1706559 (Refugee)

[2017] AATA 2010

1706559 (Refugee) [2017] AATA 2010 (28 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706559

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Shahyar Roushan

DATE:28 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 September 2017 at 5:41pm

CATCHWORDS
Refugee – Cancellation – Protection visa – Iraq – Irregular Maritime Arrival – Religion – Shia Muslim –Fear of Sunni Militia – Incorrect information supplied

LEGISLATION
Administrative Appeals Tribunal Act 1975, s 33
Migration Act 1958, ss 5, 97-101, 107, 109, 140, 424A
Migration Regulations 1994, r 2.41

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
McDonald v D-G of Social Security (1984) 1 FCR 354
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Sullivan v CASA (2014) 226 FCR 555
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
Zhao v MIMA [2000] FCA 1235

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).

   BACKGROUND

2. The applicant arrived in Australia [in] November 2011 as an Irregular Maritime Arrival (IMA).

3. The applicant sought protection and in a detailed statement, dated [in] February 2012, he stated the following:

   I, [Applicant’s name], unemployed, and currently being held at [a detention centre], make the following statement:

   Introduction

   1.        I am a citizen of Iraq. I do not have a right to citizenship or a right to reside in any other country.

   2.        I am an Arab and a Shia Muslim.

   3.        I was born on [date] in [Kuwait]. At the time of my birth I was stateless. I went to Iraq to look for my brother [who] who had been captured by the Iraqi forces during the invasion of Kuwait in 1990. I was in Iraq and the border was closed and as I was stateless I could not return to Kuwait.

   4.        In 1991 1 became and (sic) Iraqi citizen because I had some Iraqi ancestors. My parents and siblings remained in Kuwait and are still stateless.

   5.        I am married with one child. The country to which I fear returning

   6.        I fear returning to Iraq.

   Why I left that country

   7.        When I settled in Iraq I purchased a car and became a taxi driver. I would take passengers to other cities in Iraq such as Baghdad. I would also transport passengers within Basrah. I was able to make a living doing this kind of work but nothing substantial. I had to work hard and get lots of passengers.

   8.        Since 2003 after the collapse of Saddam Hussein's regime and the American invasion my work has become very dangerous and this is due to the sectarian violence. To avoid problems I had to stop transporting passengers to other cities within Iraq and worked in my local area, taking passengers between [location] and Al Basrah. Because of this my income decreased and things became more difficult financially for my family.

   9.        Transporting passengers within the Shia areas is relatively safe however if I travel to a Sunni area with a passenger I am always putting my life at risk. The danger will come from Sunnis because I am a Shia or from Shias who will see me as helping Sunnis. I have no choice but to continue going into the Sunni areas because otherwise I cannot feed my family. It is a very stressful life.

   10.      In early 2011 I was travelling from [location] to Al Basra. I did not have a passenger. It was [at] night. A car was travelling parallel to me. I saw [people] with their faces covered in this car. They drove closer to me and forced me over to the other side of the road. Their car hit mine and I knocked my head badly. I turned around quickly and drove home fast. They did not follow me.

   11.      About one month after this I was again travelling from [location] to Al Basra  [at] night. I had a friend with me. A car was traveling very close to me; the driver and the [others] in the car were indicating to me to pull over. Their faces were again covered. My friend advised me not to stop. I sped up and we drove fast to Al Basra.

   12.      A third incident occurred about one month before I left Iraq. My wife, son and I visited my uncle. On our return I found a letter; it was in an envelope and it had been placed under the door. The letter said. 'we will kill you'. I went to the local police. They told me they couldn't do anything. I believe this threat may have come from a Sunni militia group who want to harm me because l am Shia.

   13.      After this we moved to my wife's uncle's house. I decided it was no longer safe to remain in Iraq after these attacks and fled Iraq.

   What I fear may happen to me if return to that country and why. Who .I think may harm/mistreat me in that country and why. Why I think the authorities of that country cannot or will not protect me if I were to go back to that country.

   14.      I fear I will be killed if return to Iraq. I believe that one of the militant groups operating in my area will try to kill me. Working as a taxi driver it is very dangerous and the different groups might want to harm me because I am either carrying a Sunni or Shia passenger. Otherwise the Sunni militia will target me for being a Shia.

   15.      There is no other work for me to do as there is high unemployment in Iraq. I have not (sic) other skills and I will be prevented from making a living due to the ongoing sectarian violence.

   16.      The authorities are powerless against the militant groups and the militant groups also have influence or members in the government. It is very corrupt in Iraq and there is no real democracy.

   Why I think relocation to another area in my country is not a reasonable option.

   17.      It is not a reasonable option for my family and me to relocate to another area in Iraq. We have no relatives or family elsewhere to provide us with support and assistance. There is too much instability in Iraq and the sectarian violence is ongoing.

4. [In] September 2012, the applicant lodged an application for a Protection Visa (subclass 866). In Form 866C, in response to questions in relation to his reasons for claiming protection, the applicant stated that he is seeking protection in Australia so that he does not have to go back to Iraq. In response to questions 43 to 48, the applicant stated ‘See attachment’, referring to the statement of [Feb] 2012.

5. [In] August 2016, in accordance with s.107 of the Act, the applicant was issued with a Notification of Intention to Consider Cancellation under Section 109 (NOICC). The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act.

6. The NOICC set out the applicant’s statement of [February] 2012 and reproduced his responses to questions 42-48 of his Form 886C. The NOICC noted that, [in] October 2012, the applicant was granted a protection visa on the basis of the information provided in his statement of [February] 2012 and Form 886C of his application for a protection visa. The NOICC stated:

   Following the grant of your visa you have departed Australia on two occasions.

   You departed Australia [in] January 2013, four months after the grant of your Protection visa and returned [in] June 2013. On your outgoing departure card you stated that you were travelling to Iraq.

   You also departed Australia [in] March 2014 and returned [in] August 2014. On your outgoing and incoming passengers cards you stated that your destination was Iraq and you intended to spend three months there.

   Upon your return to Australia you were spoken to by Immigration officers at[an Australian airport]. During this discussion you provided them with your Titre De Voyage [which] was issued [in] 2014 and expired [in] March 2016. This document contained an arrival stamp from [Iraq] dated [in] March 2014 and a departure stamp, also from [Iraq] dated [in] August 2014.

   Given these movements it appears that you have provided incorrect information with your application for a class XA subclass 866 Protection Visa…

   I therefore consider that you have not complied with section 101(b) of the Act because you have provided incorrect information to the following questions on the Form 866:

   Question 43 asks "Why did you leave that country?" You have claimed in your statement that you left Iraq as you received threats from Sunni militia groups, however, you have since returned to Iraq on two occasions for a total of 10 months.

   Question 45 asks "Why do you think this will happen to you if you go back?" you claimed in your statement that you feared you would be killed if you returned, however, you have since returned to Iraq twice for a total period of 10 months.

   Question 46 asks "Who do you think may harm/mistreat you if you go back?" you have claimed in your statement that you fear you would be targeted by the Sunni militia, however, you have since voluntarily returned to Iraq twice.

   Consequently, I consider that you have not complied with section 101(b) of the Act as it appears that you have not provided correct information to questions on the application form.

7. In response to the NOICC, the applicant’s then representative provided a submission, dated [in] September 2016.  It was submitted that, whilst returning to the country of nationality may raise credibility concerns, the return does not conclusively establish lack of credibility. The situation in Iraq is still dangerous and the applicant risked his life to go back in order to be with his ill wife and son. They have ‘no one who truly care for them’. There were exceptional circumstances beyond his control. In Iraq, the applicant was cautious not to go out in public and not expose himself to any risks. He did not attend to ‘regular activities’ and stayed at home to look after his wife and son. The applicant travelled to Iraq on two occasions within 12 months. There were ‘one-off exceptional events (surgical operations) that happened one after the other and in a very short period of time’. It was submitted that the applicant’s ‘courage’ and commitment to his family should be ‘given credit’.

8. The applicant also submitted a statutory declaration, dated [in] September 2016. The applicant stated that he has been truthful and he has not given any incorrect information to the Department in relation to his protection claims. After the grant of his protection visa, his wife became ill and a ‘surgical operation’. He had no option but to go back and support her physically and emotionally. During his stay in Iraq, he remained inside the house and avoided going out in the public. As soon as his wife started to feel better and her ‘self-confidence was up again’, he returned to Australia. Then his son became ill and required a ‘surgical operation’. He had no option but to return to Iraq to support his son and his wife as ‘they have no one who cares but him’. He remained inside the house at all times and did not go outside. He returned to Australia as soon as his son felt better and regained his self-confidence. These events were beyond his control. During his stay, at all times he stayed ‘at our residence’ and the government was unable to provide effective protection for Shias against extremists Sunnis. He ‘always stayed at home’ looking after his wife and son.

9. In a further statutory declaration, dated [in] September 2016, the applicant stated that, after receiving the NOICC, he contacted his wife and asked her to obtain medical evidence explaining his two trips to Iraq. He received certified translations of the reports [in] September 2016. The applicant also provided translations of two letters from [a doctor], Specialist in General Surgery. The first letter, dated [in] January 2013, stated that he had carried out a ‘surgical operation’ on [the applicant’s wife] in relation to multiple ‘[medical conditions]’. The second letter, dated [in] March 2014, stated that he had carried out an operation on [the applicant’s son] in relation to an ‘[another medical condition]’.

10. In a further submission, dated [in] November 2016, the applicant’s representative essentially repeated what was stated in his previous submission. He stated that the applicant had no option but go back to care for his wife and son as they have ‘no one who truly care for them’. He added that the applicant comes from a low socio-economic background and did not complete his schooling. He is not ‘a very switched on individual’ and no one advised him that his return to Iraq may jeopardise his residency.  The applicant did not make claims against the Iraqi government and he did not provide incorrect information at the time of lodging his application for a protection visa. The applicant has ‘a good life in Australia’ and he has been ‘a good resident of the country’. He is a ‘respectful’ resident and has been ‘complying’ with Australian laws. He has no offences recorded against him. The applicant is also suffering from [medical conditions]. The cancellation of his visa will result in the deterioration of his physical and psychological health.

11. [In] January 2017, the Department commenced an International Treaties Obligations Assessment (ITOA) in relation to the applicant.

12. [In] February 2017, the applicant’s representative responded to the notification of the commencement of the ITOA and provided further information in relation to the NOICC. It was stated in the response that the applicant returned to Iraq on two occasions due to his wife and son’s medical conditions. His wife has no family, relatives or close friends in Iraq and the applicant had ‘no option’ but to go back. During his stay in Iraq he ‘made arrangements to stay with the wife and the son in a remote/quiet/isolated farm’, [distance] kilometres outside of Basra. He avoided going outside of the farm. He also had the benefit of some assistance from a close [friend], who helped the family with transport and shopping. As a result, the applicant did not come to the attention of ‘Sunni/extreme militias’. The applicant has not been back to Iraq since his last visit. It was submitted that the situation in Iraq remains unstable and sectarian violence continues to occur. He remains fearful of returning to Iraq.

13. The applicant submitted a number of medical notes, dating back to 2013, indicating that he has a past history of [medical conditions].

14. [In] February 2017, a delegate of the Minister found that Australia does not have non-refoulement obligations in respect of the applicant.

15. [In] March 2017, a delegate of the Minister, after considering the prescribed circumstances, decided to cancel the applicant’s visa. The delegate found that the applicant had provided incorrect information ‘as is evidenced by his voluntary return to travel to Iraq without any issues’.  

16. The applicant appeared before the Tribunal on 5 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.  

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

17. 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.

18. 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.

19. Having regard to the terms of the NOICC and the information referred to in the notice, 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. The Tribunal is also satisfied that the nature of the non-compliance was sufficiently particularised for the applicant to respond to it.

20. 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) referred to in the s.107 notice as set out in the NOICC.

21. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[1] Whilst a visa holder, whose visa is being considered for cancellation, must be invited to show that the ground for cancellation does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA, the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[2]

    [1] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.

    [2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

22. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.

23. In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences to a party, the Tribunal is free to consider the evidence and other materials before it.[3] In that case, Flick and Perry JJ said that:

    The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[4]

    [3] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

    [4] At [120]

24. The Tribunal is not bound to apply the principle in Briginshaw v Briginshaw that the strength of evidence necessary to make a finding may be greater if the consequences of that finding are serious, but it is not prohibited from applying it if it sees fit. [5] The Court noted that s.33(1)(c) of the Administrative Appeals Tribunal Act 1975, which provided that the Tribunal is not ‘bound’ to apply rules of evidence, was not a prohibition upon the tribunal applying those rules. It said that imposing a requirement for the Tribunal to apply the rule in Briginshaw in making its factual findings, would be an unnecessary constraint upon the freedom of the tribunal to employ such procedures at it sees fit in undertaking its fact-finding role.[6]

    [5] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [121], referring to Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362, ‘… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…’.

    [6] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [122].

1. In the present case, for the following reasons, the Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice.

2. The Tribunal appreciates the serious consequences which flow from the decision that the applicant’s visa is liable to be cancelled on the basis that he gave incorrect answers in his application for a protection visa. The Tribunal also appreciates that, broadly, an applicant’s act of returning to the country where they claim to fear being persecuted may raise questions in relation to his or her subjective fear of harm and the credibility their claims for protection. However, the mere fact of return is not necessarily inconsistent with the claimed fear. The individual circumstances of the case and the precise claims which were made must be carefully examined. 

3. At the Tribunal hearing, the applicant was asked questions in relation to his reasons for leaving Iraq in 2011. He told the Tribunal that he moved into his father-in-law’s house in 2001 and remained there for 10 years, until his departure from Iraq in 2011. Later in the course of the hearing, the applicant stated that he moved into his father-in-law’s house in 2003 and remained there until 2011 when he departed Iraq for Australia. He said, although he lived in a separate section of the house, he shared the house with his wife’s parents and her siblings. He said he moved in with his in-laws after a written threat was delivered to him at his rented accommodation. In 2010, he received another threatening note, which was delivered to his father-in-law’s house. He had received no other threats. He said that, a few weeks after receiving the threatening letter in 2010, he was driving his taxi, when another car drove next to him and forced him off the road. The occupants of the car pointed a pistol at him. The window of his car was shattered and he was injured. He did not complain to the authorities in relation to these incidents because the authorities don’t do anything. When he decided to leave Iraq, his wife and son remained in the house he shared with his in-laws.

4. It was put to the applicant at the hearing that his evidence to the Tribunal was inconsistent with the contents of his statutory declaration [in] February 2012. The applicant was reminded that in his statutory declaration he had referred to a third incident. This incident involved the applicant and a friend were travelling in the applicant’s taxi when they were followed by another vehicle and the occupants indicated to the applicant to stop. The applicant was also reminded that in his statutory declaration he had claimed to have approached the local police to seek help. The applicant responded that the contents of his statement were true and that he had forgotten to mention these matters to the Tribunal.  The Tribunal put the above information to the applicant in a s.424A letter. The Tribunal, however, did not receive a response from the applicant.

5. The Tribunal finds the explanation offered by the applicant at the hearing highly unpersuasive. The Tribunal does not accept that the applicant had simply forgotten critical incident that he claimed to have led him to depart Iraq. The applicant’s evidence at the hearing suggests that he had provided incorrect information in his application for a protection visa.

6. In reaching the above view, the Tribunal has taken into account the applicant’s willingness to return to Iraq on two separate occasions in 2013 and 2014, as well as other problematic aspects of his evidence in relation to his return to Iraq.

7. In the present case, the Tribunal is prepared to accept that concerns over the health of his wife and his son might have informed the applicant’s decision to return to Iraq in 2013 and 2014. In his responses to the NOICC, including in his statutory declaration [in] September 2016 and in his then representative’s submissions [in] September 2016, [November] 2016 and [February] 2017, it was stated that the applicant felt compelled to return to Iraq because his wife and son have no one who cares for them and that his wife has no family, relatives or close friends in Iraq. In his submission of [February] 2017, the applicant’s representative also stated that during the applicant’s stays in Iraq in 2013 and 2014, he ‘made arrangements to stay with his wife and son in a remote/quiet/isolated farm’, [distance] kilometres outside of Basra.

8. At the Tribunal hearing, the applicant gave evidence to the effect that, in Iraq, he resided in the same house as his wife’s parents and her [siblings]. He stated that, when he departed Iraq in 2011, [his] wife’s siblings were still residing in the same house. He stated that, when he left Iraq, he left his wife with her family. He stated that his wife’s siblings continue to reside in the same locality in Iraq. He stated that, during his stays in Iraq in 2013 and 2014, he resided in the same house he shared with his in-laws, explaining that his father-in-law had died after the applicant’s return to Australia following his second trip to Iraq.

9. When the above inconsistencies were put to him at the hearing, he said at the time of his wife’s surgery, she had a dispute with her siblings. When pressed, he said he had told the Department that his wife has family in Iraq. His representative had responded to the Department on his behalf and he did not know what his representative had said. The Tribunal does not find these explanations satisfactory. The applicant did not provide any other explanations for the obvious inconsistencies in his evidence.

10. Whilst the Tribunal is prepared to accept that the applicant’s wife had a surgery to treat ‘ovarian cysts’ in January 2013 and that his son had an operation relating to ‘intestinal obstruction’ in March 2014, the Tribunal does not accept that he had felt compelled to return to Iraq because his wife and son had no one to look after them. The Tribunal does not accept that he had resided somewhere outside of Basra during his return trips to Australia. The Tribunal is of the view that the applicant’s evidence in this regard is manifestly false. The Tribunal considers the fact that the applicant returned to Iraq twice for a total period of 10 months logically supports the conclusion that he did not in fact fear being harmed or killed by Sunnis, including Sunni militia groups as he had claimed in the statement accompanying his application for a protection visa.

11. Having carefully considered the evidence before it, the Tribunal did not find the applicant to be a credible and truthful witness. The Tribunal does not accept that the applicant was followed, forced off the road, threatened with a pistol, experienced property damage or suffered harm at the hands of Sunni militias while working as a taxi driver in Iraq. The Tribunal does not accept that he was ever threatened in any way by Sunnis in Iraq. The Tribunal does not accept that he feared being killed by Sunni militias. The Tribunal does not accept that the applicant had no option but to return to Iraq to support his son and his wife as ‘they have no one who cares but him’. The Tribunal does not accept that he had resided in a farm outside of Basra during his return trips to Iraq. The Tribunal does not accept that he had he remained inside the house and avoided going out in the public during his stay in Iraq.

12. In the present case, the Tribunal is satisfied that the applicant had provided incorrect information in his statement [in] February 2012 in relation to the threats he claimed to have been subjected to, the harm he claimed to have suffered and the reasons he claimed to have prompted him to leave Iraq. The Tribunal is satisfied that the applicant had also provided incorrect information in his statement [in] February 2012 in relation to the circumstances of his family in Iraq. The Tribunal is satisfied that the applicant provided incorrect information in response to Questions 43, 45 and 46 of his application for a protection visa. The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

13. 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). In exercising its discretion, the Tribunal has considered the applicant’s responses to the s.107 notice about the non-compliance. The Tribunal must also have regard to the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 and to the other matters required to be considered as a matter of government policy as set out below.

    The correct information

14. The Tribunal considers that the correct information is that the applicant was not followed, forced off the road or suffered harm at the hands of Sunni militias while working as a taxi driver; that he did not receive threats from Sunni militias, that he did not fear being killed at the hands of Sunni militias and that he and his family did not move to his wife’s uncle’s house before he first departed in Iraq.

    The content of the genuine document (if any)

15. This consideration is not relevant in this case.

    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

16. The Tribunal is of the view that the information provided by the applicant in his application for a protection visa and the statement [in] February 2012 was central to the grant of the protection visa.

    The circumstances in which the non-compliance occurred

17. The applicant has persistently maintained that he did not give incorrect information to the Department in his application for a protection visa and the accompanying statement, so he has not provided any mitigating circumstances to explain why he would have done so. 

    The present circumstances of the visa holder

18. The applicant has given evidence that he suffers from a range of physical ailments and that he is not well psychologically.

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

19. As noted above, the applicant has maintained that he did not give incorrect information to the Department in his application for a protection visa and the accompanying statement.

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

20. On the basis of the evidence before the Tribunal, there are no other instances of non-compliance by the applicant known to the Minister.

    The time that has elapsed since the non-compliance

21. The relevant non-compliance in the present case took place when the applicant made his application for a protection visa in September 2012, so 5 years have elapsed since then.

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

22. On the basis of the evidence before the Tribunal, the applicant has not breached the law since the relevant non-compliance.

    Any contribution made by the holder to the community

23. The applicant told the Tribunal that he respects the law and helps others because it was his nature to do so. 

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations under relevant international agreements

24. For the reasons outlined earlier, the Tribunal considers that the applicant had provided incorrect information in his application for a protection visa and the accompanying statement. The Tribunal, therefore, does not accept that the applicant was followed, forced off the road or suffered harm at the hands of Sunni militias while working as a taxi driver. The Tribunal does not accept that he received threats from Sunni militias. The Tribunal does not accept that he feared being killed at the hands of Sunni militias in Iraq. The Tribunal does not accept that Sunni militias will target him for being a Shi'a.

25. In his response to the Department’s notification of the commencement of the ITOA, the applicant’s representative submitted that the situation in Iraq remains unstable and sectarian violence continues to occur. At the hearing the Tribunal discussed with the applicant the information contained in the most recent DFAT Country Information Report in relation to Iraq. According to DFAT:

    As the majority community in Iraq with a dominant role in the Government, Shias face little to no official discrimination in government-controlled areas. In these areas, DFAT assesses that reported instances of societal discrimination are likely to be associated with patronage and nepotism, such as not having the right contacts to secure access to jobs or housing… DFAT assesses that official and societal discrimination against Shias is low, particularly in Shia areas. Shias in Baghdad face a moderate risk of violence, whereas Shias in other Shia areas (such as the south) face a lower risk of violence…

    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…

    Lack of employment remains a significant issue in southern Iraq, despite the large scale oil industry and associated economic activity. In-country contacts suggest that there are limited employment opportunities and that people from southern Iraq are internally relocating to other areas of Iraq, such as Baghdad, in search of jobs. Lack of services (such as electricity and water) has been an increasing issue in the south. [7]

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

26. The applicant responded that, during his trip to Iraq in 2013, there was an explosion in a market in [location]. The Tribunal accepts that such explosion might have occurred in [location]. According to DFAT, however, this type of violence targeted at Shias is particularly prominent in Baghdad and that Shias in the Shia-dominated provinces of southern Iraq are at a low risk of generalised violence. The Tribunal appreciates that there are limited employment opportunities in the south and that lack of services has been an increasing issue. However, on the basis of the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will be denied the capacity to earn a livelihood of any kind or that he will be denied access to basic services, where the denial threatens his capacity to subsist. Nor is the Tribunal satisfied that there is a real chance that he will face significant economic hardship that threatens his capacity to subsist. The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for one of the five reasons mentioned in paragraph 5J(1)(a) of the Migration Act. The Tribunal is not satisfied that there is a real risk that the applicant will be significantly harmed because he is a Shia Muslim. The Tribunal does not accept that there is a real chance or a real risk that the applicant will be persecuted or killed or subjected to torture or to cruel, inhuman or degrading treatment or punishment because of his religion as a Shia Muslim if he returns to Iraq. The applicant did not advance any new claims for protection at the hearing and the Tribunal finds that there are no obligations under relevant international agreements which will be breached if his visa is cancelled.

    Whether there are persons in Australia whose visas would, or may, be cancelled under section 140

27. There are no persons in Australia whose visas would, or may, be cancelled under section 140.

    If there are children in Australia whose interests could be affected by the cancellation, delegates are obliged to treat as a primary consideration the best interests of the children

28. There are no children in Australia whose interests could be affected by the cancellation.

    Whether there are mandatory legal consequences to a cancellation decision

29. The Tribunal accepts that as a consequence of the cancellation of his visa the applicant will become an unlawful non-citizen and that he will be liable to be detained. However, the applicant is a citizen of Iraq. He travelled to Iraq on two separate occasions following the grant of his protection visa and the Tribunal considers that he will be able to return to Iraq. The Tribunal does not accept that indefinite detention is a likely consequence of the cancellation decision. 

    Conclusions

30. For the reasons set-out above, the Tribunal has found that the applicant provided incorrect information in his application for a protection visa and the accompanying statement. The Tribunal has found that the decision to grant the applicant a protection visa was based on the incorrect information which he provided. Having carefully considered to all of the relevant circumstances, the Tribunal finds that the applicant’s visa should be cancelled.

    DECISION

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

    Shahyar Roushan
    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.