1706817 (Refugee)

[2017] AATA 1115

1706817 (Refugee) [2017] AATA 1115 (26 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706817

COUNTRY OF REFERENCE:                  Iraq

MEMBER:R Homan

DATE:26 June 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 26 June 2017 at 5:04pm

CATCHWORDS

Refugee – Cancellation – Protection visa – Iraq – Incorrect answers on Protection visa application – Return to Iraq – Seriously ill mother – Exceptional circumstances for return

LEGISLATION

Migration Act 1958, ss 101-105, 107, 108, 109(1)
Migration Regulations 1994, Schedule 2, Condition 8559

CASES

MIAC v Brar (2012) 201 FCR 240
Salama v MIBP [2016] FCCA 540

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 as he gave incorrect answers in the application form he used to apply for the protection visa. The issue in the present case is whether that ground for cancellation is made out.

3. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

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

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

6. The evidence before the Tribunal indicates that the delegate sent the applicant a Notice of Intention to Consider Cancellation under s.109 of the Act, which was dated [in] January 2016, although it appears the correct date should have been [in] January 2017.

7. The Tribunal has considered whether the error in the date of the s.107 notice has affected the notice’s compliance with the requirements of s.107(1)(b) of the Act. Subsection 107(1)(b) requires that the notice state the period within which the visa holder may give the Minister a written response to the notice. The period stated in the notice in this case referred back to the date of the letter:

   “You must provide your response in writing within fourteen (14) calendar days after you are taken to receive this letter.

   …

   As this letter was sent by mail from a place in Australia to an address in Australia, you are taken to have received this letter seven (7) working days after the date of the letter.” (emphasis added)

8. 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[1] 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.

   [1] (2012) 201 FCR 240, overturning Brar v MIAC [2011] FMCA 435 (Driver FM, 28 July 2011).

9. Similarly, in Salama v MIBP,[2] the Court dismissed the former visa holder’s argument that the s.107 notification did not comply with s.107(1)(c)(ii),[3] 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.[4]  

   [2] [2016] FCCA 540 (Judge Smith, 18 March 2016).

   [3] Salama v MIBP [2016] FCCA 540 (Judge Smith, 18 March 2016) at [19]. The Court held that while the s.107 notification did not replicate the words of s.107(1)(c)(ii) (i.e. if the holder responds to the notice, the Minister will consider cancelling the visa when the response is given), the stipulation that the response had to be provided in writing within 14 calendar days and that the written response ‘will also be taken into account’ constituted an unequivocal statement that the Minister would consider cancellation if the applicant gave a response within the required period.

   [4] Salama v MIBP [2016] FCCA 540 (Judge Smith, 18 March 2016) at [23].

10. The applicant in this case did respond to the s.107 notice within what should have been the correct period. The Tribunal is satisfied that the applicant was not denied an opportunity to respond to the notice as a consequence of the error. In the circumstances, and having regard to the authorities set out above, the Tribunal finds that the error in dating the notice did not have the effect of invalidating the notice.

11. The Tribunal is further satisfied that the delegate had reached the necessary state of mind to engage s.107 and, notwithstanding submissions to the contrary by the applicant’s representative at the Tribunal hearing, that the notice issued under s.107 contained sufficient particulars to enable the applicant to identify and address the issues.

12. The Tribunal finds that the notice issued under s.107 complied with the statutory requirements.

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

    Particulars of non-compliance

13. The next question for the Tribunal is whether there was non-compliance in the way described in the s.107 notice.

14. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act, which provides that “a non-citizen must fill in his or her application form in such a way that… no incorrect answers are given”.

15. The applicant applied for a protection visa [in] July 2011. According to the evidence set out in the s.107 notice, the applicant gave the following answers to questions asked in the Form 866C which he used to make the application:

    ·Question 41: I am seeking protection in Australia so that I do not have to go back to (country) – ‘Iraq’.

    ·Question 42 – Why did you leave that country? – ‘I have a fear of being persecuted in Iraq – see statement’.

    ·Question 43: What do you fear may happen to you if you go back to that country? – ‘I fear I may be killed if I go back to Iraq – see statement’.

    ·Question 44: Who do you think may harm/mistreat you if you go back? – ‘The Shia militia in Iraq will kill me – see statement’.

    ·Question 45: Why do you think this will happen if you go back? – ‘I have received credible threats against my life – see statement’.

16. The applicant declared at Question 65 that the information supplied in the form was complete, correct and up-to-date in every detail.

17. In the statement submitted with the application, the applicant claimed to be an Iraqi national of Arabic descent and a Sunni Muslim. The applicant said that he was born in [City 1], south of the capital Baghdad and that his late father was also a Sunni Muslim. The applicant’s mother was a Shia Muslim.

18. The applicant claimed that his father was a member of Saddam Hussein’s Ba’ath Party and worked as a [occupation] in [workplace] for between [number] years. The applicant’s father was responsible for [certain duties]. During the invasion of Iraq in 2003, the [workplace] was bombed by US forces and the applicant’s father was forced to remain at home. After this, and because of his membership of the Ba’ath Party and Sunni Muslim religion, the applicant’s father was targeted by Shia militia groups.

19. In 2004, the applicant claimed his family home was sprayed with bullets. The applicant expressed the belief that a Shia militia group was responsible. The applicant’s family relocated to the home of a relative and then went to [City 2]. The family were able to remain there without incident for around [number] years as the applicant’s mother was a Shia Muslim and the Shia community believed the family were all Shia Muslims. The applicant remained in [City 1] but moved locations, staying with friends and family in order to stay safe.

20. The applicant’s father applied for retirement benefits in February 2010 and shortly afterwards began to receive threatening letters at the house where his family was staying. The applicant claimed that this happened because his father had revealed his name to the authorities, who recognised him as a Ba’ath Party member. The applicant claimed that [letters] were sent to his father’s place of residence between February 2010 and April 2010, ordering him to leave the country or else face serious consequences. The applicant’s father was shot and killed [in] June 2010 on his way home from work. The applicant’s father’s death was confirmed by a death certificate submitted with the application. The applicant expressed the belief that his father was killed by a member of a Shia militia group.

21. The applicant claimed that his uncle had advised him that [on two occasions in] July 2010, letters were sent to the family’s home making threats against the applicant. The applicant believed the letters were from the same people who targeted his father. The applicant believed that he was being targeted as the son of a Ba’ath Party member. Copies and English translations of the letters were attached to the statement. The applicant left the place in which he had been living and began residing with family and friends. Later, the applicant decided to flee the country. Through his uncle’s contacts, the applicant obtained a false passport and travel to [Country 1].

22. In granting the visa, the delegate accepted that the applicant had a well-founded fear of persecution in Iraq and that state protection and relocation were not options for the applicant.

23. According to the s.107 notice, departmental records show that the applicant departed Australia [in] January 2015 and remained outside the country until [date] December 2015. The applicant’s outgoing and incoming passenger cards declared that the applicant would be spending most of his time abroad in Iraq. Upon return to Australia, the applicant was interviewed by an Australian Border Force officer at [an] Airport in [Australia]. The applicant’s Titre de Voyage indicated that he entered Erbil International Airport [in] January 2015 and departed from Najaf International Airport [in] December 2015.

24. Based on the applicant’s lengthy stay in Iraq, without apparent issue, the delegate formed the view that the applicant had provided incorrect answers at Questions 42, 43, 44 and 45 of Form 866C. By voluntarily returning to Iraq and remaining there for 11 months, the delegate formed the view that the applicant’s answers, that he would be persecuted or killed by Shia militia groups because he was the son of a Ba’ath Party member who had also been targeted and killed by one of these groups, were incorrect.

    Applicant’s written response to s.107 notice

25. The applicant responded to the s.107 notice through his representative [in] January 2017.

26. The applicant’s representative made mention in his submissions to a condition for protection visas introduced on 3 June 2013, which requires visa holders not to enter the country by reference to which the holder was found to be a person in respect of whom Australia has protection obligations, unless the Minister has approved the entry in writing. Visa holders must demonstrate “exceptional circumstances” to the Minister for needing to travel to their home country. A breach of this condition would provide a ground for cancelling the visa under s.116 of the Act, although it was noted that the condition did not apply to the applicant in this case.

27. The representative set out the legislation, case law and policy applicable in the applicant’s case and made the following submissions:

    ·The applicant maintained that he completed his application form correctly and denied having failed to comply with s.101 of the Act. The applicant maintained that he has a well-founded fear of persecution in Iraq.

    ·The applicant returned to Iraq for compelling reasons, namely to visit his ill mother. As his mother’s [son], the applicant wished to see her before she died.

    ·The applicant spent all of his time in Kurdistan and provided evidence of this in the form of a rental agreement for a house in Erbil; his travel document containing an entry stamp from Erbil airport; and airline tickets and boarding passes showing travel to Erbil.

    ·The applicant’s [uncle] and aunt brought his mother to Erbil in order for her to see the applicant, The applicant’s mother spent all her time in Erbil apart from a few trips to Baghdad in order to see her doctor. The applicant never left the Kurdish area owing to a fear for his safety.

    ·The applicant was only permitted to remain lawfully in Erbil for four weeks. As he had overstayed his visa, he made arrangements to fly to Najaf using his Iraqi ID so that it would not have to show his Australian travel document to the Kurdish authorities. The applicant only transited in Najaf and did not leave the airport.

    ·The applicant advised the Department of his intention to travel to Iraq owing to his mother’s illness in the context of applying for a travel document.

    ·The applicant returned to Iraq after almost 4 years from the date of grant of the protection visa.

28. The medical evidence submitted to the Department includes one document, dated October 2009, referring the applicant’s mother for follow up examinations and procedures with respect to [medical condition]. There are three documents containing MRI and ultrasound results in which the date is written in Arabic. There are also two 2013 test results, one which suggests [result] and one which states that there was evidence of a suspicious area in the patient’s [body] upon ultrasound. Two ultrasound images, dated in April 2015 were submitted, as was a 2016 document issued by [a health service], in which the applicant’s mother is said to have been suffering from [medical condition] and in need of a carer as her impairment was 100%.

29. A translated rental contract was also submitted indicating that the applicant had taken out an 11 month lease from [January] 2015 until [December] 2015 on a property in Erbil City.

    Delegate’s decision about non-compliance

30. The delegate found that the applicant did not comply with s.101(b) of the Act as the applicant had provided incorrect answers to questions 42, 43, 44 and 45 of a Form 866C.

31. The delegate found that the applicant voluntarily travelled to Iraq in 2015 for a total stay of [number] days. The delegate found that this lengthy stay indicated that the applicant was able to travel and stay in Iraq freely without any issue or impediment. The delegate found this to be contrary to the applicant’s protection visa claims that he held an adverse profile as a Sunni Muslim and as a consequence of his association with the Ba’ath Party, because of which he was known to Shia militia groups.

32. The delegate rejected the applicant’s claim that he resided in Erbil in Iraqi Kurdistan for the term of his stay on the basis that it was contrary to various sources country information indicating that long-term relocation to Iraqi Kurdistan required sponsorship and that an Iraqi citizen returning to Iraq from abroad who tried to enter Iraqi Kurdistan would be required to travel onward to the area from which he originated. The delegate gave little weight to the documents submitted by the applicant to demonstrate his residency in Iraqi Kurdistan on the basis that it was contradicted by available country information. The delegate found that it was not credible that the applicant resided in Iraqi Kurdistan for the period of time claimed without registering with the Kurdish authorities as his freedom of movement would have been severely limited if he were to avoid the Kurdish authorities.

33. The delegate accepted that the applicant may have travelled to Iraq solely for the purposes of visiting and spending time with his [ill] mother but was not convinced that his mother, a woman in her [age] who was being treated for [medical condition], spent 11 months with him in Iraqi Kurdistan. The delegate found that the applicant resided with his mother in [City 2] where he would have been known or identifiable. The delegate found that this was evidence that the applicant was not at risk of harm owing to his claimed adverse profile as claimed in his protection visa application.

34. The delegate did not accept that the applicant held the claimed adverse profile at the time of his protection visa application or that he maintained that profile during his stay in Iraq.

    Tribunal hearing – 29 May 2017

35. The applicant appeared before the Tribunal on 29 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

36. The applicant was represented in relation to the review by his registered migration agent, who also attended the hearing.

37. The applicant told the Tribunal that his close relatives in Iraq included his mother and [sibling]. The applicant said his [sibling] was married with [children]. The applicant’s [sibling] lived separately to their [mother]. The applicant said that his mother and [sibling] were both currently living in Samawah, El Mouthana in the south of Iraq. [They] have been living in that location since the death of the applicant’s father in 2010. The applicant’s extended family in that location included aunts and uncles.

38. The applicant confirmed that his mother is Shia Muslim and his father was Sunni Muslim. The applicant said he was not personally committed to his religion but identified as a Sunni Muslim. Asked whether there was anything that could identify him as a Sunni Muslim in Iraq, the applicant said he could be identified as Sunni by his family name.

39. The Tribunal asked the applicant about his return travel to Iraq in 2015. The applicant told the Tribunal that he had almost met the residency requirement for citizenship and was [number] months away from being able to make a citizenship application when he received an urgent telephone call from his mother stating that she was in the Emergency Department at hospital and wanted to see him as soon as possible. The applicant told Tribunal that he went to the passport office and explained his situation. The applicant was instructed to make a written request for a travel document and one was created for him within 10 days. The applicant advised the passport office that he had wished to travel back to Iraq as his mother had to undergo an operation. The applicant booked a ticket to travel to Erbil in the Kurdistan region of Iraq.

40. The Tribunal asked the applicant about what happened upon arrival in Erbil. The applicant said that because he was Australian they allowed him to pass quickly. The Tribunal noted that the applicant was not travelling on an Australian passport but an Australian travel document which did not indicate that he was an Australian citizen. The applicant said he was allowed to enter Kurdistan for a period of one month until a Kurdistan resident sponsored him. The Tribunal asked the applicant if he was asked any questions about the purpose of his travel when he presented his Australian travel document. The applicant said he was asked whether he was an Iraqi citizen to which the applicant responded yes. The applicant was asked whether his name was the same as in the travel document and the applicant agreed that it was. The applicant was asked this if he had evidence of his Iraqi citizenship and said he did not have it but they could ask his relatives. The applicant’s travel document was stamped and he was allowed to stay for one month. After one month, the applicant had to provide a guarantee. The applicant stayed at a hotel for three days then rented a house for one year. The applicant stayed in the house with his mother, uncle and aunt.

1. The Tribunal noted that the delegate’s decision record referred to information about residence requirements for Iraqi citizens in Kurdistan. The delegate had referred to a DFAT report indicating that long-term residents in Kurdistan required a sponsor and residency permit. The applicant agreed and said he had a guarantor or sponsor after one month. The applicant said the landlord of the house he was renting was his sponsor. The sponsor went to the police station to complete the paperwork for the guarantee. Asked whether he still had the paperwork, the applicant said he was not sure whether he still had the documents and said he might have thrown them away.

2. The applicant said that he did not work during the period he was staying in Kurdistan but supported himself financially on the proceeds of the sale [of] land owned by his mother. The applicant’s father’s house in [City 1] was rented and the rental income came to his mother and she supported him.

3. The applicant confirmed that his mother had travelled to Erbil and stayed with him during the period in which he was residing there. The applicant said that she travelled on a plane with her [siblings]. The applicant said his uncle travelled frequently between Iraqi Kurdistan and the applicant’s mother returned to Baghdad every few months to receive medical treatment. The applicant’s mother underwent operations [during] this period. The [medical condition had worsened] and she was certified as having a 100% disability or handicap.

4. The Tribunal put to the applicant that country information before it indicated that the borders between Iraq and Kurdistan are often closed and it has from time to time been difficult for Iraqi nationals to reside in Kurdistan, particularly on a longer term basis. The applicant responded that the applicant’s mother was travelling for medical treatment and she was treated as an exceptional case. Asked whether his mother was required to have a sponsor, the applicant said his landlord had sponsored all of them. The applicant said his mother was in Erbil for most of the 11 months that he was there apart from trips to Baghdad every two or three months.

5. The applicant told the Tribunal that he had originally planned to travel back to Australia from Erbil but there were lots of missiles and the airport was closed. When the airport re-opened, the applicant re-booked tickets and flew from Erbil to Najaf and onto Doha and [Australia].

6. The Tribunal asked the applicant whether Najaf was the closest international airport to the place where his mother was now living. The applicant agreed that it was. Asked why he had chosen to fly out of Najaf, the applicant said there were no international flights out of Erbil at the time. Emirates and Etihad were refusing to fly there because of the war. The applicant was unwilling to travel to Baghdad because he was scared.

7. The Tribunal asked the applicant whether he had access to any documents evidencing his residency permit or his mother’s residency permit in Erbil. The applicant said that he may have such documents in Iraq and said he could ask his mother, aunt or uncle to see if they could send him the papers.

8. The Tribunal asked the applicant whether his mother was receiving any medical treatment while she was in Erbil. The applicant told Tribunal that she was receiving [medical treatment]. Asked whether she had any receipts or other evidence from her medical practitioners in Erbil, the applicant corrected his evidence saying that she only received treatment from medical practitioners in Baghdad. The Tribunal asked the applicant whether he could produce any other documentary evidence indicating that his mother was present in Erbil during the period he claimed to be in that location. The applicant suggested he could and the Tribunal agreed to wait two weeks to receive additional evidence. The Tribunal put to the applicant that the evidence of his departure from Najaf raised suspicion in the Tribunal’s mind as it was the closest international airport to the area in which the applicant’s mother and [sibling] were residing. The applicant said he could not enter the south and had stayed in Erbil. In a discussion about what other evidence might be available to him, the applicant said he had not used a mobile phone but used 10,000 dinar phone cards to make calls whilst in Erbil. The applicant said he had not been receiving correspondence and had not opened a bank account. The applicant said he paid for everything in cash including the rent. The applicant said he had access to limited documentary evidence but undertook to provide what evidence he could.

9. The Tribunal asked the applicant about his mother’s medical condition during the period in which he was in Iraq. The applicant told the Tribunal that her condition was poor. The applicant’s mother was unable to look after herself and her psychological condition was deteriorating. [Details deleted]. Asked about the ways in which he assisted his mother, the applicant said he talked and joked with her, held her hands and her head. The applicant said his aunt had been the main carer as they were living in the same household. Asked about his mother’s current medical condition, the applicant said the [condition had worsened].

10. The Tribunal asked the applicant about the reasons why he had applied for protection. The applicant confirmed that his father was connected to the Ba’ath Party as he was a [occupation] at [workplace] in Baghdad. The applicant’s father was a member of the Ba’ath Party, as were all staff in the [workplace]. The applicant’s father was involved in [certain duties].

11. Toward the end of 2003 or start of 2004, the applicant and his family went to [City 2] and lived there until 2010. The applicant’s father was killed [in] June 2010. Asked about the circumstances of his father’s death, the applicant said he had been instructed to apply for retirement payments. After doing so, he was observed by some other people and shot in the head. The Tribunal asked the applicant if it was correct to say that his father had no particular difficulties in [City 2] until he applied for his retirement payments. The applicant said that his father had received threats for a few months before his death. The applicant said he personally received two threats after the death. Asked about the nature of the threats, the applicant said hand grenades were thrown at the home. The Tribunal asked the applicant whether his father received any threatening letters. The applicant said on a couple of occasions he had found threats written on paper at the house. Asked where he was living at the time of his father’s death, the applicant said he was mostly living in [City 1], where he [worked] but sometimes went to Baghdad.

12. The Tribunal noted that the applicant had submitted copies of death threats with the visa application and asked how he had obtained them. The applicant said a friend had copied them for him. The images had been scanned but the applicant could not recall how he obtained the images. The Tribunal noted that the letters were unusual in that they all appeared to be new, contained no marks and were of uniform appearance. The letters submitted to the Department were a couple of years old. Given the passage of time and the circumstances in which they were received, it surprised the Tribunal that the letters were in such good condition. The applicant told the Tribunal that he recalled that he had two friends [in Australia], one of whom had returned to Iraq and had gone to the applicant’s home to obtain the documents.

13. The Tribunal asked the applicant why he thought he began to receive threats after his father’s death. The applicant said that after the fall of Saddam Hussein, members of the Ba’ath Party were being liquidated. The Tribunal noted that some of the country information it had seen indicated that the threat to former Ba’ath Party members and their associates had diminished by 2010. The applicant said that after the fall of Saddam Hussein his father had worked as a [occupation]. After applying for his retirement payments, the applicant’s father was shot. The applicant said his father had no enemies and he did not know who killed him but it seemed significant that he was killed after he had applied for retirement.

14. The applicant confirmed that he had not been living at his family’s house around the time of his father’s death. The applicant said he had been residing in [City 1] but two days before his father’s death he had visited the house in [City 2] and was there when his father was killed.

15. The applicant told the Tribunal that he did not attend his father’s funeral. The applicant’s uncles were afraid that he would be killed too and so he went to an uncle’s house far away from the area. From there he went to [City 1]. The applicant told the Tribunal that his mother went to an aunt’s house and the next day they buried his father.

16. The applicant told the Tribunal that he received two threats after his father’s death but could not recall exactly when he received them. The applicant suggested it may have been in July or September. The applicant said he received the threats because his uncle continued to go to the family’s house to check on it and he found the letters there. The applicant said he sold his car and got some money from his mother and uncle. The applicant obtained a false passport and left. On the day the applicant was given a passport he left the country through the [Country 1] border.

17. The Tribunal asked the applicant whether there was anything more he wished to say in response to the delegate’s view that his return to Iraq was inconsistent with his claim to fear persecution there. The applicant said that he did not leave Australia for almost four years after he was granted a protection visa. When the applicant applied for a travel document he told them about the reasons for his travel and told them that his mother was sick and needed an operation. The applicant originally planned to travel for 20 days and come back but his mother’s circumstances were very difficult and she was very old. The applicant had not seen her for four years. The applicant felt he had no other option but to stay with her.

18. The Tribunal noted that the applicant had said he intended to stay for only 20 days but he appeared to have entered into a rental agreement quite soon after his arrival in Erbil. The applicant said that he could only rent the house for a period of six months or one year. The applicant initially entered into a six-month agreement. Because the airport was closed, the applicant later extended the agreement. The applicant said he did not have a copy of the initial six month contract but the second contract was drafted to cover the whole year. In fact, the applicant only stayed for 11 months.

19. The applicant denied that he had provided incorrect information in his protection visa application.

20. The applicant’s representative made brief oral submissions. The representative stated that UNHCR guidelines acknowledged that there were circumstances in which refugees may legitimately return to their home country for compelling reasons. The applicant only travelled outside Australia after four years and after being told that his mother was critically [ill]. The representative stated that it was difficult to provide documentary evidence of the applicant’s residence in Erbil as it was a cash economy. The applicant had disclosed in his dealings with the passport office and airport officials that he was travelling to Iraq to see his mother.

21. The representative confirmed that the applicant was a Sunni and his father was a member of the Ba’ath Party. The representative noted that the United Kingdom Home Office report indicated that Ba’athist Sunnis was still being targeted between 2013 and 2016. The report indicated that family members of Ba’athists were also still being targeted. The applicant’s representative undertook to provide a copy of the report to the Tribunal after the hearing.

    Post hearing submissions

22. On 11 and 12 June 2017, the Tribunal received additional evidence and submissions from the applicant’s representative. Amongst the material submitted were an Iraqi identity card and photo ID for the applicant’s mother; a Kurdish Information Card issued [in] 2015 to the applicant’s mother giving her present address [and] her former address as Al Samawah; a scanned copy of an [itinerary] in the applicant’s mother’s name for a return flight departing Baghdad [in] January 2015 for travel to Erbil, returning from Erbil to Baghdad [in] March 2015; a scanned copy of an [itinerary] in the applicant’s mother’s name for a return flight departing Baghdad [in] March 2015 for travel to Erbil, returning from Erbil to Baghdad [in] October 2015; and the United Kingdom Home Office Country Policy Information Note – Iraqi: Baathists, dated November 2016.

23. Amongst other things, the UK Home Office report indicates that most high-ranking Baathists have either fled the country already or been dealt with by the new regime. Whilst there is still an element of score settling, random attacks and discriminatory treatment towards relatives of former Ba’athists, generally such treatment is not systematic. The report indicates that there may be some circumstances in which a person may be at real risk of serious harm or persecution from the state and/or Shia militia because of their Baathists links but that risk depends on what the person or their relative had done and how they were brought to the adverse attention of any potential persecutor.

    Country information

24. The current DFAT Country Information Report for Iraq[5] provides the following advice regarding the security situation in Iraqi Kurdistan:

    The Kurdish region has experienced lower levels of insecurity compared to other areas of Iraq. This may be due to the greater capacity of the Kurdish authorities or the lower levels of ethnic and religious diversity in the Kurdish region. However, there are examples of violent attacks occurring in the Kurdish region and the increasing number of IDPs entering the Kurdish region has strained the Kurdish authorities’ ability to guarantee safety.

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

25. With regard to the ability of Iraqis to relocate to Iraqi Kurdistan, the report states:

    Since 2006, many people have found refuge in the Kurdish region. DFAT is not aware of any official or publicly accessible regulations concerning procedures and practices at checkpoints into the Kurdish region. Admission into the Kurdish region remains at the discretion of the KRG, which has exercised increasing levels of restrictions, including requiring individuals wishing to enter to have a sponsor (although the UK Home Office and in-country contacts note that the implementation of this requirement is often inconsistent in practice).

    ….

    Upon entry into the Kurdish region, returnees are required to register with the Mukhtar Office and the Asayish Office in the neighbourhood in which they would like to reside. Individuals are then issued with an Information Card (i.e. Residency Card) which allows them to move around the Kurdish region freely and access services.

    Sources consulted by a joint fact finding mission to the KRI undertaken by Denmark and the UK between 26 September to 6 October 2015[6] stated that it was possible to enter the Kurdistan region of Iraq without sponsorship, however, in order to work or settle in the region sponsorship was required. Several other sources consulted indicated that the sponsorship requirement had been abolished and two sources indicated that selling sponsorships had become a business.

    Conclusions on non-compliance

    [6] Danish Immigration Service & UK Ministry of Immigration, Integration and Housing 2016, The Kurdistan Region of Iraq (KRI) - Access, Possibility of Protection, Security and Humanitarian Situation, 11 April, p.14 CIS38A8012737

26. The Tribunal finds that the applicant travelled to Iraq and remained there for a period of approximately 11 months between January and December 2015. In his response to the delegate’s s.107 notice and in his evidence to the Tribunal at hearing, the applicant conceded that he undertook such travel. The Tribunal finds on the evidence before it that the applicant has not attempted to conceal his travel to Iraq. The Tribunal finds that the applicant disclosed his intended destination and the purpose of his travel to Australian authorities when applying for an Australian travel document and in completing his outgoing and incoming passenger cards at the airport.

27. The delegate found the applicant’s travel to be inconsistent with the claim made in his protection visa application form that he was unwilling to return to Iraq owing to a fear of being killed or otherwise persecuted. Having carefully considered the evidence, the Tribunal is unable to reach the same conclusion.

28. In assessing the evidence, the Tribunal considers the guidance set out in the UNHCR Handbook On Procedures And Criteria For Determining Refugee Status in relation to the issue of whether a refugee has voluntarily re-availed themselves of the protection of their home country, to be pertinent, albeit not directly applicable to the circumstances at hand:

    125. Where a refugee visits his former home country not with a national passport but, for example, with a travel document issued by his country of residence, he has been considered by certain States to have re-availed himself of the protection of his former home country and to have lost his refugee status under the present cessation clause. Cases of this kind should, however, be judged on their individual merits. Visiting an old or sick parent will have a different bearing on the refugee’s relation to his former home country than regular visits to that country spent on holidays or for the purpose of establishing business relations .

29. As suggested by the applicant’s representative in response to the s.107 notice, this approach is also consistent with the policy intention behind condition 8559, which applies to permanent protection visas granted on or after 3 June 2013.The Department’s PAM3 Guidelines indicate that condition 8559 allows for approval to travel to a person’s country of reference for a short period where ‘compassionate’ or ‘compelling’ circumstances exist justifying the travel, thereby acknowledging that a permanent protection visa holder might be willing to put themselves at risk by returning to their country of reference in certain exceptional circumstances. Whilst condition 8559 does not apply to the applicant, the propositions set out above are, in the Tribunal’s view, useful in considering whether the fact of the applicant’s return to Iraq is compatible with his claim to have feared being killed or persecuted in Iraq.

30. The applicant was granted a protection visa in July 2011 and returned to Iraq in January 2015, some 3 ½ years later. The applicant told the Tribunal that he had been intending to apply for Australian citizenship and that he would have met the residence requirements for citizenship by July 2015. The applicant has claimed that the only reason for his return to Iraq was to spend time with his mother who had been diagnosed with [medical condition] and was due to undergo an operation. The Tribunal accepts on the oral and documentary evidence that at the time the applicant returned to Iraq, his mother was indeed suffering from [medical condition] and required urgent medical treatment. The Tribunal accepts that the timing of the applicant’s departure, being approximately six months before he would have met the citizenship residence requirements, adds weight to the applicant’s argument that he only returned to Iraq for compelling or compassionate reasons.

31. The Tribunal is satisfied that the applicant took a number of precautions when travelling to Iraq and during the period of his stay there, which are indicative of an ongoing fear of persecution. The applicant did not travel to Iraq on an Iraqi passport or travel document. The applicant applied for and was granted an Australian travel document which he used to gain entry to Iraq.

1. The applicant claimed in both his protection visa application and in his evidence to the Tribunal that he previously resided in [City 1] and had family residing in [City 2] within the district of Baghdad. The applicant told the Tribunal and has provided documentary evidence indicating that his only close family members, his mother and [sibling], now reside in Samawah, which is approximately 280 km south-east of Baghdad. The applicant claimed in response to the s.107 notice that he did not return to his home area or the area where his close family members now reside but instead travelled to Erbil, which is a city within Iraqi Kurdistan administered by the autonomous Kurdistan Regional Government (KRG). The Kurdistan region has experienced lower levels of insecurity compared to other areas of Iraq and many Iraqis have found refuge there.

2. The Tribunal is satisfied on the evidence contained in the applicant’s travel document and the airline ticket and boarding pass submitted to the Department that the applicant did enter Iraq at Erbil International Airport. Whilst the delegate was not satisfied that the applicant remained in Erbil during the period of his stay in Iraq, the Tribunal now has before it considerably more oral and documentary evidence to this effect.

3. The evidence now before the Tribunal includes a rental agreement for a home in Erbil, in which the applicant says he resided in with his mother, aunt and, from time to time, his uncle. The applicant has also provided evidence, in the form of airline bookings, of his mother’s travel to and from Erbil during the relevant period. Whilst the applicant has been unable to provide evidence of his own sponsorship or Information Card, he has now produced to the Tribunal his mother’s Kurdish Information Card. The date of issue and the information contained on that card is consistent with the applicant’s oral evidence. Although the applicant has been unable to provide other documentary evidence of his stay in Erbil, such as telephone records, bank transaction records or other bills or invoices, he has given a plausible explanation for why this is the case. The applicant has also given a credible account of the procedures he followed upon entry at Erbil, the manner in which he supported himself during his stay and his living arrangements.

4. The Tribunal has carefully considered the country information relied on by the delegate in rejecting the applicant’s claim to have remained in Erbil. The delegate referred to several sources of country information which indicated that long-term relocation to Iraqi Kurdistan required sponsorship and that an Iraqi citizen returning to Iraq from abroad who tried to enter Iraqi Kurdistan would be required to travel onward to the area from which he originated. The information available to the Tribunal, including that set out above, does not present a clear picture of the legal and policy requirements for an Iraqi national to enter and establish residence in Iraqi Kurdistan. The Tribunal notes that DFAT have amended their advice on this issue in their most recent country information report. Entry to Iraqi Kurdistan appears to remain at the discretion of the KRG. While this has, at certain times, included a requirement for sponsorship, several sources have suggested that that requirement has either been abolished or has been relatively easily to meet, with one source suggesting that the sale of sponsorships has become a business in the region. DFAT currently advise that persons returning to Iraqi Kurdistan would be required to register and would then be then issued with an Information Card (i.e. Residency Card) which would allow them to move around the Kurdish region freely and access services. The Tribunal has before it an Information Card for the applicant’s mother, which is on its face evidence that she was residing lawfully in Kurdistan during the period in 2015 when the applicant claims to have been residing in the same location. In the absence of any other reason for his mother to have been there, the Tribunal considers the card is also strong evidence of the applicant’s presence in that location.

5. The Tribunal is somewhat troubled by the apparent contradiction between the applicant’s oral evidence to the Tribunal and his representative’s written response to the s.107 notice in relation to the issue of whether the applicant was lawfully or unlawfully residing in Erbil and the reason for his departure via the airport in Najaf, which the Tribunal notes is the closest international airport to the applicant’s mother’s home city of Samawah. The representative’s response indicated that the applicant remained unlawfully in Erbil after being granted permission to remain for four weeks and had to depart the country via Najaf so that he would not have to show his Australian travel document to the Kurdish authorities upon departure. In contrast, at the Tribunal hearing, the applicant said he had been sponsored and was living lawfully in the Kurdish region. The applicant has provided evidence of an airline booking for departure from Erbil but told the Tribunal that he was unable to use that ticket because the airport was closed at the time he planned to travel due to missiles in the region. The applicant told the Tribunal that he later departed through Najaf as he was unable to secure an international flight out of Erbil. The applicant’s evidence to the Tribunal was detailed and credible and is consistent with general information available to the Tribunal indicating that Kurdistan airspace was closed to international commercial flights in late 2015 due to military traffic from Russia’s air campaign in Syria[7]. In view of the other evidence corroborating the applicant’s claim that he was residing lawfully within the Kurdish region, the Tribunal prefers the evidence given directly by the applicant to the Tribunal over the written submissions of his representative.

   [7] See International airports in Iraqi Kurdistan closed, temporarily, 23 November 2015 ; Reuters Iraq closes northern airspace over missiles launched at Syria . 23 November 2015 ; and

6. For the reasons given above, the Tribunal is satisfied that the applicant remained in Erbil throughout the 11 months that he was in Iraq. The Tribunal finds that the circumstances in which the applicant travelled to Iraq, including the timing and reasons for his travel, and the applicant’s conduct upon arrival, including his use of an Australian travel document and his residence in an autonomously governed region away from his hometown which was relatively more secure, are not inconsistent with the applicant’s claim to fear persecution in Iraq. The Tribunal finds that by returning to Iraq, the applicant undertook a calculated risk in exceptional circumstances and that upon arrival he took precautions to mitigate that risk.

7. The applicant has also given to the Tribunal an account of his circumstances in Iraq before coming to Australia that was detailed, credible and consistent with the claims set out in his visa application form. The Tribunal notes that the delegate who granted the applicant a protection visa also found the applicant’s evidence at interview to be credible and compelling.

8. There is no other information before the Tribunal to indicate that the answers given by the applicant in his protection visa application were incorrect.

9. Having carefully considered the individual circumstances of this case, the Tribunal is not satisfied that, at the time he applied for a protection visa, the applicant did not fear being persecuted or killed by Shia militia in Iraq as a consequence of his Sunni religion, his father’s association with the Ba’ath Party.

10. The Tribunal is not satisfied that the applicant failed to comply with s.101(b) of the Act by giving incorrect answers in his protection visa application form.

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

    DECISION

12. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

    R Homan
    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.