceeded on the basis that the s.107 notice is valid. For the following reasons, the Tribunal has found the s.107 notice to be valid.

19. In oral and written submissions to the Tribunal, the representative questioned the validity of the s.107 notice. The representative submitted that the delegate’s reference to Bedouin rather than Bidoon is confused, erroneous and invalidates the notice.  The representative argued that the notice refers to Bedouin, a mistake repeated despite a number of submissions and that the applicant was granted the protection visa on the basis of being a Bedouin which was incorrect as the applicant is a Bidoon and not a Bedouin.  The representative noted that the applicant was not assessed against Kuwait because he was found to be an Iraqi national and accordingly the country of persecution is Iraq.

1. The question relating to whether the visa was granted on the basis of the information provided in the application is a distinct question relating to the exercise of discretion (later discussed). The issue is whether the notice was sufficient to fairly inform the applicant of the basis upon which cancellation was being considered so that the visa holder was adequately equipped to provide relevant information and to make such submissions.[7] The Tribunal has found and for the stated reasons that in the application for a protection visa, the applicant claimed that he was harmed on the basis of being, amongst other things, both a stateless Bedouin and a Bidoon. He claimed that he is not a national of any country and that the Iraqi passport he used to travel was false and that it was obtained through a smuggler. The s.107 notice refers to the specific questions in the 866 application where the applicant had claimed that he was stateless. In the Notice, the delegate noted that “I consider your answers to questions 20, 21, 22 and 24 of Part C of Form 866 which ask about your citizenship where you answered “Stateless Bedouin” are incorrect…”.

   [7] Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25]. In that case the Court was considering the requirements of s.119 notifications for the purposes of Subdivision D cancellation but the principle would be equally applicable to s.107 notifications. The decision was cited with approval by the Federal Court in MIAC v Brar (2012) 201 FCR 240: see [57]-[58], a decision that was concerned with a s.107 notification.

2. The sufficiency of notification is to be tested by reference to the statutory purpose. For example, simply identifying the statutory provision not complied with would not be an adequate provision of particulars for s.107(1)(a).[8] However, it may not always be necessary to identify with precision particular answers that are incorrect. For example, in Gido-Christian v MIAC, where the core issue related to the genuineness of the applicant’s spousal relationship, the s.107 notice identified the incorrect ‘answers’ as including the applicant’s declaration that she ‘did not marry or enter a de facto/common law relationship to become eligible for migration to Australia’, and that her application was lodged on the basis that she was in a genuine and continuing marital relationship with her sponsor. The Court held that when read in a common sense way, the notice provided sufficient information and satisfactorily complied with legislative requirements. His Honour stated that this was not a case where a specific incorrect answer needed to be established when dealing with what could only be described as a straightforward and significant notion, namely the genuineness of the relationship.[9]

   [8] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004) at [43]-[44].

   [9] Gido-Christian v MIAC [2007] FMCA 825 (McInnis FM, 31 May 2007) at [87]. See also Burton v MIAC (2005) 149 FCR 20; but contrast Zhong v MIAC (2008) 171 FCR 444.

3. Further, the fact that allegations in a s.107 notice may be factually incorrect will not invalidate the notice. Relevantly, in Brar v MIAC[10] the s.107 notice indicated that the applicant had failed to comply with s.103 because he had provided a skills assessment from Trades Recognition Australia (TRA) obtained by using a false work reference (a ‘bogus document’) in circumstances where the provision of such an assessment was necessary for the grant of his visa. The Court reasoned that even though TRA had not in fact been validly specified as a relevant assessing authority, and so the s.107 notice was incorrect in stating that the grant of the visa was conditional on provision of the assessment, both the applicant and the Department had proceeded on the basis the assessment was necessary and the applicant had provided false or misleading information to TRA in order to obtain it. The Court held that the allegations in the s.107 notice were thought to be material at the time the notice was issued and the notice was not invalid simply because they were included.[11]

   [10] [2012] FMCA 519 (Driver FM, 31 July 2012).

   [11] Brar v MIAC [2012] FMCA 519 (Driver FM, 31 July 2012) at [71]. See also Kang v MIAC [2013] FCA 711 (North J, 22 May 2013).

4. A minor defect in the content of a s.107 notification which does not go to the substance of the allegations or affect the visa holder’s capacity to respond to the allegations will not necessarily preclude valid cancellation under s.109. The Full Federal Court in MIAC v Brar[12] confirmed that a purposive approach must be taken, so that an error which is minor and insignificant in the context of the facts of a particular case and which does not go to the substance of the allegation of non-compliance will not deprive a decision maker of jurisdiction under ss.108 and 109. In Salama v MIBP,[13] the Court dismissed the former visa holder’s argument that the s.107 notification did not comply with s.107(1)(c)(ii),[14] and held that even if there was a defect in the notification, it was trivial and insignificant, given there was no suggestion that the visa holder was denied any reasonable opportunity to respond in writing to concerns held about the Minister about possible non-compliance with the visa holder’s obligations.[15]  

   [12] (2012) 201 FCR 240, overturning Brar v MIAC [2011] FMCA 435 (Driver FM, 28 July 2011).

   [13] [2016] FCCA 540 (Judge Smith, 18 March 2016).

   [14] Salama v MIBP [2016] FCCA 540 (Judge Smith, 18 March 2016) at [19].

   [15] Salama v MIBP [2016] ibid at [23].

5. On the evidence before it, the Tribunal is satisfied that the s.107 notice makes specific reference to the claimed incorrect responses to questions in the 866 application providing the applicant with a meaningful opportunity to respond and to understand the potentially adverse information.

   Should the visa be cancelled?

6. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

7. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

   ·     The correct information

8. The correct information is that at the time of the application for a protection visa, the applicant was not stateless and that he is an Iraqi national. The Tribunal gives this aspect significant weight in deciding that the visa should be cancelled.

   ·     The content of the genuine document (if any)

9. On the basis of the available information, the Tribunal is satisfied that the applicant’s Iraqi passport, Iraqi identity document, marriage certificate are genuine documents containing accurate information in relation to the applicant’s place of birth.

   ·     Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

10. In oral and post-hearing submissions, the representative indicated that:

    ·The applicant has raised issues of statelessness, membership of a particular social group and his Sunni faith in a Shia-dominated area in south Iraq. The applicant was granted a protection visa on the basis of his membership of a particular social group and Sunni faith.

    ·The delegate did not accept that the applicant is stateless but accepted that he is a Bidoon who was born in Kuwait. The delegate found that the applicant has a well-founded fear on the basis of his Sunni faith and for being a Bidoon.  The delegate found that the applicant is a national of Iraq and assessed his claims on the basis of being a Bidoon in Iraq.

    ·The decision to grant the applicant a protection visa was not based wholly or partly on incorrect information.

11. The Tribunal is satisfied that the delegate who determined the applicant’s protection visa application found that the applicant is a Bidoon who was born in Kuwait and that the applicant “does not appear to be stateless, but rather, appears to be an Iraqi national…I am therefore satisfied that Iraq is the applicant’s receiving country…The applicant is a former habitual resident of Iraq…”  The delegate found that the applicant has a well-founded fear of harm on the basis of his profile of being a member of a particular social group, namely, “Bidoons in Iraq” as well as his Sunni Muslim faith. 

12. Although the protection visa was granted on the basis of, amongst other things, the applicant being an Iraqi national and accordingly, the decision to grant the visa was not based, wholly or partly, on incorrect information, this does not mean that the visa should not be cancelled.   The Tribunal has considered this aspect carefully and has given it weight but the Tribunal is of the view that this does not outweigh the fact that the applicant had provided incorrect information in the application for a protection visa.  For the stated reasons, the Tribunal has found that the claim that he was stateless is incorrect.

    ·     The circumstances in which the non-compliance occurred

13. As noted earlier, subsequent to the grant of the protection visa and for substantial periods, the applicant returned to Iraq on 3 different occasions. The Tribunal has found that the applicant was not truthful in his claims of being stateless. The Tribunal is satisfied that the applicant made those inaccurate claims in order to secure a favourable migration outcome.

14. In submissions responding to the notice of intention to consider cancellation, the applicant’s representative noted the following:

    ·The applicant as an unauthorised maritime arrival could not sponsor his family to Australia and he felt that he had no other option but to go to Iraq to see them. He went to Iraq to see his wife who was extremely ill (medical reports attached). His wife and children live in Nasiryah in Dhi Qar province. His father and siblings live in Kuwait. His wife and children who are of the Sunni faith are suffering a great deal of persecution in Iraq due to the sectarian violence in the south.

    ·The applicant maintains that he fears for safety of his family but he was forced to return to his family in Iraq because they have no one else to care for them. The applicant went to Iraq on the first occasion because his wife developed [an illness]. His wife is very anxious particularly when she hears news about targeting of Sunnis by the Shia militias in the South.

    ·The applicant maintains that he is stateless and his answers in the protection visa are correct. He has never been granted an Iraqi citizenship and he is not a national of any other country.

15. In the course of the hearing, the applicant reiterated his reasons for going to Iraq.  In post-hearing submissions, the representative indicated that Direction 62 introduced changes to the family migration scheme which meant that the only way for the applicant’s family to come to Australia is by him getting Australian citizenship which would take a number of years. The applicant went to Iraq to visit his ill wife and he maintains that he is a stateless person.

16. The applicant does not agree that he has provided incorrect information. He has explained his returns to Iraq on the basis of the illness of his spouse.  He has provided corroborative evidence although the document titled “[title of document]”, purported to be relating to the applicant’s wife, make reference to the gender being male and the age being [different from the wife’s age].  The Tribunal has been persuaded by the submissions that those errors are the doctor’s mistakes.

17. Although the Tribunal has credibility concerns, the Tribunal accepts that the applicant’s spouse had been ill.  The Tribunal acknowledges that the applicant’s spouse’s health is important for the applicant and the Tribunal does not wish to sound harsh or unkind in any way, however and for the above reasons, the Tribunal is not satisfied that applicant’s returns are fully explainable on this basis.

18. The applicant has claimed to be stateless and for the reasons given, the Tribunal has found that the applicant is an Iraqi national.

19. The Tribunal has carefully considered the circumstances in which the non-compliance occurred but the Tribunal is not satisfied that those circumstances mean that the visa should not be cancelled.

    ·     The present circumstances of the visa holder

20. The applicant has no immediate family in Australia.  His spouse and children are not in Australia. 

21. The applicant has provided a report of[a doctor] of [a medical practice], dated [in] April 2016, referring to the applicant as being a patient of the practice and that he has been seen for supportive counselling, in relation to feelings of lack of energy, motivation, intrusive memories, flashbacks and trauma. The report concluded that the applicant is unfit to work. The applicant gave evidence that he continues to see the doctor in relation to his [a number of symptoms].

22. The Tribunal accepts the medical evidence that the applicant had been in supportive counselling in relation to a number of clinical and psychological concerns. However the Tribunal is not satisfied that those concerns mean that the applicant’s visa should not be cancelled.

    ·     The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

23. The applicant has maintained that he has provided correct information. He has not acknowledged that he had provided false and misleading information about his nationality when seeking protection from the Australian authorities.  The Tribunal is of the view that this demonstrates disregard and disrespect for due process and a continued willingness to mislead.

24. The Tribunal has given this aspect significant weight in deciding that the visa should be cancelled.

    ·Any other instances of non-compliance by the visa holder known to the Minister

25. There is no information before the Tribunal to suggest that there are any other instances of non-compliance.  The Tribunal has given this aspect favourable weight.

    ·     The time that has elapsed since the non-compliance

26. The applicant was granted the protection visa on 23 July 2013. There is no evidence that the applicant has established strong ties in Australia. 

27. The Tribunal does not consider this timeframe to be significant or persuasive to mean that the visa should not be cancelled.

    ·     Any breaches of the law since the non-compliance and the seriousness of those breaches

28. There is no information before the Tribunal to suggest that there has been any breach of the law since the non-compliance. The Tribunal has given this aspect favourable weight.

    ·     Any contribution made by the holder to the community.

29. There is no information before the Tribunal to suggest that there has been community contribution.

    ·     Are there any other relevant factors which should be considered?

30. Whilst these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

31. The Tribunal discussed with the applicant the information contained in the delegate’s decision record relating to the International Treaties Obligations Assessment (ITOA) completed on 25 January 2017. The Tribunal noted that the assessment found that the applicant is a citizen of Iraq and that he is not a person in respect of whom Australia has non-refoulement obligations. The Tribunal noted that whilst the Tribunal has to make its own assessments, the Tribunal gives significant weight to the findings of the ITOA.  The applicant said he is [age] years old and all his life, he has been migrating.  He said he has not seen his family for years and he might die without seeing them.  He said in Iraq there are gangs, lack of security, sexual assaults, and fanatic religious groups.  He said he never felt safe until he came to Australia.  He said he is seeking “pity” from the Australian authority and consideration on humanitarian grounds. 

32. In submissions, the representative noted that:

    ·The applicant’s Sunni faith needs to be considered; the fact that he did not experience harm when he went to Iraq does not mean that there is no future harm. The applicant has been persecuted in Iraq which is evidence of foreseeable future persecution. The situation in Iraq is very risky especially in relation to Sunnis in the South. The applicant maintains that he fears Shia militias in the South because he is a member of the Sunni minority in the South. The applicant maintains that he spent his time in Iraq hiding in the farms in Dhi Qar, south of Iraq. He also used the Australian travel document to enter Iraq because he is not a national of Iraq. The applicant maintains that the circumstances that led him to go to Iraq were compelling. He is of good character and has not breached any Australian laws.

    ·Country information (cited) indicates that Biddoons in Iraq can be seriously harmed. In relation to DFAT’s report of February 2015 indicates that "... The practice of seeking asylum then returning home once conditions permit is well accepted among Iraqis, as is evidenced by large numbers of dual nationals from the US, Western Europe and Australia returning to take up residence and jobs in Iraq. The fat has met many Iraqis who have gained protection visas and then returned to Iraq. DFAT has seen no evidence to suggest voluntary returnees from the West are not assimilated back into their communities.”  The applicant maintains that he would be targeted because of his faith, statelessness and not because he would be considered a failed asylum seeker. There is no evidence that the Iraqi authorities in Dhi Qar have sought to protect the Sunni population. The applicant confirms that he is Sunni who cannot relocate to any other part of Iraq because Sunnis are targeted everywhere in Iraq, including Basra (reports cited).

    ·Country information including a recent UK Upper Tribunal decision[16] indicates that a distinction is made between those who spend a few months and those who spend years. Country information indicates those returning from Western countries might be at heightened risk of kidnapping.  The Tribunal notes that the decision also indicates that the “evidence does not show a real risk on this ground alone but it may form one part of a cumulative assessment of risk of return depending on the facts of the particular case…” Country information indicates that there has been a deterioration in religious freedom in 2014 and 2015 and that whilst extreme groups such as ISIL were responsible for a large proportion of abuses, the reports also show abuse by the Popular Mobilisation Forces, recognised by the Prime Minister, al-Abadi. Reports indicate that there is an ongoing campaign of revenge by the Shia majority because of public perception that Sunnis sympathised with Saddam Hussein’s regime and extremist groups.

    [16] BA (returns to Baghdad) Iraq CG [2017] UKUT 00018 (IAC).

    ·The security situation in Iraq has remained fluid and there are threats of crime, increasing kidnappings for ransom, robberies targeting businesses and company payrolls. Throughout the Basrah province, intimidation tactics are used and whilst these tactics appear to be intended to send a message, there is a real risk of death and/or injury to those within proximity. The US Consulate General in the region has recommended additional security measures when travelling and there is no reliable public transportation system in Iraq. The US Department of State has issued a travel warning that US civil aviation flying in Iraqi airspace is at risk from combat. During the height of the insurgency in 2006 and 2008, insurgent groups began to alienate large segments of the local fighter base. The conflict in Syria is providing opportunities for both Shia and Sunni militia groups to contribute financially and with personnel. As of June 2014, government forces were overrun in Mosul and lost control of large swaths of northern and central regions of Iraq. There is an anti-American anti-Western sentiment. Civil unrest can occur at any time in Iraq and there is tribal violence. Iraqi’s environment is harsh and the environment changes quickly with temperatures ranging from 20°F to 120°F. There are dust storms and heavy fog. The Iraqi police and army routinely set up temporary checkpoints without notice.

    ·As a stateless Bidoon of the Sunni faith, the applicant faces risk in Iraq. The applicant maintains that he did not provide incorrect information.

1. The Tribunal discussed with the applicant DFAT’s report[17] in relation to the security situation in Southern Iraq which has remained more secure than central Iraq.  The Report noted that levels of violence in the southern Iraq such as Nasiryah (Dhi Qar), is significantly lower than Baghdad province. In its more recent report, DFAT[18] noted:

   [17] DFAT Country Report, Iraq, 13 February 2015.

   [18] DFAT Country Report, Iraq, 26 June 2017.

   Southern Iraq (including Basra, Karbala, Wasit, Qadisiyah, Maisan, Dhi War, Muthanna and Najaf provinces) has been and remains more secure than other parts of the country, although recent reports suggest a deterioration of law and order in Basra. Generalised criminality occurs, but at a lower level than in Baghdad. Intra-Shia violence between different Shia armed groups occurs in southern Iraq and is influenced by political and / or criminal factors. Credible in-country contacts suggest that the risk of being caught up in intra-Shia violence is predominantly borne by those who are actively involved in a militia or tribal group.

2. The Tribunal has not accepted that the applicant is a stateless Bidoon and found that he is an Iraqi national. The Tribunal has decided to give the applicant the benefit of the doubt and accepts as plausible that the applicant is of the Sunni faith.  The Tribunal acknowledges that Sunnis could face violence and that DFAT’s report of June 2017[19] and other reports provided by the applicant refer to an increase in societal discrimination and violence. The Tribunal acknowledges that and as discussed in the course of the hearing, there is a level of insecurity and violence in Iraq but notes that many Iraqis have returned and seeking asylum is well-accepted.[20] He said many of the returnees are not from Kuwait.   He said in the south, there is no guaranteed security and that he is aware of kidnappings and numerous crimes not announced by the Iraqi authorities.  He said if one belongs to a big tribe, they could be protected.  He said his tribe is mostly in Kuwait. 

   [19] DFAT Country Information Report Iraq, 26 June 2017

   [20] DFAT Country Report, Iraq, 13 February 2015 para 5.27 and DFAT Country Report, Iraq, 26 June 2017

3. On the evidence before it, the Tribunal is not satisfied that the applicant has a profile that could potentially mean that he would be targeted on the basis of his Sunni faith, or claimed Kuwaiti accent, or any other basis. DFAT’s report of 2017 refers to the south of Iraq as being more secure than other parts of the country, although there have been suggestions of deterioration of law and order in Basra.  It is the Tribunal’s task to consider whether there is a real chance or a real risk of serious or significant harm facing the applicant on his return; a generalised level of insecurity does not normally enliven protection. There is no dispute that the applicant has returned to Iraq on three occasions. The fact is, the applicant did not suffer any harm during his significant stays in Iraq. The applicant has claimed that when he went to Iraq, he was hiding.  In consideration of the evidence as a whole and given the Tribunal’s concerns about the applicant’s credibility, the Tribunal does not accept that he was hiding.  The Tribunal appreciates that past harm is not necessarily determinative of future harm, it is nevertheless a reasonable guide. The Tribunal has carefully considered the applicant’s circumstances and on the basis of the available information and in consideration of the evidence as a whole, the Tribunal is not satisfied that there is a real chance or a real risk of the applicant facing serious or significant harm, as contemplated by the Act if he were to return to Iraq. The Tribunal is satisfied that the applicant does not have an adverse profile on the basis of his Sunni faith or any other characteristic that would mean that he would face any of the harm contemplated by the Act.

4. The Tribunal has also considered whether the applicant could face harm on the basis of being a returnee from Australia. In this regard, DFAT’s report noted:

   5.27 DFAT has considerable evidence showing a number of Iraqis return home, sometimes only months after securing residency in Australia, to reunite with families, to set up businesses, or take up or resume positions in the government or public sector. The practice of seeking asylum then returning home once conditions permit is well accepted among Iraqis, as is evidenced by large numbers of dual nationals from the US, Western Europe and Australia returning to take up residence and jobs in Iraq. DFAT has met many Iraqis[21].

   [21] DFAT Country Report, Iraq, 13 February 2015.

5. In its more recent report, published on 26 June 2017[22], DFAT noted:

   [22] DFAT Country Report, Iraq, 26 June 2017.

   DFAT has considerable evidence that shows a number of Iraqis return to Iraq, sometimes only months after securing residency in Australia to reunite with families, establish and manage businesses or take up or resume employment. The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. DFAT has limited evidence to suggest that voluntary returnees from the West face difficulties in assimilating back into their communities. However, in-country contacts have said that returning to Iraq can be difficult, particularly if the individual does not return to their original community. Integration within new communities is difficult, and complicated by the significant influence of patronage and nepotism that affect many aspects of day-to-day life in Iraq.

6. The Tribunal is satisfied that there is not a real chance or a real risk of the applicant facing serious or significant harm as contemplated by the Act, on the basis of being a returnee from Australia.

7. The Tribunal has considered the applicant’s potential status if his visa were to be cancelled. As an unauthorised maritime arrival, the applicant would not be eligible to apply for any further visas, which could lead to a period of detention pending departure. The applicant is an Iraqi citizen and he could depart Australia voluntarily and return to Iraq at any time.

8. The Tribunal has also considered that if the visa were to be cancelled, the applicant would be subject to s.46(1) of the Act barring him an application for a further Visa. Moreover, pursuant to s.46A(1B), he would be barred from making a further application for a protection visa while in the migration zone, unless the minister intervenes and lifts the bar.

9. In summary and in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has any profile of any adverse interest to any group, or the Iraqi authorities that would mean that there is a real chance or risk that he would face harm as contemplated by the Act.

10. In essence, in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution arising essentially and significantly for one or more of the five Convention reasons if he returns to Iraq for any other reason. 

11. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

12. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

    Antoinette Younes

    
    Senior Member

    ATTACHMENT – Relevant Extracts from the Migration Act 1958:

    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.