1712051 (Refugee)

1712051 (Refugee) [2020] AATA 719 (11 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712051
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Rodger Shanahan
DATE:11 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 11 March 2020 at 10:42am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – ground for cancellation – incorrect information in visa application – family name – other names by which applicant is known – religious identity – claimed Sunni faith – credibility concerns – implausibility and inconsistency of claims – family members’ close relationship with Shi’ism – pro-Shi’a social media activities – attendance of Shia holy site – consideration of discretion – integrity of migration program – grant of visa based on incorrect information – knowingly provided incorrect information – best interest of child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 6 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses who attested to his religious identity: The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the applicant 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.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the applicant 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.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
On 20 April 2010 the applicant lodged an application for a Protection visa.
At question 1 of Part B of the Form 866 Application for a Protection (Class XA) visa which asks for details of all persons included in the application, the applicant answered, “[Alias 1]”.
At question 11 of Part B of the Form 866 which asks for details of his family, the applicant stated in part;
·Family name: [Surname 1]
·Given name: [Given name 1]
·Age: [date]
·Relationship to application: Father
The applicant signed the Declaration at page 9 of Part B of the Form 866 which relevantly states in part;
·The information I have supplied on or with this form is complete, correct and up-to-date in every details.
·I understand that if I give false and misleading information, my application may be refused, and any visa issued may be cancelled.
At question 1 of the Application for an applicant who wishes to submit their own claims to be a refugee Part C of the Form 866 which asks, What is your full name? you answered, “[Alias 1]”.
At question 4 of Part C of the Form 866 which asks What other names have you been known by? You did not answer.
At question 13 of Part C of the Form 866 which asks, Your religion you answered “Sunni”.
At question 42 of Part C of the Form 866 which asks, Why did you leave that country? You answered “Please refer to statutory declaration”.
At question 43 of Part C of the Form 866 which asks, What do you fear may happen to you if you go back to that country? You answered “Please refer to statutory declaration”.
At question 44 of Part C of the Form 866 which asks, Who do you think may harm/mistreat you if you go back? You answered “Please refer to statutory declaration”.
At question 45 of Part C of the Form 866 which asks, Why do you think this will happen to you if you go back? You answered “please refer to statutory declaration”.
At question 46 of Part C of the Form 866 which asks, Do you think the authorities of that country can and will protect you if you go back? If not, why not? You answered “Please refer to statutory declaration”.
You signed the Declaration at page 14 of Part C of the Form 866 which relevantly provides in part:
·I, [Alias 1] do solemnly declare: The information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail. I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.
On 22 April 2010 relying on your claims raised as part of your visa application, you were assessed as being owed protection obligations and a Protection (Class XA) subclass 866 permanent Protection visa was granted.
On 9 May 2014 you applied for Australia Citizenship. As a result of further investigations into your identity and claims made during the Protection visa application; it has come to the attention of the Department that you provided incorrect information in your visa application.
In the course of processing your citizenship application, you were asked to provide a number of original Iraqi documents for examination in relation to establishing your identity. It appears that those documents are genuine based on a cursory look by our Document Examination Unit. These documents are:
·Original Iraqi Citizenship Certificate in the name [applicant name] date of birth [date],
·Original Iraqi Civil ID card in the name [applicant name] date of birth [date],
·Original Iraqi Ration Card/Strip listing the applicant’s family group,
·Original Iraqi Family Register List – listing the applicant’s family group, and
·The Iraqi Civil ID cards for the applicant’s siblings and parents
The applicant was interviewed by the Identity section of this Department on two occasions in relation to his identity and claims for Protection. The first interview was conducted on 15 August 2016 and the latest interview occurred on 11 November 2016. The identity officer accepted prima facie the documents the applicant provided to the citizenship area as documents which reflect his identity and nationality. It was accepted that the applicant is an Iraqi citizen and his name as per his Iraqi documents is [applicant name], born on [date].
In relation to his name, he consistently stated that his family name is [Alias 1 surname] however based on the information before the department, the name [applicant name] was believed to be his correct name according to the Iraqi identity documents.
The applicant was asked about his paternal line particularly his father’s brothers. The applicant provided the names and current whereabouts as follows;
·Your father: [Mr A]
·Your uncles: [name deleted] deceased October 2016, [name deleted], currently in Iraq, [Location 1], ‘kidnapped’, [name deleted], deceased 2015
The applicants father’s name as stated in the Identity interview differs to that provided at the Protection visa processing stage. The applicant also stated that his father is currently in [Country 1] attempting to seek protection and his brother [Mr E] is in [Country 2] also attempting to seek protection.
The applicant’s name on his social media profile is [Alias 1]. The applicant confirmed this was his social media site. It was put to him that an image on his social media account depicts him at the Imam Al Abbas Shrine/Mosque in Kerbala in 2007. The holy site is known as a Shia holy site referred to as the ‘Al Abbas Mosque’.
The applicant initially claimed he had never been to any such named mosque or location however when shown the image he acknowledged it was him in the photo and that it is a Shia holy site. The applicant stated that he went to the ‘shrine’ on a pilgrimage to Kerbala; that he had no issues accessing or attending and praying at such a prominent Shia location and that he did not actually pray inside the tomb.
A social media profile in the name [Alias 2] (which is a transliteration of the names provide in Arabic script) depicts the applicant’s father. As he provided copies of his father’s Iraqi Civil Identity card and Iraqi Citizenship card to the Department; the images depicted on these documents were compared with that on the social media site photo and appear to be the same person. The applicant confirmed at the identity interview that this person is his father.
The social media site reveals that the applicant’s father subscribes to the Shia faith and not Sunni faith. A number of Shia related images were found on this site. It was put to the applicant that these images indicate his father is Shia and not Sunni as claimed. The applicant denied this stating all his family including paternal uncles are Sunni.
At the second identity interview the applicant was asked about his father’s religion to which he replied; Sunni. However, the applicant also stated that his father had been to Najaf and Kerbala for pilgrimage. The applicant did not agree that his father having attended at Shia holy sites was indicative of him being a Shia and not Sunni. The applicant repeatedly stated that his paternal uncles and wider family members were Sunnis.
It was put to the applicant that he has links on social media with a person known as [Mr C] (a transliteration from Arabic). The applicant was asked who this person is and he stated he was a ‘cousin’ or ‘son of my aunty or my uncle’. At the identity interview the applicant stated that ‘the mother of [Mr C] is the aunty of [Mr D]’. [Mr D] (a transliteration from Arabic) appears to be his cousin. The applicant refers to [Mr D] as his first cousin, ie; father’s brother’s son. This person also appears to be a Shia.
At the second identity interview the applicant confirmed that [Mr D] (a transliteration of the name from Arabic) was related to [Mr D]. [Mr D] was linked to his social media account via another person named [Mr F] (after the first identity interview this person was deleted from the applicant’s social media account). [Mr F] has links with [Mr D] and [Mr D]. The applicant claimed that [Mr D] is the ‘paternal Uncle’ of [Mr D] however he denied he was related to him which contradicts the available information on social media that indicates he is his first cousin. [Mr D] is also considered to be a Shia.
It was put to the applicant that his brother [Mr B] had been recruited by ‘Asai’b Ahl al-Haq’ an Iranian proxy militia known to have fought in both Syria and Iraq. It was put to him that this group is known for being a highly sectarian Shia organisation and therefore it would be reasonable to conclude that it would not recruit Sunni’s to its ranks. The applicant acknowledged that [Mr B] had been recruited by this organisation.
It was put to the applicant that he has another brother [Mr G] who is Shia. The applicant was shown an image of [Mr G] linked to his father’s social media site. There are images and posts on [Mr G]’s social media site which indicate he is Shia. There is also an image which resembles him, standing outside a Shia shrine. When put to him, the applicant maintained he did not know [Mr G].
The following is a summary of what was found as a result of the Identity interviews;
·The applicant attended at Al Abbas Shrine/Mosque in Kerbala in 2007 which is a Shia holy site commonly referred to as the ‘Al Abbas Mosque’
·The applicant claims that there was no problem or issues with accessing a Shia holy site and praying there
·When mentioning the Imam Al Abbas shrine he exclaimed “God bless him” or similar and also stated “Ali is the gate (to heaven)” which indicates a reverence for Shia iconography,
·The applicant claims that his father goes to Najaf and Kerbala for pilgrimage
·The applicant’s own social media site and that of his father references Shia exhortations
·The applicant’s statements regarding his brother [Mr B] and his recruitment to militia in Iraq “Asaeb Al Haqq” or Asa’ib Ahl-al Haque which is entirely Shia Iranian proxy therefore making it is implausible that such an organisation would engage a Sunni to its ranks,
Based on this information it would appear that the applicant and members of his extended family including his father, are Shia and not Sunni as claimed at time of Protection visa application. The name the applicant provided on entry to Australia and as part of his Protection visa application also does not appear to be his correct name. According to the Iraqi identity documents provided by the applicant to Citizenship section, his name is [applicant name]. This discrepancy in the applicant’s name raises doubts as to his identity.
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 in the following respects regarding his application for a protection visa (detailed discussion of the issues and findings relating to the applicant’s responses follows):
·At question 11 of Part B of the Form 866 which asks for details of his family, he stated in part:
i.Family name: [Surname 1]
ii.Given name: [Given name 1]
iii.Age: [date]
iv.Relationship to application: Father
At the applicant’s identity interview conducted on 11 November 2016 he stated his father’s name is [Mr A]. The name provided at Protection visa application stage differs and this may be because the applicant was attempting to conceal the links to relatives in Iraq.
·At question 1 of the Application for an applicant who wishes to submit their own claims to be a refugee Part C of the Form 866 which asks, What is your full name? the applicant answered, “[Alias 1]”. According to the documentary evidence provided by the applicant, his name is [applicant name]. The applicant also denied this was his name at the Identity interviews.
·At question 13 of Part C of the Form 866 which asks, Your religion the applicant answered “Sunni”. The evidence explained above supports the view that he is a Shia and not a Sunni as he claimed at the time of his Protection visa application.
·At question 42 of Part C of the Form 866 which asks, Why did you leave that country? The applicant answered “Please refer to statutory declaration”. The applicant stated that he was persecuted and threatened because he is Sunni and he fears the Badr organisation specifically because he volunteered his time to help clean and maintain religious sites and the Badr target those associated with Alwaqf Alsuni organisation. I consider the evidence supports the view that the applicant adheres to the Shia faith and did so at the time of his Protection visa application therefore the answer to this question is incorrect.
·At question 43 of Part C of the Form 866 which asks, What do you fear may happen to you if you go back to that country? The applicant answered “Please refer to statutory declaration”. The applicant stated that he could be harmed or worse for reasons of his religion as a Sunni. The applicant stated that he could be kidnapped just like his aunt and cousin. This answer is incorrect if he is found to be Shia and was so at the time of his Protection visa application and therefore it is highly unlikely that these events described in his Protection claims are correct.
·At question 44 of Part C of the Form 866 which asks, Who do you think may harm/mistreat you if you go back? The applicant answered “Please refer to statutory declaration”. The applicant stated he fears persecution from the Badr organisation because of his volunteer work for Alwaqf Alsuni. If he is Shia therefore it is implausible he would have connection to Alwaqf Alsuni, a Sunni organisation.
·At question 45 of Part C of the Form 866 which asks, Why do you think this will happen to you if you go back? The applicant answered “please refer to statutory declaration”. If he is Shia his claims in relation to targeted harm from the Badr organisation are incorrect.
·At question 46 of Part C of the Form 866 which asks, Do you think the authorities of that country can and will protect you if you go back? If not, why not? The applicant answered “Please refer to statutory declaration”. If the applicant is Shia his claims regarding the authorities not protecting him are incorrect. Further, his claims that relocating to the north of Iraq is impossible for a Sunni because Sunnis are not accepted in the north is also incorrect because he is not in fact Sunni.
Discussion at Hearing
The applicant was advised about the presence of a s 438 certificate and that it covered internal Departmental correspondence, including some that related to accusations against him. One of the accusations related to people smuggling but this was outside the scope of the hearing and therefore not relevant. The other information that was relevant including an accusation that he had been untruthful and was actually Shi’a not Sunni. The issue of his identity was relevant to the proceedings and would be taken into account, but he was also advised that he had been aware during the visa cancellation process that the issue of his true religious identity was in question. He noted that he understood..
He was referred to a psychologist’s report and asked if he was being treated for mental health issues. Asked if he had evidence of this, he said he had prescription medication and was asked if he had a doctor’s letter outlining his treatment as there was only one letter from Psych Central from 2015. He said he didn’t know he had to provide these but had a letter on his phone from his doctor from two months ago – this was from a family doctor.
Asked if he was under treatment from a psychiatrist and he said he was under [name deleted] – it was put to him that she was a psychologist. He said he used to see a doctor before [name] and last saw her about a month ago. He said he had to attend but had physical and mental issues. It was put to him that in the absence of any medical advice to the contrary he was able to attend the hearing and he said that he was able to attend without problem.
He was asked about a birth certificate he presented and he said it was for his child and he was in a relationship with the mother but was never married to her. He had been married to a woman in [Country 3] by a sheikh but she disappeared. She fell pregnant but told him she had a miscarriage when he was on Christmas Island. He had mentioned this and that she had asked for a divorce from him. He was asked if he had a paternity test for the child in Australia and he said that he didn’t have one.

He was asked and agreed that everything he had previously said and written was true and correct. On 9 May 2014 he had applied for Australian citizenship and the Iraqi ID documents he provided indicated that his name was [applicant name] and that in an interview with the Department in November 2016 he stated that his father’s name [Mr A]. His father’s name differed from that he gave at the visa processing stage – he initially advised the Department that his name was [Alias 1].
He was asked if his name was [Alias 1] and he said it was. He was asked if he was known by any other names and he said he wished to explain first. At Christmas Island he provided the name [applicant name] but wished to explain. The applicant was advised that the Tribunal had to determine whether there was non-compliance with s 101 of the Act.
The information at paragraphs 10-20 above was put to the applicant. He was asked if he remembered making these statements and he said that he did. He made these statements because they were the events that occurred to him.
He was advised about s 424AA and he was advised that the information that would follow was covered by s 424AA. The information at paragraph 45 was put to him and he was asked why he had not answered initially on the form whether he was known by any other name and why he appeared to be known by another name different to what he had originally given as this may indicate he was not truthful when filling out the form.
He claimed that he had first said that his name was [name]. his father’s name is [Name 1] and his grandfather is [Name 2] and when he was asked what other names he was known by, he said the family name which consists of two [names]. They asked him which name he chose and he said he chose the last name because this was the bigger name they were known by internationally and in Iraq so he chose this. When he was asked why [Alias 1 surname] wasn’t mentioned in his citizenship he said that 70-80 % of Iraqis don’t mention their family name, only the grandfather.
Hence he and his father had three names. He has [Name 2] (his grandfather) and his father has [Surname 2] (his grandfather). The bigger official census records have the family names. Asked what his identity documents have, he stated that it was [the first half of the name] with no mention of [Surname 2].
In his family register he was known by the name of the father and grandfather – asked what name he was known by on the family register he said [the first half of his name]. Asked where [Surname 2] appeared, he claimed it was in his father’s documents and he provided this to the Department. The originals were given to the Department. Asked how the name [Alias 1 surname] appeared in the documents, he claimed he didn’t know how it happened and the translator may have done this from the licence. He claimed that he remembered when he arrived on Christmas Island he provided his citizenship documents there.
Asked how many brothers he ahd, he said he had two; [name] and [Mr B]. He also had [number of] sisters. [Mr B] was in [Country 2] as a refugee and this was why he stayed there. Asked to confirm he had been recognised as a refugee and granted citizenship, he said that because of the large numbers he was still awaiting a decision. He thought he may have gone there at the end of 2015, early 2016 but couldn’t recall exactly. He was advised that the Tribunal had asked for the documentation from [Country 2] relating to his claim.
His father was in [Country 1] and he had applied for protection and was also waiting for a decision. He had left for [Country 1] around a month or two after [Mr B] left but couldn’t recall exactly. He said he found it hard to remember things but it would have been at the end of 2015. The applicant had left Iraq in June or July 2009. Asked where his father was between the applicant leaving and his father leaving, he said they moved between farms and villages and then went to Syria to apply for protection at the end of 2010/early 2011 but he had a problem with his memory.
Asked if they stayed in Syria until they went to [Country 1] and [Country 2], he claimed that they were displaced in Syria and were forcibly removed to Iraq by plane. Assad’s militias forcibly removed them but they didn’t have to pay for the plane trip. Asked where they applied for protection in Syria in 2010, he claimed that it was in Damascus but he wasn’t sure what year. They were accepted as refugees. It was put to him that the Tribunal didn’t have a copy and he was asked who he gave the copy to.
He said he had given them to his lawyer, who said he would check. He was asked how they could have been flown to Iraq if they had been accepted as refugees in Syria, he said that events in Syria in 2011 or 2012 created violence and they were targeted for being Sunni and their neighbours arranged for them to be smuggled out on these planes for which they had to pay no money. Asked when this occurred, he claimed it may have been at the end of 2012 or the end of 2013 but he wasn’t sure. They were then in Iraq until they went to [Country 2] and [Country 1].
Under s 424AA it was put to him that an examination of his social media profile by DIBP showed him in front of the Imam Abbas shrine in Karbala in 2007 and he then denied having been there until shown the photo that showed him there. He claimed that he didn’t deny this and it was put to him that the records stated he originally denied having been at the mosque or location. He claimed that when he was asked this he wasn’t inside the mosque but was outside it. The person fabricated his answer because as a Shafi’i follower they take the blessing from the shrines.
Asked to confirm that he was claiming the Commonwealth official had fabricated his answer, he stated that he meant to say he had been photographed in front of the building but from a distance. It was put to him that the record indicated he had denied ever being at the location or the mosque – he denied this was true but didn’t know why they would say this. It was put to him that he had never denied this in his response letter and was asked why he was only raising this now. He claimed that he explained this to his lawyer and had explained this to him. It was again put to him that there was nothing in his response denying that he had said this. He claimed he was only asked if he had been inside the mosque and he was just passing by.
He went to this place as he had paid money for a passport and they usually made people stay close to this location. It was put to him that the Tribunal was keen to know whether he had ever denied being at the mosque or in Karbala. He claimed he had never said this and the evidence is that the photo is still on his [social media] site.
There was a concern that the social media site contained the photo in front of a Shi’a mosque in Karbala and the site of someone called [Alias 2] who is the applicant’s father indicates that the father is Shi’a and that he has social media links with [Mr C] (his cousin) and also [Mr H] whose social media links indicate that they may be Shi’a. His father has vision of him mourning Imam Hussein and liking a photo of a young boy with a headband saying ‘[deleted]’. His father also has links to a [social media] site of someone called [Mr G] who also appears to be standing outside various Shi’a mosques and shrines and shows Shi’a iconography and Shi’a militia symbols. [Mr C]’s [social media] site also has references to Shi’a iconography, including [Mr C] and others (including [Mr H]) in Shi’a militia uniforms and [Mr H] with supporting remarks regarding Iran.
The totality of all of this would indicate a close relationship with Shi’ism. The fact that his father was named [Alias 2] and followed someone called [Mr G] may indicate that the applicant had a brother he had not informed the Australian government about. He had also said that his brother [Mr B] had taken photos of himself in a Shi’a militia uniform. This was all under s 424AA and it indicated that there was a weight of information that indicated he and family members were and always had been Shi’a. He was also from Nasiriyyah which was heavily Shi’a. If he were Shi’s this not only indicated that he had given false information but called into question his entire claim given it was based on him being targeted because he was Sunni.
He claimed that many points had been mentioned and he was advised that he had already been advised of these concerns in writing and given the chance to respond so they would have come as no surprise. He claimed that because of his mental condition and his suffering he required only one question at a time. It was put to him that he had not provided any medical evidence to support the claim to be asked questions in a particular way.
Regardless, he was asked why he had a photo in front of the Imam Abbas mosque in Karbala. He claimed that he had asked someone from Karbala to get him a passport and had to travel there to get it. Asked why as a Sunni he didn’t ask another Sunni to help him, he asked that people who took bribes had no religion. People from Nasiriyyah asked people from Baghdad for passports, but he didn’t as it was too expensive and they wanted too many documents.
Asked if he had mentioned the need to go to Karbala to get his passport he claimed that he wasn’t given a chance. It was put to him that he had been given a chance to provide a written response and he then said that he explained to his lawyer that he was only passing by and didn’t go into the mosque but he didn’t tell the lawyer about the passport. Asked if he was just passing by the shrine he said that he was and he was asked why he then had a photograph taken of him outside it. he claimed that he was Shafi’i and that they can take blessings from Imam Abbas and there was a professional photographer and he got his photo taken. He wasn’t there for long. He got out of the car and saw the photographer – it was about 2 am.
Under s 424AA it was put to him that he had said on the [social media] site where the picture was located that ‘It was the best time two days not sleeping’. He said he had just ducked in and out as he was just passing by and, if he was a Sunni fearing his life from Shi’a attacks it seemed strange that he would have said that he had spent two days without sleep. Yet some Shi’a commemorations may require staying up all night so the comments seemed to be what a Shi’a, not a Sunni would say.
He claimed that he didn’t say he had spent two days at that place. He said he hadn’t slept for two days because he had to move from one place to another – the farms, the desert, to places he hadn’t seen before. So when he arrived at the shrine he got the photo taken and left straight away. He received the photo at a photographer’s place in Nasiriyyah.
He was asked why his father as a Sunni would have social media links with very observant Shi’a. He claimed that his father didn’t write or read. His father didn’t start his account and someone else did it. he doesn’t know how to start an account and he has other accounts. It began in [Country 1] and was started by someone else. He was asked why someone would start an account for him and link the account to Shi’a militia groups.
He said he didn’t know how it happened or why they did it. he thought it was funny because his father was illiterate. He was asked if he raised these issues in his response to the notification he received, he claimed that he couldn’t remember but he wasn’t previously given the opportunity to answer verbally. It was put to him that this information he was just given was included in a written notification and in his response there was no mention of his father being illiterate or someone else creating the [social media] account and the Tribunal was wondering why this was.
He claimed that the letter he received was only talking about the name [Alias 1 surname] – there was no mention of the [social media] issue. It was put to him that all the information (including the [social media] issue) was included and he responded to it and he had also attended two identity issues where the issue was raised regarding the [social media] account. He was asked to confirm that his father had nothing to do with the site and there was no other son called [Mr G] and that someone else had established all the online connections with Shi’a militia groups.
He agreed this was the case and was asked why someone would go to the extraordinary effort to create this persona with such links. It was also strange that he had never mentioned this previously. He claimed that what he understood from a previous interview with someone called [name], two people came and provided information about the applicant and he had sworn on the Qur’an to tell the truth. He was asked why he had never mentioned this creation of a false [social media] account previously as there was no record that he had ever made this claim and he was asked why he was only making it now.
He claimed that he wasn’t given the chance at previous interviews to explain this. He had never known there was any issue with the [social media] site of his father or anything related to [social media]. The only issue was with his name. He was asked to provide copies of the correspondence he had received in which there was no mention made of the [social media] site and only of his name. If he didn’t have it then his lawyer would.
He said that he didn’t want to put his life or that of his family at risk and he was asked why it would be at risk given he had been in Australia for 10 years. He claimed that because of the accusations given to the Tribunal his life was in ruins and he took too many tablets for his mental condition. He was then advised that if he believed that his life was at risk then he should go straight to the NSW police, with or without his lawyer.
One of the witnesses was brought in ([a named person] for [Organisation 1]) and he claimed they had known the applicant for 9-10 years. Asked what contact he had, he said [Organisation 1] looked after mosques and during religious occasions during the year. They had seen him on Fridays at mosque quite often at their mosque and others. Asked roughly how often he saw the applicant during a year, he said that this year around 20 times. In 2019 he attended lectures with an overseas speaker over a few months.
Asked what he knew of the applicant’s personal life he said that he knew very little but knew he was married because they had spoken about it. His wife’s children were attending one of the schools they looked after. Asked where he was married or by whom, he didn’t know but the applicant told him. It was put to him that there was no indication that he had bene married anywhere on the birth certificate. The witness said that in their religion one had to be married to have a partner.
The witness was asked if it would raise questions as to his loyalty to the faith if he had a child and wasn’t married and the witness agreed that they should be married but that not all Muslims practised everything properly in Australia. Asked if he had checked with anybody in Iraq about the applicant’s Sunni faith he claimed that he didn’t but that he had no doubt about the applicant being Sunni. It was put to him that he had claimed the applicant was married based on what the applicant told him but in fact he wasn’t married – the Tribunal had to give weight to his opinions and what he based them on. I note that the applicant had previously claimed to have married a woman in [Country 3] however in the absence of any evidentiary support for this claim such as an Islamic marriage contract, photos or any record of correspondence along with the applicant’s demonstrated lack of credibility as a witness I do not accept that he was married in [Country 3]. Regardless, the witness was talking about the applicant’s perceived marriage in Australia, as he referred to the fact that his wife’s children were attending one of their schools.
The witness claimed that some people lived together while the marriage paperwork was put together so some may be married according to Islamic law. The Tribunal asked him to confirm that his view of his Sunni identity was based on what he had seen in Australia and his view of him being married was based on what the applicant told him. He had no doubt the applicant was Sunni as the two faiths had different ways of praying.
The second witness knew him since 2011 and was a regular at the mosque when they had teachings or lectures. He was an imam at [a] mosque and taught there. Asked if he knew much about the applicant’s personal life, he said he knew he was Sunni from the way he prayed. Asked if he knew if the applicant was married or single, he said he knew he had children. Asked if he was married he said of course he must be married as a Muslim with children. He didn’t know who married him.
He was asked whether if the applicant wasn’t married whether this would change his view of the applicant’s religiosity, he claimed that if he had a wife and children he must have a religious ceremony but may not have registered it with the government. He was asked why, if he was close to the applicant and had known him since 2011 why the applicant hadn’t asked the imam to marry him. He said that according to their way he didn’t have to get married by him just because he came to their mosque. Asked if he did any checking regarding his religious identity in Iraq before the applicant was known by him in 2011 or whether he based his opinion entirely on his post-2011 knowledge of him, he claimed that there was no need to check up on them. It was enough that he came to their mosque and prayed – they had thousands of people and couldn’t check on them all.
The applicant advised that the imam could provide more information about the Shafi’i receiving blessings from the family of the Prophet. The member allowed the witness to leave after advising the applicant that the member had academic qualifications in Islamic studies and was happy to look at the information he provided regarding the issue as he had already been given the opportunity to respond to this concern. The issue was much less about whether it was possible for a Sunni to be in front of a Shi’a shrine in Karbala and the more serious concern was the claim that the pro-Shi’a [social media] site had been created without his father’s knowledge and the fact this claim had never been made before.
It was also put to him that he had claimed that they would be killed because they had complained against the Iraqi military yet his father and brother lived in Iraq after the applicant left and then returned for a further three years without issue. It was strange that they could do this if the danger was of the nature he had claimed. He first said that the person who made the [social media] account had connections with the two people who had made allegations against him to DIBP.
Regarding his father and brother they faced some problems in Syria and they were forced to return to Iraq. Asked how they went back to Iraq, he claimed that the Syrian militia forced the people not supporting them to go back to Iraq. They flew them back to Iraq without them paying. Once back in Iraq they were treated inhumanely and they had to change residence four times. Asked what happened in the period after he left and before they went to Syria, he said they had a house but it was taken by force from them but they couldn’t get the house back.
At the end they were given a small amount of money and told to leave because the house was in a strategic area. He was asked why they weren’t targeted given he had said how his other relatives were kidnapped, tortured and/or killed including having their penis chopped off yet nothing happened to his father and brother. He claimed that they hid when the problems happened after the house was taken away.

Asked what happened when they returned to Iraq, he claimed that they moved around for years and years. They were in the farms and villages around Nasiriyyah. It was put to him that a Sunni family of two males living in a heavily-populated Shi’a area trying to hide during the height of Islamic State in Iraq (2014/15) would have aroused great suspicion so it was strange that they could survive. He claimed that in Iraq areas aren’t identified as Sunni, Shi’a or Christian or Mandean areas.
The majority of the population in Dhi Qar in the 2003 census were Shi’a with a Sunni minority. They had no connections with other Sunni groups in the area and they were raised with an ability to deal with other faith groups. People from Sunni groups were also encouraged via social media to join the Hashd al-Shaabi (Shi’a-dominated militia). Anyone who refused to join them were refused access to services to try to leave Iraq. His brother [Mr B] only got a photo in a militia uniform in order to get a passport. He didn’t know the name of the group whose uniform that he wore.
Under s 424AA it was put to him that he appeared to be in the uniform of Asa’ib al-Haqq and it would be implausible for a Sunni to be photographed in their uniform or with them and be able to get away with it. He said this was the first he had heard of this as he believed his brother was in the uniform of a soldier. It was also put to him that he would need something more than a photo in a uniform to get a passport as he would need identity documents or the like.
He claimed that in his time one needed to give a bribe and documents in order to get a service. One needed a connection in the passport department in order to get one. [Mr B] provided the photo in order to make it easier for him to be given the service he needed. He gave them the impression that he was with AAH even though he wasn’t really with them – the highest religious authorities had given them permission to join.
He was asked if he was currently working in Australia and he said that he wasn’t. He was being supported by Centrelink. Asked if he was Islamically married, he claimed it wasn’t in front of a sheikh but it was a misyar marriage. It did not require a contract and he had not gone in front of a sheikh. He had done a misyar marriage but not in front of a sheikh – he had met her for only two days and weren’t together now. He said he knew her before but they were together for only two days and the baby was conceived during this period. She was not an Australian citizen and was from Iraq – she had been divorced once before.
He was advised that the ITAO letter indicated that there was no impediment to his being removed from Australia back to Iraq because he was Shi’a and could return to Dhi Qar. He claimed that he was a Sunni and not Shi’a and that the [social media] evidence was not true and that the people who complained about him were the brother of the person who had created the fake [social media] site.
He was told he would be given time post-hearing to show that he had mentioned the fabricated [social media] site and he claimed he had said this in previous hearings. He was asked to provide evidence of this and advised that he had not referred to this in his written submissions. He claimed that he was not given the chance to answer in the interview and that the notification to cancel his visa did not make any reference to the [social media] site.
He then claimed that the high figures of the Sunni people are encouraging people to join Hashd al-Shaabi. One of the high Sunni sheikhs went on TV and was against the protestors and he has video links he had given to his lawyer. The adviser was told that he needed to provide documents regarding his psychologist treatment and the GP medications. He claimed that the applicant had provided his named identity to the Department. He also claimed that there was direct evidence the applicant was Sunni and there were calls to join Hashd al-Shaabi. It was put to him that AAH was not the type of group that Sunnis would join to pass themselves off as belonging to. It was also put to him that the issue of the fake [social media] page had never been raised previously. He also said that the applicant was Shafi’I which was close to the Shi’a rituals. He was asked to provide some academic references to the similarity of Shafi’i and Shi’a rituals at shrine sites.
The applicant also pointed out documents stating his attendance at Sunni mosques pre-2003 and his uncle working as a security at Sunni mosques. He was advised that the Tribunal would consider and give weight to them.
Analysis
Overall I found the applicant to lack credibility as a witness and that he has variously fabricated his religious identity, the alleged construction of a fake [social media] site in his father’s name and a range of other claims. Along with the implausibility and inconsistency of other aspects of his claims, I did not find him to be a reliable, credible or truthful witness.
I have taken into account the medical evidence provided post-hearing relating to his ‘complex PTSD and chronic depression’ but lend it little weight in explaining the fabrications and inconsistencies in his evidence. I note the diagnosis is based in whole or in part on claims of direct torture and witnessing frequent atrocities and the murder of family members (folio 100) which I have found to have been fabricated.
A number of issues were explored during the hearing and it is best to include them in sub-headings to better understand them and their impact on the review of the visa cancellation decision:
·Real Name. As part of his protection visa application, the applicant gave his name as [Alias 1] and did not answer whether he was known by any other name. His Iraqi documents indicated that his name was [name] and he claimed that [Surname 2] was in his father’s documents. He also claimed that [the names] was also part of the family name but [Alias 1 surname] was better known and this was used. He claimed that he had never called himself [Alias 1] but that the interpreter may have done this.
·Whilst I acknowledge that the use of Arabic family names in a Western context can be difficult to render accurately, that is one of the reasons why the option of including other names that they may be referred to by is included. I am not satisfied that the interpreter incorrectly recorded the applicant’s name as [Alias 1] given that [it] is the name he goes by on social media. I am satisfied that by failing to include a range of other names by which he was or could be known he did give false information to the questions relating to names by which he is known.
·Religious Identity. I am satisfied given the weight of evidence that the applicant is and always has been a Shi’a Muslim. To begin with he is from Nasiriyah, a majority Shi’a city in the country’s south. The social media accounts of his father link the father to the Shi’a faith through his mourning of Imam Hussein, the liking of pieces of distinctly Shi’a iconography and links to other individuals whose electronic footprint indicate that they have a close affinity with the Shi’a faith and contain images and writing that would not be on the social media pages of a Sunni.
·I do not accept that his father could not read or write and that someone had nefariously created a fake [social media] site for him. Not only would this require an elaborate plan to pull it off, no motive for doing such a thing was put forward. More tellingly when he was asked if he had mentioned this before, he claimed variously that he had never been given the opportunity at interview previously and that it was never raised with him in writing, only an issue about his name. He was asked to provide evidence post-hearing that the correspondence from DIBP did not refer to concerns regarding his father’s [social media] page, but he failed to do so.
·Yet the NOICC (folio 144) not only contained information regarding the [social media] site in question, it also noted that the information was put to the applicant during an identity interview and that he answered it. The applicant’s written response (folio 197) also includes reference to his father [social media] site. Yet on neither occasion did he mention that his father was unable to read or write or that the [social media] site had been fraudulently created by other people.
·The applicant is also in a photograph standing outside the Imam Abbas shrine in Karbala, one of the holiest sites in Shi‘ism. I do not accept that the applicant just happened to be in Karbala to pick up a fake passport and that he saw a professional photographer in front of the shrine and got him to take a photo of him in front of the shrine and send it to a photography shop in Nasiriyah to pick up. He never mentioned the need to travel to Karbala to pick up a passport previously.
·Not only does it seem anomalous that a Sunni who was allegedly trying to hide from Shi’a militia groups would seek to pick up a fake passport from one of Shi‘ism’s holiest cities, the picture was also captioned with the words ‘it was the best time two days not sleeping’. He claimed that this was referring to having to spend two days hiding in farms and the desert without sleep. It is reasonable to believe that having to spend two days hiding in the desert and in farms to avoid being killed would not be referred to as ‘the best time’, whereas they are the sort of words that could be used to describe a religious pilgrimage.
·I am also satisfied that a photo of his brother [Mr B] on social media in the uniform of the Shi’a militia group AAH is further evidence of the applicant’s family’s Shi’a religious identity. Whilst there were Sunnis who were part of the umbrella organisation known as the Popular Mobilisation Units (PMU), there is no indication that any were allowed into the Iranian-backed AAH[1] nor did the applicant provide any evidence of this post-hearing. His claim that [Mr B] had a photo taken to allow him to get a passport lacks credibility as it is reasonable to believe that passport authorities would want something such as an AAH ID card and/or contact so that [Mr B]’s membership could be verified rather than just a photo of [Mr B] in a AAH uniform.
·I have taken into account the evidence that has been presented in support of the claim that the applicant is Sunni but lend it little weight relative to the evidence above indicating that he is a Shi’a. I do not accept that he worked for the Sunni endowment (waqf) in Dhi Qar. This relies on his oral testimony which I have found lacks credibility and a photocopied document which he claims is evidence of his employment there as a guard. Country information indicates that fraudulent documents are commonly and cheaply available in Iraq[2], therefore a photocopied document of the type he has submitted carries little weight.
·I have also taken into account the evidence of two witnesses who attest to his attendance at their mosques while in Australia and the fact based on their observations and interaction that he is a Sunni Muslim. Whilst I accept that they gave what they believed was true testimony, there is obviously much about the individual that they do not know. Neither of them (for natural reasons) had tried to contact anyone in Iraq (such as the waqf) to verify his religious identity and neither of them were aware that he had allegedly had a child to a woman out of wedlock. This doesn’t indicate a very deep knowledge of the applicant’s true background, therefore I am not satisfied that their characterisation of him as a Sunni Muslim is well-founded.
·The post-hearing submission also claimed that the fact the applicant had a misyar (temporary) marriage was evidence that he was Sunni. I do not accept this to be the case. A misyar marriage requires two male (or one male, two female) witnesses to the conditions of the marriage and none were presented at the hearing so there is no supporting evidence that such an event ever took place. Temporary ‘marriages’ or sexual relations (muta’a) are also a feature within Shi’a jurisprudence so even if he was temporarily married it could equally be valid under Ja’fari (Shi’a) law.
·Nor do I accept that the applicant has a special devotion to Ahl al-Bayt shared with Shi’a because he is from the Shafi‘i madhab (Islamic school of law). He was asked to provide academic references for the similarity between Shi’a and Shafi’i observance and rituals   The adviser was asked to provide academic standard references for this but only provided general information regarding the links between Imam Shafi’i and Sufism (folio 99), the prominence of Islamic shrine sites which refers to Sunni and Shi’a both advocating to differing degrees visits to shrines but that makes no mention of a Shafi’i commonality with Shi’a practices (folio 91), and a response (folio 108) to an online question regarding Imam Shafi’I’s attitude towards Ahl al-Bayt that says his attitude towards them was a positive one. Whilst I accept that this may be the case, the inconsistencies and implausibilities in the applicant’s account of his reason for being at the Imam Abbas shrine is what makes me find him to be Shi’a rather than any ideological comparison between Shi’ism and Shafi’I Sunni schools of law.
·Other Family Members’ Circumstances.   The actions of his father and brother are also inconsistent with those of individuals who are also at risk from Shi’a militia (Badr Corps). His claim that the father and brother faced problems in Syria and were forcibly returned to Iraq by Syrian militias because the two of them were not supportive of those militias lacks credibility. Although he claimed that his father was registered as a refugee in Syria (folio 61) he also alleges that they were flown back to Iraq without having to pay. It is reasonable to believe that the UNHCR would have raised the issue of refoulement with the authorities or there would have been some publicity surrounding such actions, yet none was provided by the applicant nor is the Tribunal aware of such actions occurring.
·It also lacks credibility that if the applicants were wanted by the Shi’a militias in Iraq and had been refouled on a plane by the Syrian government that they would have been detained at the airport on arrival yet this doesn’t appear to have occurred. I also do not accept that their house was forcibly taken from them and they were only paid a small amount of compensation and the father and brother had to then move around the farms and villages of Nasiriyah. It lacks credibility that two adult Sunni males could, at the height of the conflict with Islamic State in Iraq and while wanted by Shi’a militias, could avoid being detained by simply hiding in villages and farms in the Shi’a majority south of Iraq.
·I accept that some of the applicant’s family have sought and been granted asylum in [Country 4] and have also claimed to be Sunnis wanted by Badr Corps. I also note that this claim post-dates the concerns raised by the Australian government regarding the applicant’s true religious identity and it is reasonable to believe the family would have known this. The Tribunal also asked for the claims put forward by the applicant’s father (in [Country 1]) and brother (in [Country 2]) so they could be cross-checked with the applicant’s account but the adviser stated they were ‘unable to get their statements from [Country 1]’ without elaborating.
·The applicant’s adviser provided what he claimed was the father’s refugee card in [Country 1] but what was provided was a copy of an identity (thought to be insurance) card (folio 124) in the name [variation of Mr E] although it is from [Country 5] and not [Country 2] – no explanation as to why the brother had a [Country 5] card even though he had applied for asylum in [Country 2] was offered. Because of the absence of his brother’s or father’s refugee claim documentation and the timing of his other family members’ refugee claims in [Country 4], I lend their claims made in [Country 4] little weight in determining whether they are supportive of the applicant’s original claim.
[1] accessed 2 March 2020
[2] DFAT Country Information Report – Iraq, 9 October 2018
Conclusion on non-compliance
I am satisfied that the applicant was not truthful about the names by which he is known, or about his religious identity. Because I have found that he is Shi’a and not Sunni he is not nor has he or his family ever been of interest to the Shi’a militias, particularly the Badr Corps. it follows that all of his claims regarding the kidnapping and killing of members of his extended family were fabricated as was his claim of his family’s house being taken over and his father and brother being forced to hide for years in farms and villages around Nasiriyah.
For these reasons the Tribunal finds that there was non-compliance with s. 101 by the applicant in the way described in the s. 107 notice because the applicant provided incorrect answers in his supporting statements to questions 13 and 42-46 in Form 866C. .
Should the visa be cancelled?
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 this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
· the correct information
The correct information is that at the time of lodging the application for a protection visa the applicant was Shi’a and was not, and continues not to be wanted by Shi’a (or any other) militia group in Iraq. The Tribunal considers the provision of incorrect information when applying for a protection visa to be serious and goes to the integrity of the migration program. The Tribunal gives significant weight to the fact that the applicant has provided incorrect information when he applied for a protection visa.
In his post-hearing submission the adviser argued that the s 107 notice was invalid because it was not particularised because the notice didn’t contain the relevant [social media] images or pages. Records indicate that the applicant was shown evidence as part of his identity assessment and the NOICC and his response indicate that he was well aware of the particulars of the incorrect information.
· whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document

100. The Tribunal is satisfied that the decision to grant the applicant a protection visa was based on findings that there was a real chance that the applicant would suffer serious harm because he was wanted by Shi’a militia (Badr Corps).
101. For the reasons stated above, the Tribunal has found that the applicant is not, and never has been wanted by Shi’a militias and is able to travel to and reside in Iraq without there being a real chance of suffering serious harm. Indeed, the applicant is himself Shi’a and his brother appears to have been a member of a Shi’a militia group himself. The Tribunal therefore finds that the decision to grant the applicant a protection visa was wholly or partly based on the incorrect information that the applicant provided in the application for a protection visa.

· the circumstances in which the non-compliance occurred

102. The Tribunal considers that the applicant has knowingly provided incorrect information to the Department with respect to his fear of returning to Iraq as part of his protection visa application for the purpose of gaining a visa. He continued to provide incorrect information when he responded to the Notice of Intention to Consider Cancellation and continued to assert that he feared serious harm from Islamic militias if he returned to Iraq.
· the present circumstances of the applicant

103. The applicant has claimed that he is the father of a child in Australia and presented a birth certificate in support of this. No DNA test was presented that would confirm that he was the father of the child. The post-hearing submission claimed that it was in the best interests of the child that the applicant be allowed to stay in Australia to take care of him. Even if I were to accept that the applicant was the child’s real father, he evinced no feelings for his child during the hearing nor that he provided any support to it or its mother - he said that he had been with the mother for two days only during which time it was conceived. Given the child was born more than a year ago and the applicant provided no evidence that he provided any financial or emotional support to the child it will be no worse off for his continued absence. I lend the presence of the child, even if it is his, little weight.
104. I note a letter from a psychologist dated January 2020 that indicates he has been a client of theirs for a number of years. I have noted previously that the diagnosis of mental health issues is based in whole or in part on accepting his account of events that I have found to have been fabricated. I also note that the psychologist’s letter indicated the applicant had seen a psychiatrist at the clinic but not since that doctor had left overseas ‘a few years ago’. There is no indication that he was referred to, or had seen another psychiatrist which would indicate that his condition did not require him to see one. Because the diagnosis was based in whole or in part on fabricated accounts of his personal history in Iraq, as well as the relatively limited mental health support he appears to require I give claims of mental health issues requiring specialised treatment little weight in favour of the applicant.
·     the subsequent behaviour of the applicant concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

105. The applicant has maintained that he is wanted by Shi’a militia in Iraq because he is Sunni when the information available to the Tribunal means that it is satisfied that he is actually Shi’a. He has never sought to correct the incorrect answers in his visa application.
· any other instances of non-compliance by the applicant known to the Minister

106. There is no evidence before the Tribunal in relation to any other instances of non-compliance known to the Minister. The Tribunal gives this consideration some weight.
· the time that has elapsed since the non-compliance.

107. The original non-compliance dates from 2010. Although a considerable time has passed, given the seriousness of the false claims put forward by the applicant in his original protection visa application the Tribunal does not consider this period to be of such significance to mean that the visa should not be cancelled.
· any breaches of the law since the non-compliance and the seriousness of those breaches

108. There are no known breaches of the law since the non-compliance. I give this some weight in favour of the applicant.
· any contribution made by the holder to the community.

109. On the face of it the applicant has not contributed significantly to the Australian community. He does not currently work and is on a Disability Support Pension according to his psychologist’s letter (folio 63). He has claimed to have fathered a child but has no indicated that he has any contact with the child of the mother. Few people or any Australian organisation will be disrupted as a consequence of his departure.
110. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
·whether there are mandatory legal consequences to a cancellation decision
·or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

111. The likely consequences of a decision to cancel the applicant’s visa are as follows:
a.He would become an unlawful non-citizen and liable to be detained and removed from Australia, and

b.        He would be limited in the types of visas he could apply for,
112. I consider that the likely or possible consequences of the visa cancellation outlined above are reasonable, given these administrative sanctions are the consequence of obtaining a visa by fraud. I therefore give little weight to the consequences of the visa cancellation decision. I also note that the individual can avoid immigration detention by applying for a Bridging E visa or by voluntarily leaving Australia.
113. The Tribunal has not accepted that the applicant is wanted by Shi’a militias in Iraq or that there is a real chance that he would face serious harm on return to Iraq. An ITOA was completed, the applicant having been given the opportunity to submit information to inform the ITOA, and the assessment determined that there was not a real chance that the applicant would be persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion.
114. The ITOA was completed in May 2017 and found that non-refoulement obligations were not engaged in the applicant’s case. Whilst a new DFAT Country Report on Iraq has been issued since the ITOA was written in 2017 I am satisfied that the findings of the ITOA remain current. The ITOA refers to the southern parts of Iraq (where the applicant is from) as being relatively safe and secure and the latest DFAT report notes that southern Iraq is more secure than other parts of the country and that Shi’a and Sunni who have returned to southern Iraq after seeking asylum have done so without significant difficulty.
115. I have also taken into account the recent unrest caused by protests but note that the applicant has never indicated that he has protested in the past. In his post-hearing submission he claimed that a distant relative informed the Shi’a militias about the applicant’s [social media] activities that indicated the applicant had a firm stance against the Shi’a militias on [social media]. He included screenshots of [social media] posts under the name ‘[Alias 3]’ as evidence of this.
116. He had not previously mentioned the existence of the [social media] in any of his previous correspondence, he has only provided part translations of post-late 2019 entries that would indicate anything that appears to criticise militia groups, and he gave few details about the ‘family dispute between a distant relative and one of his sisters that allegedly led to the distant relative revealing the existence of this [social media] page. Given this I lend it little weight in proving that the applicant is involved in anti-Shi’a militia political activities.
117. I accept that most, if not all of the applicant’s direct family may be living outside of Iraq. Given that he has not indicated the final status of his brother [Mr E] or his father it is not necessarily the case that they will continue to reside overseas permanently. Regardless, social media posts previously advised to him about family members indicate that he is likely to have some extended family members still in Iraq, and to the best knowledge of the Tribunal he has not indicated that he has no family members at all in Iraq. The applicant is also still relatively young (mid [age range]) so it is reasonable to believe that he would be able to gain employment commensurate with his educational qualifications, utilise extended family networks in Iraq and can start his own family at some point in the future.
118. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
119. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Rodger Shanahan
Member

ATTACHMENT – Migration Act 1958 (extracts)
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)     applicants in stated circumstances; or
(c)      applicants in a stated class of people (who may be applicants in a particular place); or
(d)     applicants in a stated class of people (who may be applicants in a particular place) in stated circumstances.
(2)If the applicant responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a applicant in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the applicant in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2020] AATA 719

11 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction