1714873 (Refugee)

[2020] AATA 1136

1714873 (Refugee) [2020] AATA 1136 (10 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714873

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Paul Millar

DATE:10 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 10 January 2020 at 3:39pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – Federal Circuit Court remittal – ground for cancellation – incorrect information in visa application – claimed fears of harm – requested by the Al Dawa party to cease operation of business – threats received – abduction and murder of uncle – credibility concerns – voluntary return to Iraq – wife’s and children’s relocation – consideration of discretion – incorrect answers material to visa grant – non-refoulement obligations – return to Iraq as a Sunni Muslim man in a Shia majority area – access to health care – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).  The delegate cancelled the visa on the basis that the applicant provided incorrect information. 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 delegate’s decision was previously affirmed by this Tribunal (differently constituted and referred to in this decision as ‘the first Tribunal’).[1]  The applicant challenged the decision of the first Tribunal in the Federal Circuit Court which found that the first Tribunal committed jurisdictional error and remitted the case for reconsideration.[2] 

   [1] See Administrative Appeals Tribunal, Migration and Refugee Division, Case Number 1609220, 16 September 2016.

   [2] See DAU16 v Minister for Immigration and Border Protection and Anor, MLG2250/2016, 6 July 2017.   The Court determined that the Tribunal took into account an irrelevant consideration, by asking whether, with respect to the applicant's health conditions and access to quality health care in Iraq, there was a real chance or a real risk of him facing serious or significant harm as contemplated by the Act.

2. The applicant appeared before the Tribunal on 29 November 2019 to give evidence and present arguments. 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 who attended the hearing.  After a break was taken in the hearing, the representative entered the hearing room alone and advised the Tribunal that the applicant had a ‘medical issue’.  The applicant then came back into the hearing room and he said that his heart felt sore.  However, the applicant then said that he wanted to complete the hearing.  The Tribunal advised the applicant that it would continue with the hearing, but, if he felt that he could not concentrate, understand questions or respond to them, then he had to tell the Tribunal.  The hearing then proceeded to conclusion without any incident and without any break needed by the applicant. 

3. The Tribunal has before it medical evidence about the applicant’s physical and mental health (discussed further below in this decision).  The Tribunal must state at the outset that the applicant appeared to be well able to comprehend the Tribunal’s questions and respond to them. The Tribunal is satisfied that the applicant had a meaningful opportunity to participate in the hearing.  Further, it is also necessary to record that the representative made submissions on the applicant’s case in letters dated 18 December 2015, 30 August 2016, 25 November 2019 and 20 December 2019 (referred to in this decision as ‘the submissions’).  The Tribunal has dealt with the submissions throughout the decision where relevant to the issue in question.

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

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

5. 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 with respect to what the delegate found to be incorrect information provided by the applicant in his protection visa application.  To determine if this amounted to non-compliance it is necessary to first recite the evidence given by the applicant at the Tribunal hearing that relates to that issue.  

   The applicant’s evidence at the Tribunal hearing

6. The applicant said that he and his uncle owned [a business] which began trading in April 2011. The applicant said that by local standards he and his uncle invested a great deal of money to set up and operate this business. The [business] employed approximately four or five people.  The applicant was engaged in the management of the business, primarily, obtaining payment from customers.  He worked from an office in the [business].  The applicant’s uncle supervised the employees and the [assets] in the [business].

7. At this time, the applicant lived in his native area of [‘Town 1’] and the [business] was located in another town (‘Town 2’) which was approximately a half hour drive from the applicant’s home.  Prior to opening the [business], the applicant, his uncle and other men would gather in each other’s homes to discuss politics. The applicant and his uncle ceased attending those meetings once the [business] commenced operating in April 2011. In late July 2011, a person from the Al Dawa party came to the [business] and told the applicant and his uncle to go to the party office in Town 2. 

8. The applicant and his uncle complied with the request and sat down and spoke to someone who was wearing a turban (‘X’).  He told them that they did not belong to any political party and asked them who gave them permission to build the [business premise].  They told X that they got approval from the provincial government in mid-July.  However, X told them that the [business] was illegal and should be closed. X said that the [business] incited people against the government because the production and sale of [product] was against Islam.  The applicant and his uncle told X that they disagreed and that they could not afford to close the [business].

9. The Tribunal asked the applicant why he and his uncle agreed to visit this party office in the first place and why they did not just ignore the request that they go there. In response, the applicant said that he and his uncle could not do that because the party was linked to criminal gangs and was in the government as well.  When asked how he felt about continuing to operate the [business] after this discussion with X, the applicant said that because his uncle was a reputable and strong man, he did not think that there would be any adverse repercussions for refusing X’s demand.

10. When asked what happened after this visit to the party office, the applicant said that he and his uncle just returned to the [business] and it continued to operate.  Then, after approximately 20 days, the applicant was at home when he was called by workers from the [business] who told him that police had come there and taken his uncle away. The applicant went to the [business] and workers told him that the police blindfolded and handcuffed his uncle who asked them where they were taking him. The people who apprehended him said that they were from the provincial affairs office.

11. The applicant straightaway went to various authorities in the area to try and find his uncle. When asked how he felt at that time, the applicant said that he was terrified because he thought that his uncle had been kidnapped. He visited three police stations but could get no information as to his uncle’s whereabouts. He returned to his home and, at 5 am the next morning, the applicant received a telephone call from the police in Town 2 who told him that they had found his uncle.  The applicant then went with those police to a location where he saw his uncle’s dead body underneath a bridge in Town 2.

12. The applicant, from that time, made arrangements for his uncle’s funeral which was held four or five days later. The applicant continued to go to the [business] until, approximately two or three weeks after recovering his uncle’s body, a letter was pushed under the door of his home. The letter contained a threat that the applicant’s fate would be the same as his uncle if he did not pay the sum of [amount].   The uncle believed that the letter was sent from the Al Dawa party who he thought was also responsible for the death of his uncle.  He said that this was because that party had asked him and his uncle to close the [business] and they refused. He said that the party were in power and had authority.  They could do whatever they wanted and were not accountable for that.

13. When asked what he did once he received that letter, the applicant spoke to his wife and told her that she and their children could not leave the house.  The applicant then obtained some money and late in the evening, on that same day, he travelled to Nasiriyah.  There, the applicant, his wife and children stayed in a farm owned by his [sibling] in an area called [‘Town 3’].   The applicant remained in this area until leaving Iraq to come to Australia [in] September 2011.  When asked if he received threats from anyone while staying in Town 3, the applicant said that no one would have been able to find or locate him.

14. The Tribunal asked the applicant why, in that event, he did not just keep living in Town 3 and, instead, left his country and came to Australia.  In response, the applicant said that, although the farm on which he was staying in Town 3 was in a remote area, the Al Dawa party had offices in Nasiriya and, therefore, they would eventually find him.  The Tribunal asked the applicant what happened to the [business] after he left Iraq.  In response, the applicant said that once he fled to Nasiriya he told his uncle’s family that he would not return to the [business]. He abandoned the [business] and understood that the [assets] was stolen and the [business premise] became an empty building.

15. The Tribunal asked the applicant where his wife and children lived after he left Iraq.  In response, the applicant said that some time they remained in Town 3 and then returned back to live in Town 1.  When asked why they did that, the applicant said that Town 1 was their home. For them to live in a different area they would need a recommendation letter from a mayor.  He said that they would not be able to obtain such a document because the authorities were Shias and he and his family were Sunnis.  They did not remain in Town 3 because the farm on which they were staying was simple and remote.

16. The Tribunal then asked the applicant what difficulties his wife and children suffered after he left Iraq in September 2011. In response, the applicant said that they had many troubles. When asked what those troubles were, the applicant said that his wife and children saw hatred in the eyes of everybody; shops would not sell things to his wife. His children would be excluded from afternoon prayers and told that was because they were ‘kafirs’.  His children who were old enough to work would not be given employment. The family received discrimination.  When asked if his family received threats from anybody in this period after he left Iraq, the applicant said that they did not. When asked why the family would suffer discrimination, the applicant said that it is because they were Sunnis living in a Shia majority population.

17. The Tribunal put to the applicant that he returned to Iraq [in] December 2012.  The applicant said that was correct and it was because he had been contacted by his brother who told him that his father was not well and would pass away.  For this reason, the applicant travelled back to Iraq and his father passed away while the applicant was travelling.   On arrival in Iraq, the applicant was met at the airport in Basra by his brother who took him by back roads to the farm in Town 3.  The applicant’s wife and children came and stayed with him there.  When asked how long he intended to stay in Iraq at that time, the applicant said that he had not set any fixed period.  He just wanted to see his father and thought that his time there would not be long.

18. The applicant remained in Iraq until March 2013 because of difficulties administering his father’s estate.  In this respect, the applicant said that his father had married twice and he had problems dealing with his stepmother.  The applicant remained in Town 3 while in Iraq and would give his brother instructions as to what had to be done with the estate.  This involved transferring possession of a house to his stepmother and sharing the remainder of the property among various family members.  His stepmother delayed matters by insisting that she receive the largest share of the estate.

19. Although she was stubborn, the applicant was finally able to negotiate a settlement with her which necessitated his brother bringing her to Town 3 at the conclusion of their dealings to speak to him in person.  The Tribunal asked the applicant why he could not talk to his stepmother over the telephone.  In response, the applicant said that their contact had to be face to face as the situation was difficult.  After their meeting in person, his stepmother said that she felt better and no longer feared that the applicant would ‘cheat’ her out of her entitlement to his father’s property. 

20. The Tribunal asked the applicant where his wife and children lived once he left Iraq and returned to Australia in March 2013.  In response, the applicant said that they stayed on the farm in Town 3 before then returning to the family home in Town 1.  The Tribunal asked the applicant what difficulties his family suffered after he left Iraq at that time.  In response, the applicant said that, on one occasion, when one of his sons, Y, went out of the house and was walking on the street, he was approached by some men whose faces were covered.  These men started beating the applicant’s son, breaking his [limbs]. The attack ended when a police car passed by.

21. The applicant said that he did not know who was responsible for this attack.  When asked if it was linked to his trouble with the Al Dawa party, the applicant said that he could not say that it was. He then said that gangs come from that party and kidnap and kill people. He said that they can do anything and would not be held accountable.  The applicant said that he returned to Iraq in January 2014 on being given the news of the attack on his son.  The applicant again stayed on the farm in Town 3.  At the time of his arrival, the applicant’s son was in Town 1 and the applicant’s brother took him to the farm where the applicant was staying.

22. At that time, his son’s [limb] was in ‘bad shape’ and a nurse came from a hospital to the farm to provide care to his son, to change dressings and give his son injections. The applicant said that he paid for that medical care. He said that his son had also undergone surgery in which a metal plate was inserted into his [limb].  When asked if he returned to Iraq because of the attack on his son, the applicant said that was correct. He said that he was his son’s father and no one would want to see a video of their own son wounded.

23. The Tribunal asked the applicant how long he was planning to stay in Iraq on this particular trip.  In response, the applicant said that he did not set any period of time and he just wanted to see his son.  He wanted to see that his son got better, but, the medical treatment took time.  The applicant said that he remained in Iraq until June 2014 because his mother had a stroke and half of her body was paralysed.  His mother usually lived with his brother, but, in January 2014, they all came to the farm in Town 3 to stay with him and that is where she suffered the stroke.

24. When asked why his mother’s illness made it necessary for him to remain in Iraq, the applicant said that she was his mother. The Tribunal put to the applicant that he had sisters who could have cared for his mother as well as his brother. In response, the applicant said that that was correct but his mother was clinging to him and asking him not to leave. He said that his brother did not give her the same level of care as he did.  When asked why he left Iraq in June 2014, the applicant said that he could not stay any longer as he felt that he was living in a jail. He said that he could not go out and his movements were restricted. Once his brother told him that the doctor said his mother was better and she began to move her arms and legs, he thought he could return to Australia.

25. When asked if the doctor actually came to Town 3 to examine his mother, the applicant said ‘No’.  He said that they would not bring anyone to the farm because they were being careful with his security. The Tribunal put to the applicant that he had earlier said that a nurse came to the farm to care for his son. The applicant said that his brother knew the nurse who did not know about the applicant’s circumstances.  When asked why the applicant did not have this nurse care for his mother, the applicant said the nurse did not have the skills to be able to do that. His mother did not need injections or dressing.

26. The applicant said that he gave her the care she needed which was giving her food and water. After he returned to Australia, the family provided that care and then his mother passed away.  After he left Iraq, he thought that his family remained in Town 3 for a long time before then returning to the native area of Town 1.  The Tribunal asked the applicant whether, apart from the attack on his son and his mother’s stroke, anything else happened to cause him distress or fear for his and his family’s safety in Iraq.  In response, the applicant said that he was always fearful because the Al Dawa party was located in Nasiriya.

27. The applicant said that when he went to Town 3 he was very scared. His brother said that he would be kept there and no one knew that he was there. Nevertheless, he believed the situation was risky and mentioned a Sunni sheikh who got killed.  The Tribunal asked the applicant whether, on this occasion, he always remained on the farm in Town 3.  In response, the applicant said that once or twice he went to some shops, but, he always covered his head. When asked if he had difficulty or suffered harm on those particular occasions, the applicant said that nobody knew him.

1. The Tribunal asked the applicant where his wife and children lived after he came back to Australia in June 2014. Again, the applicant said that they remained for some time in Town 3 before going back to the native area in Town 1 after some time.  When asked why they did not return there straight away, the applicant said that it was because his mother was unwell and the family did not like Town 1.  Nevertheless they remained living there until they themselves left Iraq and went to [Country 1].  The Tribunal asked the applicant when they did that.  In response, the applicant said that it was approximately one and a half or two years ago. 

2. With the submissions, the representative provided copies of pages from the Iraq passports of the applicant’s wife and some of his children indicating that they departed from Iraq through the airport in Basra in August 2018 arriving in [Country 1] on the same day.   The representative also provided documents issued by UNHCR to the same family members indicating that they applied for protection in [Country 1].[3]

   [3] The copies of pages from the passports and the documents issued by UNHCR appear on the Tribunal file at folio 78-82.

3. The applicant then said that his wife and children never lived anywhere else in Iraq apart from Town 1 and Town 3.  When asked why his wife and children went to [Country 1], the applicant said that it was the situation; they could not take it anymore. He said that they were living in a society where everybody hated them and their children had stopped going to school.  The Tribunal asked the applicant why his wife and children would have those difficulties after he left Iraq in 2011 and not prior to that time.  In response, the applicant said that when Shia parties take power in Iraq, they caused trouble which did not happen under the former regime of Saddam Hussein.  In response to this same question, the applicant then said that ‘at that time’ Shia people filled the minds of Shias to hate Sunnis and this increased day by day.

4. The Tribunal asked the applicant how his wife and children supported themselves over the period of four years between his departure from Iraq in June 2014 and the departure of his wife and children to [Country 1] in August 2018.  In response, the applicant said that a paternal uncle was with them and there were profits from land inherited from the applicant’s father.  The Tribunal asked the applicant why his wife and children would go to [Country 1] in August 2018, if they had been suffering discrimination for being Sunni over a number of years. 

5. In response, the applicant said that it was not easy to live and they did not know where to go. They needed money and in [Country 1] they barely survived, having only life necessities. He said that in the time before they went to [Country 1], there were robbers on the street and no security. The children would hear bullets at night and would not be able to sleep. Any problem in a Shia area means that they are not safe.  When asked if his wife and children were ever attacked or threatened before they went to [Country 1], the applicant said that no specific people ever threatened them. However, his wife said that she and the children were afraid.

6. After the applicant had given this evidence, the Tribunal put to him that according to copies of pages from the applicant’s wife’s passport, that were submitted to the Tribunal, she had a visa to travel to [Country 2] in May 2014 and that she left Iraq in May 2014.  In response, the applicant said that was correct. The Tribunal asked the applicant why his wife held a visa for [Country 2] and left Iraq at that time.  In response, the applicant said that she went for medical treatment. At the time they had heard about a doctor in [Country 2] who was treating conditions similar to the paralysis suffered by his mother. Therefore, they travelled to [Country 2] for one week only to find out that no such treatment was available, only physiotherapy. 

7. The applicant then said that he had forgotten about this which was why he did not mention it earlier when giving evidence about this period of time that he was in Iraq.  When asked who travelled to [Country 2], the applicant said just his wife and his mother.  The Tribunal put to the applicant that he was still in Iraq at that time.  In response, the applicant said that he was staying on the farm in Town 3 at that time.  The Tribunal asked the applicant why he did not leave Iraq at the time that his wife and mother travelled to [Country 2].  In response, the applicant said that he wanted to check on his mother to see how things went in [Country 2].

   Credibility concerns

   Willingness to return to Iraq

8. The applicant made it clear in his evidence to the Tribunal that he perceived the Al Dawa party as being powerful.  He said that he and his uncle could not have ignored the request to visit the party office in late July 2013 because the party was linked to criminal gangs and was in the Iraq government.  He indicated that he was in great fear for his and his family’s safety when a threatening letter was left under his door, the applicant taking his wife and children to Town 3 for that reason.  In this respect, the applicant said that he believed that his uncle’s abduction and murder and the threatening letter were all the work of the Al Dawa party.  He again said that people from the party were in power, had authority, could do whatever they wanted and would not be held accountable.  He did not remain in Town 3 because he said that the Al Dawa party had offices in Nasiriya and would eventually find him.   It was for all of these reasons that he fled from Iraq in September 2011.

9. The Tribunal was understandably concerned that, in those claimed circumstances, just over one year later, the applicant returned to Iraq where he remained for approximately three months.  The Tribunal could allow for the applicant making the decision to return to the country from which he fled for his safety to see a parent who was seriously ill and, it was believed, close to death.  However, the Tribunal does not accept, even in those circumstances, that the applicant would stay for the period he did.  On that occasion, he said that he remained in Town 3 all of that time, having earlier said that the Al Dawa party had a presence in Nasiriya which is why he did not remain there before coming to Australia.  The Tribunal found highly improbable his account of the need to remain there for three months to resolve his late father’s estate.

10. Under any normal circumstances, the Tribunal could well appreciate someone in the applicant’s position would want to be in the same country as the property to be administered under the estate and to deal with, in person, those entitled to a share of the estate.  However, the applicant’s circumstances were such that just over one year earlier he had fled from Iraq to save his life.   Therefore, the Tribunal was sceptical of his evidence that he had to deal with his stepmother in person and could not have dealt with her from Australia by telephone or email or through his younger brother.  When this was put to him, the applicant said that his stepmother and her children would not have been convinced by what his brother said to them. Only when he travelled to Iraq and met his stepmother face-to-face was the problem solved.  In this respect, the applicant said that he wanted to try to solve any dispute without having to go to court.  The Tribunal finds all of these claims unconvincing when considered in the context of the applicant’s claimed circumstances namely, having to flee from his country in late 2011 to save his life.

11. The Tribunal’s concerns were only affirmed and heightened by the applicant’s willingness to return to Iraq a second time and, on this occasion, remain there for almost six months.   The Tribunal can understand the applicant’s fears for his son after learning his son had been attacked and seriously beaten.  While he said that he could not say who was responsible, he did say that the Al Dawa party was linked to gangs that kidnapped and killed people and for which they would not be held accountable.  Again, the applicant spent this relatively lengthy period in Town 3 having chosen not to remain there in 2011 because of the presence of the Al Dawa party in Nasiriya.  Even if the Tribunal was to allow for the applicant wanting to return to Iraq to see his son, it is again highly improbable that he would have stayed in Iraq for a period of some months.  On the applicant’s evidence, his son had and was receiving medical treatment. 

12. The applicant’s stay in Iraq on this occasion was prolonged by his mother’s illness, but, the applicant’s reasons as to why it was necessary for him to remain there on that ground were not persuasive.  He conceded that he had siblings in Iraq and the Tribunal considers they could have provided care to his mother.   To the first Tribunal, the applicant said his siblings had their own families to look after, but, the Tribunal does not accept that this would prevent them from caring for their own mother. Further, although he claimed that he had to be in Iraq to provide care for his mother, she was able to travel out of Iraq to [Country 2] for the purpose of seeking medical treatment.  She made the journey with the applicant’s wife who could also have easily cared for her.  The Tribunal is willing to accept that it may have been difficult to bring a doctor to Town 3 to care for his mother, even though he said a nurse went there to care for his son.  However, the Tribunal does not accept that this would necessitate him being present. 

13. The Tribunal was also incredulous that, in his claimed circumstances, once his wife and mother left for [Country 2], he remained in Town 3.  While he claimed that was because he wanted to find out what happened to his mother in [Country 2], he could easily have learned of that by telephone or email while he was back in Australia.  Overall, the applicant claimed that his mother wanted him to be in Iraq with her while she recovered from her stroke, but, the Tribunal is not persuaded or convinced that the applicant would stay for that reason, in his claimed circumstances of being at risk of harm in Iraq.   

14. When the Tribunal put to him its concern about him staying in Iraq to provide care for both his son and mother and that this could have been done by other family members, the applicant said that there were two people at once with health issues and his mother did not want him to leave her.  He then said that on the second occasion he went to Iraq, had his medication not run out, he would have stayed longer.  He then said that the security situation was deteriorating with ISIL entering the area.  The applicant said that when he was on his way to the airport to leave Iraq and his brother was driving him, they saw a checkpoint far away.  They became afraid and turned back. The applicant said that this delayed his departure for two weeks.  He said that the security situation was not good at all. 

15. The Tribunal finds these claims unpersuasive. On the one hand, the applicant claims that he would have stayed for a longer period had his medication not run out, but, on the other hand, he claims that it was not safe to be in the country.  As discussed above, the Tribunal does not believe that the applicant’s mother’s insistence that he be with her, would make him decide to stay there when, at the same time, he was claiming that he was not safe there.  Overall, the applicant’s willingness to return to Iraq twice and remain there for periods of months, cast significant doubt over his credibility as a witness and his claims to have fled from that country in fear of harm.

16. To the first Tribunal, the applicant said that had he known his visa would be cancelled for returning to Iraq, he would never have made those two visits.  Whether or not the applicant was aware of the risk of his visa being cancelled, the Tribunal does not accept that someone in his claimed circumstances would twice return to the country from which he had fled for his safety and remain there for periods of months. 

17. In the submissions, the representative advances the same reasons as those given to the Tribunal by the applicant for his two visits to Iraq.  The representative advances the same account as the applicant as to what he did when he was there and why he remained for the periods he was there. The representative added that the applicant always covered his face, his brother took him to and from the airport at which he arrived by back roads and, with respect to the first visit, as the eldest son he had to be present at the funeral and the family had to wait until the end of the 40 day mourning period before the estate could be administered.  None of these additional factors and the measures mentioned to conceal his return persuade the Tribunal to believe that someone in the applicant’s claimed circumstances would behave as he did.

    Evidence about where the applicant’s wife and children lived

18. Pursuant to s.424A of the Act, by letter dated 6 December 2019, the Tribunal put to the applicant that when interviewed by the Independent Protection Assessor (‘the Assesor’) on 15 May 2012, the applicant was asked where his wife and children lived after he left Iraq in 2011.  The Tribunal put to the applicant that he was recorded as telling the Assessor that he contacted his brother in Iraq and asked him to see his wife and children to find out whether or not they were safe.  The applicant was recorded as telling the Assessor that his brother had no contact with his family, but, the applicant himself had ‘very recently’ been told that his wife and children had been seen in the town of Ramadi in the north of Iraq.  The Tribunal put to the applicant that this was inconsistent with his evidence to the Tribunal that, after he left Iraq in 2011, his wife and child lived in only two locations, namely, Town 1 and Town 3.

19. In response, by letter dated 20 December 2019, the representative submitted that the applicant was detained from October 2011 until February 2012 and, during that period, had no contact with his family.  Therefore, he would not have known of their whereabouts. He believed that they were missing at the time. The representative referred to a ‘case worker’ assisting the applicant to locate his family while he was in detention, but, he was unable to locate the caseworker once released from detention.  That meant he could not get further information from that person about his family.

20. The representative then submitted that after the applicant left Iraq in 2011 he had limited contact with his family. He depended on his brother for ‘updates’ about where they were and his brother gave him information about that.  The representative then referred to Town 1 and Nasiriyah being Shia dominated areas in the south of Iraq where sectarian violence against Sunnis could occur. The representative then stated as follows (verbatim):

    ‘The city of Ramadi is situated in the ‘Sunni Triangle’, a densely populated region of Iraq where its inhabitants are majority Sunni Muslim Arabs.  His family’s relocation to the north, was a decision taken to remove themselves from danger and to reach safety in order to avoid the risk of sectarian violence that was likely to occur in the southern governates of Iraq in which they were residing. They were terrified and had made the decision to run away themselves without the applicant’s knowledge.

    Ramadi is situated 445 km north of Nasiriya.  Its distance from Nasiriyah is indicative of the hardship experienced by his wife and children to relocate. A journey of such distance required strenuous effort and they endured extreme lengths in order to relocate to safety.’

    The representative submitted that ‘the events in question’ and the applicant’s interview with the Assessor occurred seven years ago.  The representative referred to the applicant’s ‘mental health issues’ making him susceptible to impaired concentration and memory. 

21. In essence, the representative has merely repeated the account that the applicant gave the Assessor that his wife and children, for some period of time, lived in the city of Ramadi.  The representative’s submissions do not specifically address why the applicant did not give that evidence to the Tribunal when asked where his wife and children lived after he left Iraq.   The only purported explanations advanced were that the applicant’s interview with the Assessor and possibly the period of time his wife and children spent in Ramadi, occurred some years ago.  However, the applicant could give the Tribunal an account of events that occurred in 2011 that he claims caused him to leave Iraq.  If it was the case that his wife and children spent time in another city in another part of Iraq, the Tribunal could reasonably expect the applicant to give that evidence at the Tribunal hearing when questioned about where his wife and children lived.

22. The other purported explanation for the applicant’s failure to give the Tribunal that evidence was difficulties with concentration and memory caused by his mental health.  The Tribunal was presented with a number of medical reports about the applicant’s physical and mental health and they are discussed further below in this decision.  In essence, it was claimed that the applicant’s mental state has impaired his memory.  The Tribunal has carefully considered this medical evidence, but, the Tribunal still considers that it could reasonably expect the applicant to tell the Tribunal that his wife and children lived in a city in the north of Iraq in addition to living in Town 1 and Town 3.  The Tribunal considers that his wife and children going to another part of the country is significant, especially when the applicant claimed at the Tribunal hearing, that they constantly suffered discrimination in Town 1 for being Sunni.  The failure on the applicant’s part to tell the Tribunal that his wife and children lived in this other location in Iraq reflected poorly on his credibility.

    Evidence about events that took place when the applicant returned to Iraq in 2014

23. Pursuant to s.424A of the Act, by letter dated 6 December 2019, the Tribunal put to the applicant that, to the first Tribunal, the applicant submitted a report dated 5 May 2015 from a consultant psychiatrist. In his report, the psychiatrist recorded the applicant stating that when he travelled back to Iraq in January 2014, he took his seven-year-old nephew to a shopping centre where his nephew died in an explosion.  The psychiatrist recorded the applicant stating that this incident impacted on his mental health, causing him to have nightmares about his nephew being severely injured and causing him to feel guilty and responsible for that person’s death. 

24. The Tribunal put to the applicant that, at the hearing before this Tribunal, he was questioned closely about events that occurred in Iraq which caused him distress when he returned there in January 2014.  In his evidence, the applicant mentioned his son’s injuries from being attacked just prior to his return and his mother suffering a stroke while he was there. The Tribunal put to the applicant that he made no mention of any other event and, in particular, did not claim to have visited a shopping centre with a nephew who, on that occasion, died in an explosion.

25. In response, by letter dated 20 December 2019, the representative made broadly the same submissions about the applicant’s mental health and the impairment of his memory.  The representative did not specifically state whether or not, when the applicant returned to Iraq in 2014, he went to a shopping centre with a nephew who was killed in an explosion.  However, the Tribunal understood the representative to be claiming that this incident did occur and that it was not mentioned to the Tribunal because of the applicant’s mental health and its effect on his memory.

26. The Tribunal questioned the applicant closely about events that took place on this particular visit to Iraq and considered the applicant to be well able to give evidence about that. The Tribunal does not believe that any impairment of the applicant’s memory would prevent him from telling the Tribunal that, on that occasion, he went to a location with a nephew where an explosion took place and the nephew was killed.  If the applicant could relate an account to the Tribunal about setting up [a business] and the harm he encountered as a result and which caused him to flee from Iraq, he could also be reasonably expected to tell the Tribunal about this incident involving the death of a relative and which, according to a report from a psychiatrist, actually impacted on his mental health and caused him great distress.  The applicant’s failure to advance this claim to the Tribunal again reflected poorly on his credibility.

    Finding on whether there was incorrect information such that there was a ground for cancellation

1. Considered cumulatively, the concerns that the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and that the account he advances about the adverse interest taken in him and his uncle by the Al Dawa party in relation to [a business] they were operating is false.  Therefore, the Tribunal disbelieves the applicant’s claims that people from that party requested him and his uncle to stop operating the [business]; that his uncle was abducted and murdered; that the applicant received a threatening letter and then fled from his native area and Iraq in fear for his safety. 

2. The Tribunal is willing to accept that the applicant and his uncle operated [a business], but, the Tribunal has no credible evidence before it as to what became of that business.  The Tribunal finds that it has no credible evidence as to why the applicant left Iraq.  The Tribunal also finds not credible the applicant’s evidence as to why he returned to Iraq when he did.  Because he is not a witness of truth, the Tribunal disbelieves the applicant’s claim that one of his sons was attacked in Iraq.  Overall, the Tribunal has no credible evidence as to why the applicant twice went back to Iraq.   

3. Further, the Tribunal also finds not credible his account of what he did when he went back, in particular, his claims about staying in a remote location in hiding and what he claims occurred while he was there.  The Tribunal finds that there is no credible evidence about where the applicant lived and what he did on these two occasions he returned to Iraq.  The Tribunal also has no credible evidence as to why the applicant returned to Australia on both occasions and did not remain in Iraq. The Tribunal has no credible evidence as to why the applicant does not want to return to Iraq at present.

4. The Tribunal put to the applicant that it had to decide whether, when he applied for protection, he gave incorrect information.  The Tribunal put to the applicant that, according to the delegate, when he applied for protection he said that he had been threatened in Iraq  and that he had to leave Iraq for his safety.  The Tribunal put to the applicant that according to the delegate and also according to his evidence at the hearing, that threat arose through the [business] that he had been operating, the request from the Al Dawa party that he cease operating the [business] and the threatening letter placed under his door after the abduction and murder of his uncle.  The Tribunal put to the applicant that the delegate alleged that those claims or information were incorrect because the applicant returned to Iraq, after being granted a protection visa, on two occasions. 

5. The Tribunal put to the applicant that his willingness to return to Iraq on two occasions and remain there for periods of three to six months, suggested that he was not genuinely in fear of harm in that country and that his claims about being asked to close the [business], the abduction and murder of his uncle and the threat letter being placed under his door were all false.  In response, the applicant said that he had always told the truth. When he went back to Iraq, he stayed in a remote place and it was like a prison.  The Tribunal put to the applicant that he did say that there was a presence of the Al Dawa party in Nasiriya.  In response, the applicant said that was correct and that party had a presence in every province, but, where he stayed was isolated. Even if the location of the farm in which he stayed was isolated, the Tribunal does not believe that, if he was genuinely in fear of harm, he would be willing to remain there for periods of between three to six months when the agents of harm he fears were located in Nasiriya.  

6. In the submissions, the representative argued that the applicant’s willingness to return to Iraq and remain there for periods between three and six months, was not a sufficient basis for the delegate to find that he gave incorrect information when applying for protection.  The representative argued that the applicant’s return visits to Iraq did not mean he lacked a genuine fear of harm in that country when he applied for protection and while his application was being determined. 

7. The representative argued that this was because the applicant claimed protection, and was granted protection, by the Assessor on various grounds, namely, a fear of harm for being Sunni, his membership of a particular social group of Sunni businessmen living in a Shia dominated area of Iraq as well as adverse political opinions imputed to him by Shia groups.  The representative stated that encompassed within those grounds were the applicant’s claims about him and his wife being detained in 2006, his adverse interactions with the Al Dawa party and the murder of his uncle in relation to the operation of the [business]. With respect to that latter factor, the representative argued that the trading of [product] was something over which sectarian and criminal gangs sought to have control.  Further, the Assessor also took account of sectarian violence in the southern part of Iraq where the applicant lived.

8. The Tribunal rejects these submissions because it was clear from the applicant’s own account advanced to this Tribunal and from the decision of the Assessor, that he fled from Iraq for his safety because he and his uncle refused the request of the Al Dawa party to close their [business], a refusal that caused the murder of his uncle (so he claims) and for a threatening letter to be left at his home.  A fair reading of the decision of the Assessor indicates it is strongly focused on those matters and any discussion about security in Iraq only goes to consideration of why the applicant would not receive protection for the harm from which he fled.

9. For the reasons given above, the Tribunal disbelieves the applicant’s evidence about the events that he claims occurred after he commenced operating this [business] and, for the reasons given above, the Tribunal maintains its finding that he gave incorrect information about that when applying for protection.  The representative referred to an earlier decision of this Tribunal (differently constituted) relating to the cancellation by the Department of a protection visa held by an Iraqi national because he also had gone back to Iraq.  In that case, the national concerned was an employee of the Ministry of the Interior, had worked as a driver for a senior ministry official and the Tribunal decided that such people were at risk of harm, a risk not negated by that applicant’s return visits to Iraq.

10. This Tribunal is not bound by this decision and considers that it is to be distinguished from the applicant’s circumstances in which he has claimed to have fled from Iraq due to a certain series of events which, for the reasons given above, including his willingness to return to Iraq twice, the Tribunal disbelieves.  In the submissions, the representative argued that the fact that the applicant did not suffer harm during his two return visits did not mean that his fear of persecution was not well-founded or genuine when he applied for protection visa. The representative speculated that the applicant did not suffer harm during these visits, possibly, due to luck, the precautions he took or the situation in the country at that time.

11. For the reasons given above, the Tribunal has no credible evidence about what happened when the applicant went back to Iraq.  For the reasons given above, the Tribunal finds that the applicant is not a witness of truth and the account of events on which his flight from Iraq was based is false.   For the reasons given above, the Tribunal finds that the applicant’s willingness to return to Iraq and remain there for the periods he did, demonstrates that he did not (and does not) genuinely fear harm in that country.  The representative also argued that the applicant went back to Iraq for compassionate reasons, concealed his identity while he was there and, therefore, unlike an applicant returning to their country for a holiday or to establish a business, this applicant was not re-availing himself of the protection of Iraq.

12. For the reasons given above, the Tribunal has no credible evidence as to why applicant returned to Iraq and remained there for the periods of those visits.  The Tribunal has no credible evidence as to what the applicant did during those periods. The Tribunal finds that these visits, along with the other credibility concerns discussed above, demonstrate that the applicant did not leave Iraq in 2011 in genuine fear of harm nor did he hold any genuine fear of harm when he applied for protection and up until the present time. 

13. The representative, in the submissions of December 2019, presented judicial dicta about the assessment of credibility including circumstances under which the benefit of the doubt should be afforded to an applicant. The representative argued that minor inconsistencies should not be a basis on which to reject the applicant’s credibility.  The Tribunal has carefully considered those submissions, but finds that the areas of inconsistency in the applicant’s evidence discussed above are significant and by no means minor.  The Tribunal’s concerns about the applicant’s credibility are a firm basis on which to find that the applicant is not a witness of truth and the Tribunal is not in a state of doubt about that.

14. With the submissions, the representative also submitted various documents to corroborate the applicant’s claims.  First, the representative submitted photographs showing a male with stitches in his [limb] and a photograph of an elderly woman in a wheelchair.[4]  Assuming the male shown in these photographs is the applicant’s son who he claims was attacked, the photographs themselves do not persuade the Tribunal to depart from its findings on the applicant’s credibility.  The Tribunal has no credible evidence as to the cause of the injury shown on the person in these photographs.  In the submissions, the representative referred to a video said to also show the injury sustained by the applicant’s son, but, this does not appear on the Department file.

    [4] See folios 26-30 of Department file [number].

15. The Tribunal acknowledges that the applicant’s mother may well have had a stroke, but, the Tribunal has no credible evidence as to when this was and does not believe the applicant’s claims about remaining in Iraq on that basis. Similarly, to the first Tribunal, the representative submitted a death certificate for the applicant’s father (which was not translated).[5]  The Tribunal accepts that the applicant’s father has passed away, but, the Tribunal has no credible evidence as to why the applicant returned to Iraq twice and remained there for the periods of those visits.  The representative also submitted documents showing that the applicant operated [a business] in Iraq, a claim that the Tribunal accepts. [6]  However, for the reasons given above, the Tribunal finds that it has no credible evidence as to what happened to that [business] and why the applicant left Iraq in 2011. 

    [5] See folio 49 of the first Tribunal file.

    [6] See folios 125 - 127 of the Tribunal file, comprising a plan of the [business] and letters from government authorities about approval for the development of the [business] on certain land.

16. The representative also submitted what was said to be a death certificate for the applicant’s uncle, issued [in] August 2011 and according to which he died from [deleted] on that date.[7]  To the first Tribunal, the representative submitted documents related to the attack on the applicant’s son, one being a medical record as to treatment he received and another being a report to the police about the attack.[8]  The Tribunal also records that the applicant is said to have submitted to the Department the letter he claims to have received under his door after his uncle was murdered and which caused the applicant to flee to Town 3.[9]  In addition, the representative also submitted to the first Tribunal a letter from a Sheikh in Basra who stated that the applicant was a Sunni Muslim who had been threatened and displaced by Shia militias since 2011.[10]

    [7] See folio 124 of the Tribunal file.

    [8] See folio 48 of the first Tribunal file.

    [9] See folios 12 -13, 15-19 of Department file [number].

    [10] See folios 49, 54 of the first Tribunal file.

17. The Tribunal has carefully considered the contents of these documents and, while the Tribunal accepts that the applicant is a Sunni Muslim, the documents do not overcome the inconsistency in the applicant’s evidence as discussed above nor the credibility concerns that arise from his willingness to twice go back to the country from which he claims to have fled for his safety. Accordingly, the Tribunal remains of the view that the applicant is not a witness of truth and the Tribunal disbelieves his claims about why he left Iraq in 2011 and that his son was attacked, an incident he says prompted his second return visit to Iraq. Accordingly, the Tribunal does not give evidentiary weight to these documents.

18. For all of these reasons, the Tribunal finds that the applicant did give incorrect information in his protection visa application and, therefore, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

19. 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).

20. 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 content of the genuine document (if any)

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

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

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

    ·     any contribution made by the holder to the community.

21. 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, non-refoulement obligations and any other relevant matters.

22. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). 

23. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

    Factors related to the non-compliance[11]

    [11] Factors related to what was the correct information; what was the content of the genuine document; was the visa grant based wholly or partly on incorrect information; the time elapsed since non-compliance; the circumstances under which non-compliance occurred (how or why did it occur).

24. The applicant was granted a protection visa based on the decision of the Assessor conducting Independent Merits Review and that decision was based on the Assessor’s acceptance of the applicant’s claims about the harm he claims that he and his uncle suffered for operating [a business].  Based on those claims and country information available at that time, the Assessor determined that there was a real chance that the applicant would suffer serious harm in Iraq.  For the reasons given above, the Tribunal disbelieves the applicant’s claims about harm he and his uncle received in relation to that business and, therefore, it would be fair to say that a protection visa was granted to the applicant based wholly or predominantly on incorrect information. The applicant advanced that incorrect information in 2012 to the Assessor and although that was over seven years ago, the applicant still maintained this same account at the hearing before this Tribunal.  Accordingly, while the non-compliance occurred some years ago, the applicant still nevertheless has advanced the same incorrect information to this Tribunal.

25. In terms of the circumstances under which the non-compliance occurred, the Tribunal assumes that the applicant advanced incorrect information to achieve his aim of being able to stay in Australia. However, for the reasons given above, the Tribunal has no credible evidence as to why the applicant left Iraq in 2011, why he did not remain there in 2013 and 2014 and why he does not want to return to there. In that sense, the Tribunal has no credible evidence as to the circumstances under which his non-compliance occurred.  

26. Other factors to be considered include the content of any document in question, but, the Tribunal’s finding on the applicant advancing incorrect information does not relate to any document as such. Another factor is the actual correct ‘information’ or position with respect to the applicant, but, as the Tribunal has already said, it has no credible evidence about that, given that the Tribunal has no credible evidence as to why the applicant stopped living in his country and does not want to return there.

    Factors related to the applicant’s other or subsequent behaviour[12]

    [12] Factors related to the subsequent behaviour of the applicant; other instances of non-compliance and their seriousness.

27. The Tribunal is not aware of any other instances of non-compliance on the part of the applicant. However, while that is the case, for the reasons given above, his non-compliance which has led to the cancellation of his visa is very serious because it goes to the very grounds on which the applicant was granted that visa.

    Factors related to the applicant’s circumstances[13]

    [13] Factors related to the present circumstances of the applicant; international obligations potentially breached; best interests of the child and family unity; hardship caused to the applicant; non-refoulement obligations; consequences of cancellation, rendering the applicant being in Australia unlawfully and subject to detention; any inability to make another visa application without Ministerial intervention; cancellation leading to others losing their visa entitlement and the applicant's contribution to the community.

1. The Tribunal accepts that the applicant and his family are all Sunni Muslims.[14]  The Tribunal accepts as credible the applicant’s claims about harm suffered in Iraq prior to 2011 when he and his uncle began operating [a business].  The Tribunal accepts that, due to the proximity of his native area with the border between Iraq and [Country 3], the applicant was of adverse interest to the former regime of Saddam Hussein.  In that respect, the Tribunal accepts that he was questioned by intelligence services of that regime and, in 1996, was detained for 20 days on suspicion of smuggling people into Iraq.[15]  However, that regime is no longer in power and the applicant is not at risk of harm in view of those past events.

   [14] For the sake of completeness, the Tribunal records that the Department had an ‘International Treaties Obligations Assessment’ undertaken.  In this assessment, the officer stated that the applicant’s wife, in her application for a partner visa, stated that the family were Shias.  The Tribunal did not have access to the source of that information and, therefore, could not be satisfied that the applicant’s wife made that claim. Accordingly, the Tribunal disregards it and finds that the applicant and his family are Sunnis Muslims.  The assessment considered the risk of harm to the applicant on return to Iraq but this was done on the basis that he was a Shia.  Accordingly, this assessment was of no use to the Tribunal.

   [15] These claims were made in the applicant’s statutory declaration made on 16 January 2012.

2. The Tribunal accepts that in January 2006 the applicant and his wife were detained for a few days, his wife maltreated and the pair subjected to threats and demands for money.  The Tribunal accepts that in late 2008 or early 2009 the applicant was approached by members of the Al Dawa party requesting [support].  The Tribunal accepts that the applicant refused that request and a few months later the authorities confiscated some of his land.

3. The next incident of harm the applicant claimed to have suffered when applying for protection comprised the events that followed from April 2011 when the [business] began to operate.  It was these events, according to his protection claims, that caused him to make the decision to leave Iraq and, for that reason, the Tribunal focused on those matters and questioned the applicant closely about them at the Tribunal hearing. For the reasons given above, the Tribunal disbelieves the applicant’s claims about that and, so, the last instance of any harm suffered by the applicant in Iraq is now over ten years ago being the confiscation of some of his land in early 2009.  The Tribunal has no credible evidence that the applicant suffered harm in Iraq after that time.

4. Accordingly, the Tribunal finds that the incident that occurred in 2006 and the confiscation of the applicant’s land in early 2009 are too remote in time to constitute any risk of the applicant suffering harm on those grounds and certainly too remote in time to constitute a real chance of the applicant suffering serious harm or a real risk of the applicant suffering significant harm.  While the Tribunal acknowledges that the confiscation of land arose from the applicant and his uncle meeting with other men to discuss politics, the applicant made clear in his evidence to the Tribunal that once he commenced operating the [business], he ceased attending those groups.

5. The applicant expressed no interest in becoming involved in such groups on return to Iraq and the Tribunal finds that he will not (and will not want to) become involved in such activities.  Because the applicant is not a witness of truth, even if he had advanced such a claim to the Tribunal, it would have been disbelieved.  To the Tribunal, the applicant claimed that his wife and children left Iraq and went to [Country 1] in August 2018.   The applicant claimed that from the time he left Iraq in September 2011 his wife and children were continually subjected to discrimination in Town 1 because they were Sunnis.  The applicant also referred to there being danger where they were living due to crime and security.  

6. However, the applicant also said that, before they went to [Country 1], his wife and children had never been threatened or attacked (except for the attack on his son). Rather, they were just afraid.  Based on the documents submitted to the Tribunal with respect to his wife and children going to [Country 1], the Tribunal will accept that the applicant’s wife and children travelled to that country in August 2018.  Because the applicant is not a witness of truth, the Tribunal disbelieves his claims about them suffering discrimination when they lived in Iraq and the Tribunal finds that it has no credible evidence as to why the applicant’s wife and children left Iraq and applied for refugee status in [Country 1]. 

7. Further, because the applicant is not a witness of truth, the Tribunal also finds that it has no credible evidence as to the whereabouts of the applicant’s wife and children, whether they are still in [Country 1] and their present circumstances. As already stated, the Tribunal has no credible evidence before it that the applicant’s wife and children suffered harm in Iraq.  Therefore, the cancellation of the applicant’s protection visa and his return to Iraq does not adversely affect the unity of his family nor the best interests of his children.  His wife and children could return to Iraq to be with him and thereby unite the family.  Contrary to a claim advanced by the representative in the submissions, the family all reuniting together in Iraq would be in the best interests of the applicant’s children and consistent with their rights under the Convention on the Rights of the Child.

8. The Tribunal asked the applicant what he thought would happen to him if he returned to Iraq.  In response, the applicant said that he was at risk of harm from Shia groups. When asked why Shia groups would harm him now, the applicant said that it was not only him; they hated all Sunnis.  The Tribunal understands that the applicant is a Sunni Arab male.  Arabs make up 75 per cent of Iraq’s population of approximately 39 million.[16] Sunni Muslim Arabs are estimated to comprise 24 per cent of that population, and, so, the Tribunal understands that there are 9 to 10 million Sunni Arabs living in Iraq.[17]  Sunnis live mainly in the west, north and central areas of Iraq, with the Shia population being concentrated in the south and east.[18]  In his protection claims, the applicant indicated that his native town is in Basra province in an area near the border that Iraq shares with [Country 3]. In its country information report on Iraq, the Department of Foreign Affairs and Trade (‘DFAT’) provides a map indicating that the area referred to is inhabited by Sunni Arabs.[19] 

   [16] Department of Foreign Affairs and Trade (‘DFAT’) Country Information Report Iraq 9 October 2018, at 2.10.

   [17] DFAT Country Information Report Iraq 9 October 2018, at 2.10.

   [18] DFAT Country Information Report Iraq 9 October 2018, at 2.12.

   [19] DFAT Country Information Report Iraq 9 October 2018, 1.

9. According to DFAT, the security situation in Iraq is influenced by various factors, the most acute being the actions of remaining fighters from the Islamic State of Iraq and the Levant (‘ISIL’), other extremist fighters and the state sanctioned Popular Mobilisation Forces (‘PMF’s’).[20]  ISIL continues to commit small attacks, mainly on government forces and security personnel at road checkpoints.[21] Security incidents in general have significantly declined across all governates since 2014.[22]  Sunnis report harassment from PMF’s who, in addition, have looted and destroyed Sunni-owned properties following the expulsion of ISIL and, in some areas, prevented displaced Sunnis from returning to their homes.[23] Sunni males trying to flee those areas controlled by ISIL have been targeted by government combined forces.[24]  Away from those areas that were controlled by ISIL, Sunnis have faced harassment and discrimination in terms of the form of ‘more intrusive inspections at checkpoints’ and the provision of ‘poorer quality services in Sunni areas’.[25] 

   [20] DFAT Country Information Report Iraq 9 October 2018, at 2.33.

   [21] DFAT Country Information Report Iraq 9 October 2018, at 2.5.  See also United Kingdom Home Office Country Policy and Information Note Iraq: Security and humanitarian situation Version 5.0 November 2018.  At 2.3.30, the Home Office states that ISIL is confined to small pockets and periodic ‘assymetric’ attacks in areas in the north, east and centre of Iraq, the Home Office naming ‘Anbar, Baghdad, Diyala, Kirkuk, Ninewah and Salah al Din’.

   [22] United Kingdom Home Office Country Policy and Information Note Iraq: Security and humanitarian situation Version 5.0 November 2018, at 2.3.32.

   [23] DFAT Country Information Report Iraq 9 October 2018, at 3.36.

   [24] DFAT Country Information Report Iraq 9 October 2018, at 3.36.

   [25] DFAT Country Information Report Iraq 9 October 2018, at 3.36.

10. DFAT expressed the risk of Sunnis suffering harm in the following terms (verbatim):

    ‘DFAT assesses that, outside areas recently controlled by ISIL, Sunnis face a low risk of societal violence on the basis of their religion. DFAT assesses that Sunnis face a moderate risk of official and societal discrimination in areas where they are a minority. The risk of discrimination varies according to an individual’s local influence and connections.’[26]

    [26] DFAT Country Information Report Iraq 9 October 2018, at 3.37. 

11. In a similar vein, the United Kingdom Home Office states that government forces have abused Sunnis, but, this has mainly occurred in the areas of current or recent ISIL control.[27] In terms of harm from non-state actors, the Home Office states that various of those actors, but, primarily, powerful Shia militias, have violated the human rights of Sunnis in a number of governates including ‘Baghdad, Diyal, Kirkuk and Salah al-Din’.   These areas are all in the north or centre of Iraq and well away from the applicant's native area in the province of Basra.[28]  With respect to the risk of harm to Sunnis in those southern parts of Iraq, the Home Office stated as follows (verbatim):

    ‘There are a few reports that Sunnis experienced human rights abuses at the hands of Shia militia or unknown perpetrators in the southern governates [ the Home Office naming Basra, where Town 1 is located].  However, it does not appear to form part of a consistent or systematic risk to Sunnis.

    In general Sunnis in the southern governates are not subject to treatment which would be persecutory or cause serious harm.’[29] 

    [27] United Kingdom Home Office, Country Policy and Information Note Iraq: Sunni (Arab) Muslims Version 2.0 June 2017, at 2.2.3.

    [28] United Kingdom Home Office, Country Policy and Information Note Iraq: Sunni (Arab) Muslims Version 2.0 June 2017, at 2.2.6.

    [29] United Kingdom Home Office, Country Policy and Information Note Iraq: Sunni (Arab) Muslims Version 2.0 June 2017, at 2.2.9, 2.2.10.

12. The Tribunal put to the applicant that it had examined country information about the treatment of Sunni Muslims in the southern part of Iraq in which his native area of Town 1 was located.  The Tribunal put to the applicant that according to this country information Sunnis in that area could suffer discrimination on the ground of religion.  However, this country information was to the effect that this discrimination was not such that Sunnis were excluded from employment and could not subsist.  In response, the applicant said that ‘they’ hate Sunnis and do not want them in Iraq.  He said that the media did not report the truth and the reality was different from that conveyed in country information. An aggravating factor was the emergence of ‘ISIS’ due to the perception that they were Sunni.[30]  

    [30] The Tribunal refers to this group in this decision as ISIL.

13. The Tribunal then put to the applicant that it was in those parts of Iraq that had been controlled by ISIL where Sunnis were at most risk of suffering serious harm from Shia militias and groups.  This was because of the suspicion that young Sunni men in those areas had been involved with ISIL.  The Tribunal put to the applicant that the part of Iraq where he lived was never controlled by ISIL.  The Tribunal put to the applicant that according to this country information Sunnis lived in that part of Iraq where Town 1 is located and that there had been only an isolated number of attacks on Sunnis in the southern governates.  The Tribunal put to the applicant that, therefore, the risk of him suffering serious harm on return to his native area because he was Sunni was remote.

14. In response, the applicant said that Shias think that Sunnis brought ISIL to Iraq and in his native area, the mosque sheikh was killed. They also killed a friend of his and these people had children.  He asked what would happen to his children and family if he got killed.  The applicant’s responses on these issues do not persuade the Tribunal to depart from the inferences it draws from country information.  The Tribunal finds that the position conveyed in the independent sources of country information on which it relies are to be preferred over the applicant’s broad assertions.   While the applicant claimed that Shias do not like Sunnis and perceived them as being responsible for the emergence of ISIL, country information indicates that in the part of Iraq to which he will return, attacks on Sunnis are rare.

15. For the reasons given above, the Tribunal finds that the risk of the application suffering serious harm and the risk of him suffering significant harm on return to Iraq as a Sunni male is remote.  In the submissions, the representative referred to the DFAT country information assessment on Iraq on which the Tribunal relies in this decision.  The representative has attempted to claim that, based on this report, Sunnis face increasing discrimination and violence including from the PMF’s.  However, the Tribunal has set out above and also cited the relevant parts of the DFAT assessment which indicates that the risk of the applicant suffering serious or significant harm is remote. The representative’s broad assertions are not supported by the DFAT assessment and do not persuade the Tribunal to depart from its view of the risk for the applicant on that ground.

16. The representative claimed that the applicant’s father had links to the Ba’ath party which is a curious claim given the applicant said that under the former regime, he was detained and questioned by intelligence officials of that party.  To the first Tribunal, the applicant said that Sunnis who lived in Town 2 belong to a tribe that supported the former regime, the head of the tribe being a former member of the Ba’ath party.  The Tribunal has set out above the instances of harm it accepts that the applicant suffered in Iraq.  The last incident was now some ten years ago.  The Tribunal has no credible evidence that the applicant has suffered harm since then.  Further, while the representative submitted due to his father’s links to the Ba’ath party, the applicant could suffer discrimination, it is clear from the applicant’s account to the Tribunal that whatever discrimination he encountered in Iraq, he was well able to subsist, even being able to establish and operate [a business].

17. The representative submitted that in recent times there had been protests against the government in Iraq and security forces had committed abuses against participants. The representative referred to reports stating that six people were killed in protests held in Basra and Nasiriya. The applicant has made no claim that he wishes to participate in such protests and the Tribunal finds that the risk of him suffering serious or significant harm on this ground is remote.  It was submitted that a change in leadership could lead to a resurgence of militant groups, harm to the economy, difficulty in getting access to medical services and a reduction of employment opportunities. The Tribunal finds that these submissions are highly speculative and the Tribunal prefers to rely on the country information cited in this decision as being a better basis on which to assess the risk of the applicant suffering serious or significant harm on return to Iraq.

18. As stated above, the representative also mentioned the applicant belonging to a particular social group of Sunni businessmen and the risk of harm that might befall such businessmen who, like the applicant, established and operated ice factories.  For the reasons given above, the Tribunal has no credible evidence that the applicant suffered harm in Iraq for operating the [business] and the Tribunal has no credible evidence as to what happened to that [business].  The applicant did not claim that he would resume operating [a business] on return to Iraq.  He may decide to operate a business, but, given that the Tribunal has no credible evidence that the applicant suffered harm in the past for operating a business, the Tribunal finds that the risk of the applicant suffering serious or significant harm for operating a business on return to Iraq is remote.

19. To the first Tribunal, the representative provided country information comprising a report from DFAT for the purpose of advising people intending to travel to Iraq and the risks they might face.  This report does not equate with proper country information on which the Tribunal can assess the risk of an applicant suffering serious or significant harm. Further, it was submitted in August 2016 and well pre-dates the sources of country information on which the Tribunal relies in this decision.  Similarly, the Assessor in her decision cites country information, but, the Tribunal also considers this information to be of no use given the decision was released in 2012.

100.   Overall, in line with the discussion above, the Tribunal finds that the applicant’s return to Iraq as a Sunni Muslim man from a Shia majority area will not breach Australia’s obligations under international law because the risk of him suffering serious or significant harm on that ground is remote.  Whatever risk may exist of the applicant encountering hardship on these grounds, it in no way amounts to a breach of non-refoulement obligations.  Nor does it outweigh the provision of incorrect information by the applicant when he applied for protection, the basis on which his visa was cancelled, a decision this Tribunal finds to be correct. 

101.   When asked by the Tribunal what he thought would happen to him if he returned to Iraq at the present time, the applicant also said that he had medical conditions and when he was in Iraq there was no medical treatment available for his heart condition. When he needed medication his brother obtained it from [Country 3]. He said that one box of the tablets he needed cost US$500.  He said this happened on his second return to Iraq. 

102.   According to available country information, the right to health care and the maintenance of public health, including through the provision of the means of prevention and treatment, is guaranteed in the Iraq constitution.[31]  In Iraq, there are both public and private hospitals and primary health care is provided in both private and public clinics.[32]  Even so, due to decades of conflict, health services are limited, particularly in areas affected by conflict and those areas with large numbers of internally displaced people.[33]  The Tribunal put to the applicant that with respect to his medical conditions country information indicated that Iraq had a public and private health care system.  The Tribunal put to the applicant that it inferred that on return to his native area in Iraq he would be able to access health care. 

[31] DFAT Country Information Report Iraq 9 October 2018, at 2.19.

[32] DFAT Country Information Report Iraq 9 October 2018, at 2.20.  United Kingdom Home Office Country Policy and Information Note Iraq: Medical and healthcare issues Version 1.0 May 2019 which indicates that there are healthcare facilities in Iraq for diabetes and heart disease, at 13, 17.

[33] DFAT Country Information Report Iraq 9 October 2018, at 2.20.

103.   In response, the applicant said that in reality in Iraq, there is no healthcare at all. His son went to a private hospital for an operation. He said that it was not as though medicines did not enter Iraq just that people in power were corrupt, confiscated the medicines and sold them to Iran and Syria.  He said that if one checked on the Internet information about hospitals could be found showing that they are equipped, but, they were not adequate.  These broad assertions made by the applicant do not persuade the Tribunal that this applicant cannot access healthcare in Iraq for his conditions. Although the Tribunal does not believe that the applicant’s son was attacked as the applicant claimed, the Tribunal has to consider that the applicant himself said that his son could access medical care.

104.   The Tribunal is aware of the country information mentioned that Sunnis may encounter discrimination in Shia majority areas, but, country information does not assert that this entails a denial of medical care.   There is no evidence before the Tribunal that the applicant would be deliberately denied medical care in Iraq.  Therefore, the risk of him suffering serious harm (for a convention reason) or significant harm on this ground is remote.  His assertions that whatever care is available is not adequate, are too broad to persuade the Tribunal that the medical treatment he needs is not available in Iraq.  While the applicant made claims about the medication he needs not being available while he was there and that medication having to be obtained from [Country 3], the Tribunal repeats its finding that he is not a witness of truth and the Tribunal finds these claims to be unreliable.

105.   With the submissions, the representative submitted medical evidence comprising, first, reports from different doctors indicating that the applicant suffers from coronary artery disease, diabetes and rheumatoid arthritis.[34]  With respect to this latter condition, it appears that the applicant has had arthritic difficulty in his hands and feet since he was a child.  These reports indicate that the applicant has undergone treatment in Australia for these conditions including cardiology procedures.  These reports indicate and specify the different types of medication that the applicant is taking. 

[34] See folios 42-47, 53 of the first Tribunal file and folios 103-106, 108-114, 116, 129 of the Tribunal file.

106.   The representative also submitted reports relating to the applicant’s mental health. One such report has been mentioned above, namely, a report from a psychiatrist dated [May] 2015 in which the psychiatrist concluded the applicant had a major depressive disorder and post-traumatic stress disorder arising from the death of his nephew caused by an explosion at a shopping centre to which the applicant had taken that child during his second visit to Iraq.[35] As discussed above, the applicant made no mention of this incident in his evidence to the Tribunal and no satisfactory explanation was advanced for that. Accordingly, the Tribunal disbelieves the applicant’s evidence about that and, consequently, the Tribunal finds it must treat with caution these reports about the applicant’s mental health.

[35] See folio 43 of the first Tribunal file.

107.   The representative also submitted a report dated [November] 2019 from a psychologist who records the applicant reporting to her his fear of returning to Iraq based on what he claims were difficulties he had there.[36]  In this report, the psychologist describes various symptoms that the applicant has reported to her such as sleeping difficulty, a lack of energy, distress and intrusive memories of events that he claims occurred in Iraq.  Based on what the applicant reported to her, the psychologist assessed him as having a major depressive disorder along with residual post-traumatic symptoms.  For the reasons given above, the Tribunal disbelieves the applicant’s claims about harm suffered after he started operating the [business] and the psychologist’s assessment is really based on what he has self-reported to her.

[36] See folios 83-84 of the Tribunal file.

108.   The psychologist stated the applicant would benefit from being reunited with his family.  The Tribunal has above stated that the applicant’s wife and children could return to Iraq for that purpose, there being no credible evidence that they suffered harm in that country when they lived there.  The psychologist also stated that the applicant did not appear to be ‘disabled’ by his mental and emotional symptoms.  She recommended that employment would help restore his sense of hope.  These comments suggest that the applicant is well able to function mentally and, therefore, resume his life in Iraq and seek access to medical treatment he needs.

109.   Finally, the psychologist suggested he take medication, but, only if his symptoms interfered with his ability to function. She suggested that counselling could be offered to him, but, not imposed because of his difficulties relating traumatic experiences in Iraq.  In the Tribunal’s view, the psychologist’s recommendations about further treatment for the applicant’s mental health are somewhat qualified and guarded. The Tribunal does not understand the psychologist to be stating that the applicant is someone in strong need of medication and psychological services for his mental health at present.

110.   The most recent report submitted by the representative is from a doctor who appears to be a general practitioner. The report is dated [December] 2019 and the doctor refers to the applicant having acute mental health stressors for which he sees a psychologist, the Tribunal assuming it is the psychologist referred to above. This doctor refers to the applicant having an episode of memory impairment in 2017 and that this continues although it has slightly improved.  The report is brief and the Tribunal understands the psychologist’s report to be the more comprehensive and accurate assessment of the applicant’s mental state.

111.   The representative submitted that the applicant suffers from the various conditions mentioned above and on return to Iraq he will not be able to receive the medical treatment that he needs.  The representative quoted from the DFAT country information assessment cited in this decision stating that many people in Iraq who need health services do not get access to them.  The Tribunal notes that in this respect DFAT states that this particularly applies to areas of the country affected by conflict and with large numbers of internally displaced people.  The Tribunal does not consider the applicant to come from such a location, given the country information mentioned above.

112.   Further, while the Tribunal does not believe the applicant’s claims about his son being attacked, the applicant himself said that his son was able to receive medical treatment. The family were sufficiently resourced for the applicant’s wife and mother to travel to [Country 2] to seek health treatment there. While the Tribunal finds that the applicant is not a witness of truth, he himself claims that he was able to obtain medication from [Country 3] when he could not obtain it in Iraq.  These submissions do not persuade the Tribunal that the applicant will be unable to access medical treatment he may need in Iraq.

113.   The representative also submitted that the applicant’s medical conditions interfered with his daily cognitive and physical functioning which would also affect his ability to obtain medical treatment, itself, affecting his ability to subsist.  The Tribunal rejects this submission because in the reports provided, notably the report of November 2019 from the psychologist, no claim is made that the applicant cannot go to a hospital or a clinic because of his cognitive and physical functioning. Rather, the reports indicate that, in Australia, he has been able to go to health practitioners for treatment. The Tribunal notes that the psychologist said that his mental health did not affect his ability to function.

114.   The representative also asserted that the applicant would not receive the treatment he needs for his mental health in Iraq. In the submissions, the representative refers to a report about a stigma surrounding mental illness in Iraq and a shortage of psychologists and psychiatrists.  However, as the Tribunal has stated above, the psychologist was somewhat ambiguous about the applicant requiring treatment of this nature.  Further, for the reasons given above, the Tribunal is sceptical about evidence relating to the applicant’s mental health given his failure to relate to the Tribunal an incident he related to a psychiatrist and on which the psychiatrist assessed him as suffering from a major depressive disorder.

115.   The evidence before the Tribunal about the applicant’s mental health or mental state does not demonstrate a need for mental health services on his return to Iraq.  Further, as the psychologist suggests, if he is reunited with his family this will be helpful as will having employment.  The Tribunal has stated above that while Sunnis might suffer discrimination, country information does not go so far as to assert that they are denied employment.

116.   The representative claimed that medication the applicant needs for his heart condition is not available in Iraq. To support that claim the representative submitted a letter from a government department in Basra stating that a particular medication had not been available in the Basra governate for some time.[37] The medication named in this document is not mentioned in any of the medical evidence submitted by the representative to the Tribunal and which lists the medication that the applicant takes. Even if that medication was not available, the representative has not advanced country information or evidence that another type of medication could not be substituted for it and that it could not be obtained by the applicant.

[37] See folios 128-129 of the Tribunal file.

117.   The representative submitted that in a Shia majority area, doctors in that area will prioritise Shias over Sunnis in terms of providing healthcare.  The Tribunal rejects this submission because the representative has not provided any country information that substantiates it.  There is no assertion in the DFAT country information assessment relied on in this decision that Sunnis in Shia majority areas would be treated that way by healthcare practitioners. 

118.   The representative submitted that the applicant’s ability to access medical treatment will be adversely affected if his school-aged children cannot obtain an education as that would affect the family’s ability to subsist.  The Tribunal notes that the representative makes clear only certain of the applicant’s children are of school age and he has older children who could help to support him should he need support.  Accordingly, the Tribunal rejects this submission.

119.   Overall, on this issue of access to medical care, the applicant’s return to Iraq will not breach Australia’s obligations under international law because the risk of him being denied healthcare (and thereby suffering serious harm based on a convention ground or suffering significant harm) is remote.  The Tribunal emphasises that its assessment of this issue does not end there as non-refoulement obligations encompass a risk of harm beyond that which relates to the criteria for a protection visa. In line with the discussion above, on the evidence before the Tribunal, the applicant will be able to access health care in Iraq.  Whatever risk may exist of the applicant encountering hardship in relation to getting access to the medical treatment he needs, including particular medication, the Tribunal is not satisfied that this is of a nature that amounts to a breach of non-refoulement obligations.  The Tribunal is not satisfied that this risk outweighs the provision of incorrect information by the applicant when he applied for protection, the basis on which his visa was cancelled, a decision this Tribunal finds to be correct.

120.   Finally, the representative submitted that the applicant held a well-founded fear of persecution on cumulative grounds made up of being denied employment, being denied access to medical treatment, due to general violence and discrimination based on being Sunni. The Tribunal has examined the risk of the applicant suffering serious harm on the basis of his religion, including in relation to seeking employment, medical treatment and discrimination.  The Tribunal examined the risk of him suffering serious harm due to his religion and in the area of Iraq to which he will return.  For the reasons given above, the Tribunal finds that the risk on these grounds is remote and that is the case whether they are considered separately or cumulatively.

121.   The Tribunal understands that if the applicant’s visa is cancelled he will be held in detention and he would not be able to make another visa application. However, any time spent in detention could be shortened by the applicant choosing to return to his country.  While he may not be able to apply to remain in Australia pending his return to Iraq, this does not count in his favour because the basis on which he was granted a visa to remain in Australia was his provision of incorrect information.  The applicant’s wife and children are not in Australia and, therefore, cancellation of his visa will not cause anyone else to lose their visa entitlement.

122.   The Tribunal also took into consideration the applicant’s contribution to the community.  At the hearing, when asked what he wished to say about that, the applicant said that his medical conditions affected what he could contribute to the community. He said that he tried to begin employment many times but would be dismissed only two weeks later because of his medical conditions.  He said that he had many matters known to Centrelink.  The Tribunal appreciates that the applicant’s medical conditions might restrict what contribution he can make to the community, but, the fact remains that whatever contribution he has made is minimal.

123.   The representative provided a letter dated 26 November 2019 from the chairman of an Islamic community group in Australia.[38] This person stated that he had known the applicant since 2012 and said that the applicant regularly came to Friday prayers until 2015 when he moved out of the area.  Since then the writer has seen the applicant occasionally attending Friday prayers and said that he is not someone who would break the law or be involved in unethical or illegal activities.  The Tribunal has considered this information, but finds that the applicant’s attendance at a mosque in Australia is not a significant contribution to the community here. 

[38] See folio 102 of the Tribunal file.

Formal finding on whether the visa should be cancelled

124.   The Tribunal asked the applicant why his visa should not be cancelled.  In response, the applicant said that when he returned to Iraq it was for humane reasons, his father died and his son was attacked. It would be hard for him to return there now because his wife and children were in [Country 1].  He then said that he could not go back and live in Iraq.  The applicant said that the risk of him suffering serious harm was not remote. He asked what would happen to his family if he died. He felt safe in Australia.  The applicant then said that the government of Iraq was Shia and corrupt.  He referred broadly to the embezzlement of money, people being hungry, the poor being displaced in other countries and suffering from an oppressive regime.  There were killings and kidnappings.

125.   For the reasons given above, the Tribunal is not satisfied with the reasons advanced by the applicant for returning to Iraq.  Similarly, for the reasons given above, the Tribunal has no credible evidence as to why the applicant’s wife and children went to [Country 1] and also as to their current circumstances.  The Tribunal has discussed the applicant’s access to health care in Iraq and is satisfied that this is not a basis on which to find that the visa should not be cancelled.  The Tribunal has assessed above the risk for the applicant as a Sunni Muslim and, notwithstanding his broad claims about corruption, poverty and crime, the Tribunal also is satisfied that his return to Iraq does not breach Australia’s international or non-refoulement obligations.

126.   The Tribunal finds that the applicant did give incorrect information when he applied for protection and the decision to cancel his visa was correct. The Tribunal has carefully considered the various factors to be taken into account in determining whether the visa should be cancelled. For the reasons given above, the Tribunal finds that the applicant’s visa should be cancelled.[39] 

[39] For the sake of completeness, the Tribunal records that the delegate issued a certificate restricting the disclosure of certain documents on Department file [number].  Much of this information amounts to nothing more than administrative records made by the Department that are neither adverse to the applicant nor relevant to the grounds on which this review has been determined. What content in these documents that is relevant to the review is much the same information contained in the delegate’s decision to cancel the visa and which has been raised with the applicant.  Accordingly, there was no need for the Tribunal to raise the certificate issued by the delegate with the applicant.

The Tribunal also records that the delegate issued a certificate restricting the disclosure of certain documents on Department file [number].  Again, much of this information amounted to nothing more than administrative records made by the Department that are neither adverse to the applicant nor relevant to the grounds on which this review has been determined.  Beyond that, the remainder of this information was the record of the interview conducted with the applicant after he first arrived in Australia in 2011.  Whatever content from this record that could be said to be relevant to the grounds on which this review has been determined, merely reflects evidence the applicant gave at later stages of the determination of his protection visa application and also to this Tribunal, about events that he claims occurred in Iraq.  Other parts of this record appear in the decision of the delegate to cancel the applicant’s visa and also in the decision of the Assessor undertaking Independent Merits Review.  For all of these reasons, there was no need to raise the certificate issued by the delegate with the applicant.

CONCLUSIONS

127.   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

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

Paul Millar
Member