1715184 (Refugee)

1715184 (Refugee) [2018] AATA 5535 (3 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715184
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Rodger Shanahan
DATE:3 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 03 December 2018 at 4:17pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect information – voluntary return and lengthy stay in Iraq after visa grant – particular social group – member of Al Shinawa tribe – tribal warfare with politically dominant Farhan tribe – credibility issues – no compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 424AA
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 26 October 2018 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. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the 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. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements. The Tribunal is satisfied that the Notice contained sufficient particulars of the possible non-compliance enabling the applicant to meaningfully respond.
Was there non-compliance as described in the s.107 notice?
The visa holder entered Australia as an illegal maritime arrival [in] October 2010 claiming to be an Iraqi seeking asylum in Australia. He made a request for a refugee status assessment on 21 November 2010 and on 5 May 2011 he applied for an Independent Merits Review. In support of the application the visa holder provided a Statutory Declaration dated 21 November 2010.
In his Statutory Declaration in support of his visa application the visa holder stated:
a.He was a Shi’a Arab of Iraqi citizenship who moved to [Country 1] in 1994 with his family when he was [a child]. His father was having problems with the Iraqi government but didn’t know the exact reason. His father and brother went to Australia by boat to Australia in 1998 and were recognised as refugees. The rest of his family had followed with the exception of him as he was married at the time so could not leave so easily.
b.He married his wife in 1998 (she was Iraqi) and moved back to Iraq in 2003, hoping that the situation there was better. They returned to [Country 1] illegally after two months as he was abducted once, their house was raided another time and members of his extended family were being killed.
c.If he returned to Iraq he would be killed due to a tribal war between his tribe and the Farhan tribe, although he is not sure of the origins of the conflict. He does know that the position of the Farhan tribe has been strengthened because they support particular political parties in Iraq. They are very powerful and have influence all over the country, which means that he could not hide from them.
d.The 2003 incidents that happened to him included being abducted by unknown men as he was [working] in Basra in September. He was blindfolded and beaten and his uncle had to pay [an amount of money] for his release. In October his house was raided by three men, two of whom came into the house and tried to drag him away. His wife screamed which attracted the attention of neighbours and the men ran away. Shortly after he was in his village and recognised one of his attackers as [Mr A], a member of the Farhan tribe. He reported the raid and [Mr A] was sentenced to five years but released after a week because of the links the Farhan tribe has with the government.
e.Shortly after the raid two Ba’thists were murdered and the Farhan tribe blamed his tribe, as some Farhan tribesmen were supporters of the Ba’th Party. In October 2003 after the raid he was at his uncle’s house when two people came up in a vehicle and shot and killed his cousin. The visa holder’s other cousin said it was too dangerous for him to stay there and made arrangements for him to return to [Country 1].
f.His uncle and cousin moved to [another location] but were killed in 2007. Another cousin was killed in February 2010. It was too dangerous for him to return to Iraq as the Farhan tribe was still killing members of his tribe. The Farhans were stronger now as they had aligned themselves with powerful political parties. If he returned to Iraq there would be a real chance of him being killed because he was a member of the al-Shinawa tribe.
g.The Farhan tribe are powerful all over the country and have links with political parties and the government. They would find him wherever he went in Iraq.
In his application Form 866, Application for a Protection (Class XA) visa the visa holder provided the following information
a.Question 41. I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries). Iraq
b.Question 42. Why did you leave that country? Please refer to the RSA lodged to DIAC, in particular the statement of claims attached to the RSA form. This referred to the statutory declaration signed on 21 November 2010 as part of your Refugee Status Assessment (RSA) submission. In the statement of claims the visa holder referred to, he stated: “We lasted two months in Iraq between Sept and Oct 2003. I was abducted once and our house was raided another time. Members of my extended family were also being killed. We were forced to go back to [Country 1] to save our lives. We have lived there illegally.”
c.What do you fear may happen to you if you go back to that country? Please refer to the RSA lodged to DIAC, in particular the statement of claims attached to the RSA form. In the statement of claims the visa holder referred to, he stated: “I cannot return to Iraq because I will be killed due to a tribal war between my tribe and the Farhan tribe (particular social group). I am not sure of the exact reasons why this war arose or why it continues. I am very affected by this war, though I don't know the reasons for it. In recent times I am aware of the position of the Farhan tribe having been strengthened because they support particular political parties in Iraq. They are very powerful, have influence all over the country and I could not hide from them no matter where I went in Iraq It is too dangerous for me to return to Iraq as the Farhan tribe is still killing members of my tribe. Their position has been strengthened as they have aligned themselves with powerful political parties. I believe if I return to Iraq I would face a real chance of being killed for reasons of my membership of the Al Shinawa tribe (particular social group).”
d.Question 44 of part C. Who do you think may harm/mistreat you if you go back? Please refer to the RSA lodged to DIAC, in particular the statement of claims attached to the RSA form. In the statement of claims the visa holder referred to, he stated: “I believe if I return to Iraq I would be at a real risk of facing serious harm by the Farhan tribe and the powerful political parties who support them. I am not exactly aware of the identity of those groups, but I am aware of that the Farhan tribe has strong support politically.”
e.Question 45 of part C. Why do you think this will happen to you if you go back? Please refer to the RSA lodged to DIAC, in particular the statement of claims attached to the RSA form. In the statement of claims the visa holder referred to, he stated: “I cannot return to Iraq because I will be killed due to a tribal war between my tribe and the Farhan tribe (particular social group). I am not sure of the exact reasons why this war arose or why it continues. I am very affected by this war, though I don't know the reasons for it. In recent times I am aware of the position of the Farhan tribe having been strengthened because they support particular political parties in Iraq. They are very powerful, have influence all over the country and I could not hide from them no matter where I went in Iraq. It is too dangerous for me to return to Iraq as the Farhan tribe is still killing members of my tribe. Their position has been strengthened as they have aligned themselves with powerful political parties. I believe if I return to Iraq I would face a real chance of being killed for reasons of my membership of the Al Shinawa tribe (particular social group).”
f.Question 46 of part C. Do you think the authorities of that country can and will protect you if you go back? If not, why not? Please refer to the RSA lodged to DIAC, in particular the statement of claims attached to the RSA form. In the statement of claims the visa holder referred to, he stated: “The Farhan tribe has links with government. The government cannot and will not protect me. I reported the raid on my house and a 5 year sentence was imposed on [Mr A], but he only served a week. This is an indication that I will not truly be protected as the government will not sufficiently punish those members of the Farhan tribe who commit violence against us.”
Based on this information and meeting all other relevant criteria the visa holder was granted a class XA subclass 866 Protection visa on 7 March 2012.
[In] June 2012, three months after the grant of the visa holder’s protection visa against Iraq, he departed Australia, returning [in] September 2012. On the incoming passenger card completed on arrival, the visa holder indicated that the country where he spent most time abroad was Iraq.
[In] September 2013 the visa holder departed Australia, returning [in] April 2014. On arrival from a separate travel made by him, [in] February 2015, he was interviewed by a Departmental Airport Inspector when he arrived back in Australia. During this interview, the visa holder presented his Titre De Voyage no. [deleted], which contained an entry stamp to Iraq dated [September] 2013, and a departure stamp dated [April] 2014.
[In] November 2014 the visa holder departed Australia again, returning [in] February 2015. [In] February 2015 he was interviewed by a Departmental Airport Inspector when he arrived back in Australia. During this interview, he presented his Titre De Voyage no. [deleted], which contained an entry stamp to Iraq dated [November] 2014, and a departure stamp dated [February] 2015. During this interview he admitted to travelling to Basra in Iraq, and provided an itinerary for his trip confirming he was in Iraq from [November] 2014 to [February] 2015.
Taking into account his voluntary travel back to Iraq, totalling approximately 13 months from 2012 to 2015, without apparent issue or impediment, suggests the visa holder’s claims provided on the Protection visa application, relating to holding an adverse profile and fear of the Farhan tribe and the political parties who support them, and that he would face harm if he were to return to Iraq, is incorrect.
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 in the following respects regarding his application for a protection visa (detailed discussion of the issues and findings relating to the applicant’s responses follows):
a.At question 41 of the Form 866, where the visa holder claimed to fear returning to Iraq, this is incorrect as he has voluntarily returned to Iraq on three occasions totalling a period of 13 months without incident. This suggests that he did not hold the claimed adverse profile he stated in his protection visa application nor was he of adverse interest to the Farhan tribe.
b.At question 42 of the Form 866, as referred to in a separate statement, that the visa holder was forced to go back to [Country 1] to save their lives is incorrect as he has voluntarily returned to Iraq, the first travel shortly after the grant of his protection visa, on three occasions totalling a period of 13 months without incident. This suggests that he did not hold the claimed adverse profile he stated in his protection visa application.
c.At question 43 of the Form 866, as referred to in a separate statement, that it was too dangerous for the visa holder to return to Iraq as the Farhan tribe is still killing members of his tribe, and that if the visa holder were to return to Iraq he would have a real chance of being killed due to his membership of the Al Shinawa tribe, is incorrect as he has voluntarily returned to Iraq on three occasions totalling a period of 13 months without incident. This suggests that he did not hold the claimed adverse profile he stated in his protection visa application.
d.At question 44 of the Form 866, as referred to in a separate statement, that the visa holder risked facing serious harm from the Farhan tribe if he returned to Iraq, is incorrect as he has returned to Iraq on three occasions totalling a period of 13 months, without incident. This suggests that he did not hold the claimed adverse profile he stated in his protection visa application.
e.At question 45 of the Form 866, as referred to in a separate statement, where the visa holder claimed it was too dangerous for him to return to Iraq as the Farhan tribe is still killing members of his tribe, and that if he were to return to Iraq he would have a real chance of being killed due to his membership of the Al Shinawa tribe, is incorrect as he has returned to Iraq on three occasions totalling a period of 13 months, without incident. I note that the visa holder travelled back to Iraq shortly after the grant of his visa (3 months). The visa holder’s return to Iraq under an identity he claimed is of adverse interest, without issue suggests that he did not hold the claimed adverse profile he stated in his protection visa application.
f.At question 46 of the Form 866, as referred to in a separate statement, where the visa holder claimed the Farhan tribe has links with government, and the government cannot and will not protect me, is incorrect as he has returned to Iraq on three occasions totalling a period of 13 months without incident.
Discussion at Hearing
The visa holder was asked if he knew everything in his response to the Notice of Intention to Cancel protection Visa and that it was true and correct, and he claimed that there may be errors as he didn’t say everything that was put down. It was put to him that he signed it, and he claimed that the previous agent mostly spoke to him in English with some Lebanese, and he didn’t understand everything in the response. Asked if the response was interpreted to him before he signed it, and he claimed that it wasn’t. He agreed that he signed it without him understanding it as it was read to him in English.
He was asked if he had made an official complaint about the previous adviser and he said that he hadn’t. It was put to him that it was a serious issue if he had been made to sign a document that he didn’t understand, so the Tribunal assumed that if he had been made to sign an incorrect document he would have sought legal redress or at least brought his actions to light so he didn’t do this to other people. He claimed the adviser said he could come back and amend it if he wanted, but he didn’t. The visa holder then clarified that the person wasn’t speaking in English, but was doing it in broken Arabic. He was asked the name of the adviser but he claimed he had forgotten it.
Her was asked to clarify whether the adviser read the document to him in Arabic, and he claimed the person spoke in Arabic but he wasn’t interpreting properly. He signed because he didn’t have much time and had no choice. Asked what bits were incorrect, he claimed he said different stuff and the translation wasn’t accurate. He was told that he had to be specific, as the tribunal had to assess his credibility. It was reasonable that if he claimed incorrect information had been submitted, he would know what the incorrect facts were, and what the true facts were.
He claimed that the truth was that when his children received the visa he went there, and he argued with his wife and she left him with the children. He told this to the consulate in [Country 1] as well. He could not recall what else was in the letter. It was put to him that if he believed that there was incorrect information he would have noted this prior to the hearing and advised the Tribunal. Asked if the point he made was the only error, he claimed that it was only for the children to enter Iraq.
Asked about his visits to the psychologists, he claimed he had stopped seeing her but couldn’t recall when he stopped. He thought it was last year but thought he had seen her five or six times – he had seen a lot of doctors. He used to go to a psychologist in [Suburb 1] but couldn’t remember their name. Asked to clarify whether it was a psychologist or psychiatrist, he claimed he couldn’t remember. The adviser said they could get a document from the doctor. He was asked what the source of the documents relating to the tribes in Iraq was, the adviser said that they were Arabic online sources done with online translations.
He claimed that he came to Australia because he was in danger in Iraq. Asked why he returned to Iraq on two occasions (rather than three) even though he claimed that he would be killed if he returned there, he claimed that he was forced to return. He didn’t enter Iraq, but went to [Country 1]. He was asked to confirm if he went to Iraq and he agreed that he had – he was asked to confine himself to entering Iraq.
He claimed that he did this as a sacrifice for his children as they had no one and he had to check on them. [His sons] were with his [uncle] in [Amara]. He stayed with [his uncle] for six months. They began staying with him in 2013 but couldn’t remember when exactly as he couldn’t remember dates. It was put to him that it was important to remember dates and it was reasonable to believe that he would have tried to sort this ut before he came to the Tribunal. He claimed that his memory was really bad these days and he couldn’t remember.

He took his children to [his uncle] from [Country 1] when he returned in 2013. He used his travel document and the children used their Iraqi passports. The children had been with their mother in [Country 1]. Her brother had [assaulted] his brother [in] Australia and had been sentenced to [jail]. Since then her father provoked problems between his wife and the visa holder. This [assault] occurred in 2007 and his brother was jailed in 2012. The problems with his wife began in 2007 but got much worse in 2012.
His wife refused to come to Australia, and kept the [girls] with her. This was in 2013. She said she was going to the market with the [girls] and the boys were with him at home. This was in mid-morning in 2013 and he thought it was in summer. He waited for her and then began to call her and until today he knew nothing about his girls. He contacted the authorities but had heard nothing from his wife or his girls. He doesn’t have any contact with his parents-in-law in Australia.
He had to return to Australia and had to take them to Iraq as he knew no one in [Country 1]. Asked why he lived in [Country 1] if he had no family there, he claimed that there was safety in [Country 1]. His sister [was] living there but she was now in Australia. She was a friend of his [wife]. He took his boys to Iraq and stayed with them for eight or nine months. He just stayed with them.
Asked if there were problems with the Farhan tribe in Amara, he claimed that he was in hiding. He didn’t go out much at all. At this point the adviser interjected and said there was a problem with the interpreting. The member told her the words were being clarified and she claimed it was more than once. The adviser was reminded that she was not to try to speak over the top of the member, and that there did not appear to be any problems as far as the member was concerned.
At this point an adjournment was called and the adviser told to adjust her attitude during the break. After the break, the adviser was told the interpreter was experienced and sought clarification if she didn’t understand anything. She was advised about the proper way of raising concerns and advised that she would be given time post-hearing to raise concerns about the interpreting and to provide an alternate interpretation if she believed there were mistakes made.
The visa holder said that during the period he was not with [his uncle] the whole time and he lived in Najaf with a friend and his children for a period. [His uncle] lived in Amara all the time and was still there but he had no problems with the Farhan tribe – he was from a different tribe (the Alami tribe). Asked why someone from the Alam tribe had married into the Shinawa tribe he said it was love from his father and mother.
He could not remember the dates as his memory was not good and would not even remember what he had for breakfast this morning. He was with [his uncle] and went to najaf and then Baghdad. He was with friends in about four places in all. [Details of locations deleted]. He was asked how he could be so specific about street names and numbers yet not know dates. He said that his son fell in this street so he remembered it. He felt dizzy and fell. The visa holder didn’t take him to hospital as he recovered in five minutes. In Najaf he stayed with [name deleted].
When he left in April 2014 his children stayed with his uncle. He returned in November 2014 because of his children – he stayed with them for moral support as they were depressed. He moved to a lot of places and stayed with friends who he trusted. He always takes them wherever he went. He went to Baghdad, Amara and Najaf – he tried to stay in hiding. When he was there nothing happened from the Farhan tribe as he stayed hidden.
It was put to him that they were influential, and he said they were in the political parties, but he didn’t know which ones. It was put to him that if he was afraid of the tribe surely he would want to know what parties they were involved with so he could avoid their rallies or people belonging to the party. He again said he didn’t know what parties.
Asked what started the tribal dispute, he said that the Farhan tribe was with the Ba’th and his father was against the Ba’thists. Two people wer killed in 2003 and this made the dispute worse. Asked why it was still going on 15 years later, he said that the parties were stronger – one had to look at Jaysh al-Mahdi (JAM). Asked what JAM had to do with the Farhan tribe, he said this was just about how strong the parties were.
He was asked why the tribal dispute was still going on 15 years later and hadn’t been resolved earlier. He claimed that his tribe was always against political parties and the Farhans hated his tribe because his father opposed the Ba’thists. He also claimed that people viewed people who returned from overseas like him as agents.
He was asked whether he had divorced his wife and he said that he hadn’t as she left him and he wanted nothing to do with her. It was strange that he hadn’t divorced her given it had been five years and she had left him. He claimed he had divorced her but not officially as he ahd to go to Iraq and enter an office to do this. Asked to clarify this, he claimed one had to go to court to do this officially. It was put to him that there was an Iraqi embassy in Australia that could facilitate this, and he was asked again what steps he had taken.
He said that he hadn’t looked into this. It was put to him that the absence of any moves to divorce his wife raised questions in the Tribunal’s mind as to whether he was actually estranged from his wife. He claimed that it wasn’t important as the first priority was his children. He had asked and been told he had to go to Iraq to do this. People at work told him this – he was asked whether he had spoken to the embassy to clarify procedures and he said that he hadn’t.
When he left Iraq in 2015 his children were left with his uncle in Amara. They stayed with his uncle for another six months and then his wife’s family contacted his uncle and said that if the children were with him then they would kill him and his family. His uncle said he couldn’t bear this responsibility any more and his children left. He was asked why his wife’s family cared and why they waited until late 2015 to do it. he claimed they were waiting for the visa holder to become visible as he was the real target.
Under s 424AA it was put to him that in March 2014 his wife went to board a flight to Australia but they couldn’t as the children didn’t have a valid visa. If she had walked out on him in 2013 he was asked why she was trying to come to Australia with the children in 2014. This raised questions about the true relationship between him and his wife. The adviser asked which children were with the woman and she was advised that the number or identity were not known. The adviser began to talk to the applicant but was not told to do this. She ceased doing so and apologised.
Also under s 424AA it was put to him that his wife and all [children] lodged an application for a combined partner visa (the information was valid as at November 2015 but the date of application was not known). He was asked why the visa application would be made that included the [boys] who he claimed she had walked out on two years earlier.
It was also put to him under s 4242AA that when he was stopped on return to Australia in February 2015 he replied when asked why he had gone to Iraq he stated that he went there to visit his wife and family, yet today he had claimed that his wife had walked out on him and his boys in 2013 and nothing had been heard or seen of her since.
He claimed that he was scared of his wife’s parents because of the killing here. Asked to clarify this, he said that his brother was [injured] not killed. Because he was afraid of them he had to do what they told him, and they told him that he had to bring their daughter to Australia. He was forced to put in an application for them because he was scared of them until now.
He said that he couldn’t recall telling the DIBP authorities that he visited his wife – he might have said that he visited his children.
In his submission for the current hearing he claimed that when he went in November 2014 he said he went there because his uncle had been threatened and had fled and abandoned the children so his children were unaccompanied minors at that stage. Yet today he said he went to his uncle’s house in Amara who was looking after his children and they were with him when he left to return to Australia.
He said that he couldn’t recall what he said but he told the truth. He said that his uncle didn’t want them. It was also put to him that in his response to the Notice, his uncle was looking after his boys and he was comforted with the care he was giving them and had regular contact and was satisfied that they were being looked after. The inconsistencies raised questions about the truthfulness of his claims. He denied saying this and it was put to him that he had made no complaint against his previous adviser and the Tribunal needed to determine his credibility.
The visa holder worked in [a certain role] and had been there for a year and for a year before that with another company. He was not currently receiving any Centrelink benefits. He was targeted in 2003 as they wanted money from him; he was kidnapped and released after a ransom was paid. This was not related to the tribal dispute. The tribal dispute was related to the family of [Mr A] from 2003 when they raided his house.
He left to come to Australia in 2010, possibly in May. Asked why there was a seven year delay after the house raid, he claimed that he stayed in Iraq for two months and then went to [Country 1]. Asked why he didn’t leave [Country 1] for seven years, he claimed that [Country 1] was not for them as they didn’t have residency and there was racism there. Asked why there would be interest in him in Iraq over an event that occurred 15 years earlier, he claimed that his family are considered as agents of the West as they live abroad.
I do not accept that simply having lived abroad would make him considered to be an agent of the West. No country information to support such a claim was provided, and it was put to him that country information indicated people with Western passports who returned to Iraq were well accepted.[1] He was asked if he had country information that supported his claim that they were not. He claimed that it all depended on the parties and tribes and where one would be allowed to return to.
[1] DFAT Country Information Report – Iraq, 9 October 2018, p 30
He was told about the ITAO letter that he had been given the opportunity to comment on previously, and that it found he was not at risk of harm from the Farhan tribe and did not have a genuine subjective fear of harm in Iraq. Thus Australia would not be in breach of its obligations if it were to return him to Iraq. The visa holder had no comments about this.
Between leaving Iraq and arriving in [Country 2] his sons stayed in several places over the three years. His trusted friend was guarding them and he was moving them around. He lived in Najaf.
Asked about the Shinawa tribe in the country information it was put to him that the member could not find any reference to them and they were asked to point it out post-hearing for the member. She was also asked to provide evidence about his medical situation.
Analysis
Some time was spent ascertaining from the applicant whether everything in his response to the Notice was true and correct. He variously claimed that he signed it without knowing what was in it as his adviser spoke in English and with some Lebanese – he later said that the adviser spoke in Arabic but didn’t interpret properly. The applicant was unable to say what aspects were incorrect when asked. He also claimed that he couldn’t remember the name of the adviser, nor had he made any formal complaint against him. Given the vagueness of the claim and the lack of any formal complaint being made, I am not satisfied that an adviser misrepresented his claims.
I have also taken into account a report from a psychologist provided by the applicant prior to hearing (folio 110) but lend it little weight. Much of the report is based on self-reporting about events that I have found to have been fabricated. Indeed, the report states that the symptoms of Post-Traumatic Stress Disorder and major depression ‘directly relates to the traumatic loss of his children three years ago when his wife left him in [Country 1] with his [daughters] and returned to Iraq without any notice’. I have found this account to have been fabricated by the applicant.
I also note that the diagnosis of the applicant’s poor memory is based on the self-reporting of the applicant, whose credibility I have found to be lacking. I further note that the psychologist notes memory loss and disassociation are consistent with his acceptance of the applicant’s traumatic experiences; experiences that I have found to have been fabricated. For these reasons I do not give much weight to the psychologist’s report of memory loss as a reason for the inconsistencies exhibited by the applicant in his evidence.
There is no indication of how long he was seeing the psychologist for, prior to the report being written. The applicant thought he had seen her five or six times. The report was also written over a year ago, with no indication that any follow-up counselling has been required or provided. The adviser said at hearing that they would get a document from the doctor he claimed to have been seeing in [Suburb 1], yet none was provided post-hearing.
I also do not accept that any of the inconsistencies could be explained as a consequence of poor interpreting. The member understood the nature of the responses, which were generally indicated an understanding of the question that was asked. Where there were any issues relating to dialect, the interpreter dealt with them and clarified the meaning. The adviser was given the opportunity post-hearing to provide evidence that interpreting had bene carried out incorrectly and other than a generalised claim (folio 150) post-hearing she failed to provide any such specific evidence.
I do not accept his claim that in 2013 whilst he was in [Country 1], his wife went with the [girls] to the market and never returned, leaving him to look after the [boys] (whom he had to move and place in his uncle’s care in Iraq) and that he had never heard from his wife again. There are several reasons why I find this claim to have been fabricated:
a.Despite having walked out on her husband and [sons], a combined partner visa was lodged for the wife and [all children] in November 2015 some two years after she had allegedly walked out on him. I do not accept that he did this because his parents-in-law (of whom he was afraid) told them to do this as he had never raised this issue previously;
b.Despite having walked out on them his wife tried to board a plane to come to Australia in March 2014 (with some of the children) but was refused;
c.When stopped at the airport on return to Australia in February 2015 he told the authorities that he had gone to Iraq to visit his wife and children. I do not accept that he may have told the authorities that he just visited his children as this relies on his oral evidence which I have found lacks credibility;
d.Despite his wife having allegedly abandoned he and his [sons] in 2013, he had made no effort to divorce his wife. I do not accept that this was because he had to go to Iraq to do this – this requirement was based on hearsay rather than any effort to ask the embassy in Australia, or to even institute proceedings while he was in Iraq after she had left him;
e.He had previously told the Australian authorities about the status of his sons that variously:
i.In November 2014 he went to Iraq because his uncle had been threatened and left, abandoning the boys who were as a result unaccompanied minors;
ii.He went to Iraq (in November 2014) to see his children who were being looked after by his uncle and they were with his uncle when he left to return to Australia;
iii.His uncle didn’t want them (the boys); and
iv.He was comforted by the care his uncle was giving the boys, had regular contact and was satisfied they were being looked after.
Because I have not accepted the truthfulness of the claim that the applicant’s wife walked out on him in [Country 1] in 2013 leaving him with the [boys], or that his boys were also abandoned by his uncle, it follows that he was not forced to return to Iraq to look after the welfare needs of his abandoned sons.
Such is the lack of credibility displayed by the applicant relating to the alleged walkout by his wife and the consequent situation of his sons in Iraq, that I also do not accept that there was a tribal dispute between the Farhan tribe and the applicant’s tribe and that the applicant would be targeted as a result if he returned to Iraq. Nor do I accept that he was ever abducted while [at work], beaten and ransomed, nor that his house was raided by a member of the Farhan tribe, or that one of his cousin’s was shot and killed. These claims all rely on his oral evidence, which I have found lacks credibility.
Country information regarding the identity of the tribes in question and any evidence of a dispute between the two was requested. Some Arabic-language websites translated via Google were provided (folios 90-108) that indicated the presence of Farhan tribe, but there was not any country information that supported talk of an inter-tribal dispute.
Post-hearing the adviser provided a copy of the original decision in which the member described (folio 141) the evidence of his tribal affiliation as ‘vague and unconvincing’ and noted an inconsistency with the applicant’s father’s claim that he and his son were being targeted because of ‘Owaid’ tribal revenge. This does nothing to Iessen my concerns about the veracity of his claim to have been a member of the al-Shenawa tribe. I am also not convinced as to the reasons why a tribal dispute would continue for 15 years without any mediation being carried out or why the applicant would be singled out simply because his father had allegedly been with the Ba’th party.
Conclusion on non-compliance
I am satisfied that the applicant fabricated his claims regarding being targeted because of an inter-tribe dispute between the al-Shenawa and Farhan tribes in which members of the stronger Farhan tribe were killing members of his weaker Shenawa tribe, that he was abducted, blindfolded and beaten in 2003, or that his house was raided and there was an attempted abduction of him. As a consequence I am satisfied that he was not of any interest to any member of the Farhan tribe at the time he left Iraq and when he made the claim for protection.
The fact that he has returned to Iraq on two occasions for an extended period of time and faced no difficulties indicates that he is of no interest to the Farhan tribe or anyone else since he left Iraq. I do not accept that he was able to avoid persecution by constantly moving while there. Not only does this rely entirely on his oral evidence, which I have found to lack credibility, he has also been inconsistent with respect to his sons’ circumstances with respect to his uncle as I have outlined in sub-paragraph 57 e (and hence the need to move them after they had been ‘abandoned’ by his uncle.
I do not accept that he was forced to return to Iraq to look after his [sons] because his wife had walked out on him with his [daughters] in 2013. There were many inconsistencies in this and related claims and have found the account to have been fabricated. Given these findings, it follows that the applicant’s claims regarding adverse interest being shown in him prior to seeking protection in Australia have been fabricated.

For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice, with the exception of the particularised concerns relating to Questions 41, 42, 43, 44, 45 and 46 where it was alleged that he had returned to Iraq on three occasions, when in fact he had returned to Iraq on two occasions only.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
a.the correct information
The correct information is that at the time of lodging the application for a protection visa, the applicant was not, and continues not to be wanted by any member of the Farhan tribe in Iraq. The Tribunal considers the provision of incorrect information when applying for a protection visa to be serious and goes to the integrity of the migration program. The Tribunal gives significant weight to the fact that the applicant has provided incorrect information when he applied for a protection visa.
a.the content of the genuine document (if any)
b.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 Tribunal is satisfied that the decision to grant the applicant a protection visa was based on findings that there was a real chance that the applicant would suffer serious harm because he was wanted by members of the Farhan tribe.
For the stated reasons, the Tribunal has found that the applicant is not, and never has been wanted by the Farhan tribe and is able to travel to and reside in Iraq without there being a real chance of suffering serious harm. The Tribunal therefore finds that the decision to grant the applicant a protection visa was wholly or partly based on the incorrect information that the applicant provided in the application for a protection visa.
a.the circumstances in which the non-compliance occurred
The Tribunal considers that the applicant has knowingly provided incorrect information to the Department with respect to his fear of returning to Iraq as part of his protection visa application for the purpose of gaining a visa. He continued to provide incorrect information when he responded to the Notice of Intention to Consider Cancellation and continued to assert that he feared serious harm from the Farhan tribe if he returned to Iraq.
a.the present circumstances of the visa holder
Although he has family members here in Australia, the applicant’s sister, wife and [children] live in Iraq and his decision to travel back to Iraq on two occasions to visit his family indicates that he remains close to them. Whilst he has claimed that his wife walked out on him taking his [girls] with her, for reasons previously noted I have found this claim to have been fabricated. [His] sons have travelled to [Country 2] and subsequently applied for asylum.
The applicant claimed to have been working [for] the past two years for two different companies. Whilst he has some family roots here, he does not speak English and he has most of his close family in Iraq. I do not accept that the applicant does not have anyone in Iraq to provide him with adequate support to subsist (folio 148 – post-hearing statement). The applicant claimed that he stayed at his uncle’s house and a network of friends’ houses to avoid detection. This would indicate a familial and friendship support network in several parts of Iraq. His employment prospects would be the same as for anyone else of his education level.
On the face of it, given he has not contributed significantly to the Australian community, few people nor any Australian organisations will be disrupted as a consequence of his departure.
a.the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant has maintained that he is wanted by the Farhan tribe in Iraq.
a.any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal in relation to any other instances of non-compliance known to the Minister. The Tribunal gives this consideration some weight.
a.the time that has elapsed since the non-compliance
The original non-compliance dates from March 2012. The Tribunal does not consider this period to be of such significance to mean that the visa should not be cancelled.
a.any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal in relation to any breaches of the law or any other instances of non-compliance. The Tribunal gives this consideration some weight.
a.any contribution made by the holder to the community.
The applicant has not worked for the last two years. His contribution to the broader Australian community has been minor, and is not of such significance that the visa should not be cancelled.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Australia’s International Obligations
The Tribunal has not accepted that the applicant is wanted by members of the Farhan tribe in Iraq or that there is a real chance that he would face serious harm on return to Iraq. An ITOA was completed, the applicant having been given the opportunity to submit information to inform the ITOA, and the assessment determined that there was not a real chance that the applicant would be persecuted for reason of his religion if removed from Australia to Iraq. He made no comment when the findings of the ITOA were put to him during the hearing.
I note that the applicant has returned from Australia on two occasions to Iraq for a period of more than a year in total. The applicant was willing to visit the country to see family members, had no difficulty entering or leaving the country and experienced no problems while he was there. I do not accept that this was because he moved constantly and kept a very low profile.
The ITOA was completed in February 2017 and found that non-refoulement obligations were not engaged in the applicant’s case. I am satisfied that the findings of the ITOA therefore remain current. I have taken into account the adviser’s post-hearing submission regarding the ITOA but lend the information contained therein little weight.
Part of the concern raised by the adviser related to inadequate health care, and this was expanded in a pre-hearing submission (folio 132). I give little weight to the claim that there are psychological impediments to the applicant’s return to Iraq given I have already indicated that the psychologist has based their assessment in whole, or in part on accepting that the applicant experienced traumatic incidents that I have found to have been fabricated.
In addition to this, I lend little weight to the Australian psychologist’s claims that the applicant needs long term treatment that he would be unable to access in Iraq. The psychologist has not referenced the source of their belief that the required facilities or treatment in Iraq are unavailable, as well as noting that the applicant was receiving care and reviews by a psychiatrist in Sydney although the applicant never provided any evidence that this was the case despite being given the opportunity to do so.
The Tribunal considers that the applicant’s willingness to return to Iraq demonstrated that he does not have any subjective fear of harm about returning to Iraq.
CONCLUDING PARAGRAPHS
The Tribunal is of the view that the applicant has fabricated his claims regarding persecution he allegedly suffered in Iraq, either at the hands of a ‘rival’ tribe or because of marital difficulties. Those areas in his profile where I was able to lend some weight in the applicant’s favour regarding the cancellation of his visa however, were insufficient to outweigh the concerns regarding the applicant’s willingness to fabricate claims in order to be granted a protection visa.
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Rodger Shanahan
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)      purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
105Particulars of incorrect answers to be given
(1)If a non‑citizen becomes aware that:
(a)      an answer given or provided in his or her application form; or
(b)     an answer given in his or her passenger card; or
(c)      information given by him or her under section 104 about the form or card; or
(d)     a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2)Subsection (1) applies despite the grant of any visa.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)      giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)      visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2018] AATA 5535

3 December 2018

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