1716958 (Refugee)

1716958 (Refugee) [2019] AATA 6438 (20 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716958
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Louise Nicholls
DATE:20 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 20 September 2019 at 10:44am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect information in protection application – religion and imputed political opinion – harassment, threats and attacks by militias for selling alcohol – voluntary return and extended stay in Iraq, initially to see sick child – wife’s depression and suicide attempt – not selling alcohol at this time – no fear of harm by authorities – information in application not incorrect at time of application – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
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

The applicant for review is [age] years of age. He is a citizen of Iraq. He arrived in Australia by boat as an unauthorised maritime arrival [in] May 2011. He was granted a protection visa on 8 September 2011.
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) on 12 July 2017.
The delegate cancelled the visa on the basis that the applicant had provided incorrect information when he applied for his protection visa. The applicant answered a series of questions in his application for a protection visa and in his supporting statutory declaration in which he claimed he feared returning to Iraq for reasons of his imputed adverse political profile.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 6 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicant gave evidence about his background, his travel to Australia and his current circumstances. He also gave evidence in relation to the grounds of cancellation set out in the delegate’s decision and matters relevant to the possible exercise of discretion. The applicant was given time following the hearing to make further submissions.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Evidentiary material
The Tribunal has before it three Departmental files. It also has the oral evidence of the applicant, his representative’s submissions and documents provided to the Tribunal.
The Departmental files contain some documents which are relevant to the consideration of cancellation, including:
Department’s cancellation file [File number]
·Scanned copy of biodata pages of applicant’s Republic of Iraq passport [number] issued [in] 2016.
·Scanned copy of Australian Titre De Voyage issued [in] 2012.
·DIBP Inspectors Report Sydney Kingsford Smith airport – [April] 2016.
·Notice of Intention to Consider Cancellation (NOICC) of the applicant’s Protection (Class XA) (Subclass 866) visa – 28 February 2017.
·Photocopy of a notification of refusal of the applicant’s wife’s application for a Refugee and Humanitarian (Class XB) visa- 24 October 2013.
·Medical report by Dr [A], clinical psychologist – [March] 2017.
·Translated letter from Ministry of Health Basra Department of Health – medical report attesting to admission of [Ms B] [in] January 2013, translated [in] March 2017.
·Copy of extract of death certificate (and translation) – [Ms B] [in] June 2014, Republic of Iraq Ministry of Health – [March] 2017.
·Applicant’s submissions in response to the NOICC (undated).
·Applicant’s International Treaties Obligations Assessment (ITOA) – 10 April 2017.
·Delegate’s cancellation decision dated 12 July 2017.
Department’s protection visa file [number]
·Applicant’s request for a Protection Obligations Determination (POD) made on 12 June 2011.
·Statutory declaration made by the applicant on 12 June 2011.
·Copy of Iraqi citizenship card (front and back).
·Boat Coordination Unit interview – 12 May 2011.
·Decision and notification of Protection Obligations Evaluation Outcome – 25 July 2011.
·Application for a protection visa (Form 866) 26 August 2011.
Department’s humanitarian visa file (applicant’s wife and family) [number]
·Offshore Humanitarian Visa Application Form 842 made by [the applicant’s wife] - [May] 2012.
·Translated extract of marriage certificate for [the applicant’s wife] and applicant.
·Copy of applicant’s Australian visa (Titre de voyage) – [2011].
·Notification of refusal of application for a Refugee and Humanitarian (Class XB) visa (applicant’s wife and children) – 24 October 2013.
Tribunal file
·Application for review – 03 August 2017.
·Copy of delegate’s cancellation decision – 12 July 2017.
·Written submissions made by the applicant – 06 December 2018.
·Medical report by Dr [A], clinical psychologist – [November] 2018.
·Post hearing submissions by applicant’s representative – 19 December 2018.
Background
The applicant gave evidence at the Tribunal hearing that he is [age] years of age and was born in Basra[1], in Iraq. He is a Shia Muslim. His parents have passed away and he has one [sibling] living in Karbala, Iraq. He married in 1992 and he and his wife have four surviving children. One of his daughters passed away in June 2014.
[1] Sometimes referred to as Basrah or Al Basrah.
The applicant attended school in Basra and finished his intermediate level. He then attended teacher’s college but could not finish his studies. He left college and worked in a [store] in Basra for three to four years. He completed his national military service then returned to work in retail.
The applicant’s wife and children are living in Basra. The applicant’s eldest son is [age] years old and has opened a [shop] with a [recreational facility] and the money from that business supports the family in Basra. The younger three children are attending school.
The applicant arrived in Australia by boat in 2011. He initially took a flight from Baghdad to [a second country] and then travelled by boat to Australia. The applicant claimed he left Iraq because he was in fear of his life and his aunt introduced him to someone who organised his travel to Australia.
CONSIDERATION
The delegate issued the NOICC on 28 February 2017 and cancelled the applicant’s protection visa on 12 July 2017.
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice (the NOICC), being the manner particularised in the notice, and if so, whether the visa should be cancelled.
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.
Has the delegate reached the requisite state of mind to give the applicant the s.107 notice?
Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). If a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.
The Tribunal has considered the terms of the s.107 notice given to the applicant and the language used by the delegate to inform the applicant of his intention to consider cancellation, subject to the applicant’s response to that notice. It is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The NOICC sets out relevant evidence before the Department regarding the grant of a protection visa, evidence regarding the applicant’s return to Iraq and the particulars of non-compliance with s.101(b) of the Act.
Evidence before the Department relevant to the applicant’s protection claims
The applicant attended an entry interview in which he was asked certain questions. The delegate extracted information from that interview and summarised it in the NOICC.
The applicant attended a Protection Obligations Determination interview and as part of this process he submitted a statutory declaration setting out his claims for protection made on 12 June 2011.
The applicant referred to this statement in his answers to a series of questions in Form 866 application for protection. That is, in answers to questions 42, 43,44 and 46.
The delegate extracted the information set out in the applicant’s statutory declaration as follows:
"In Saddam’s time it was legal to sell alcohol as long as a Christian owned the shop. The business did well. Iraqis, whether Muslim or otherwise, liked to drink alcohol. However there were problems even then with people who opposed our shop. These were Al Sadr followers. They blew the shop up in 1999."
"The Islamic militias then started to emerge into prominence. The main militia were the Al Mahdi Army and Al Badr Forces."
"They promoted a fundamentalist Islamic approach. They were opposed to drinking alcohol."
"We started supplying special customers. We had a large [vehicle]. We covered the stock with a blanket."
"We received direct threats from people I know. One of them is called [Mr C] and the other is [name] was a member of the Council of the Municipality. I knew that both these men were members of the Al Badr Forces which follows Iran's philosophy."
"In the beginning they spoke directly to me. They told me they knew we were selling alcohol and that it is forbidden. I denied this but they said they had been informed we were selling and that I was lying to them. They said if we receive this kind of information about people doing such things we will kill them."
"After two days one of my daughters, [Miss B], [age] years old was at school. On her way home a man approached her and gave her a letter to give to me. From her description of the man I knew it was [Mr C]."
"She gave me the letter. I read it. There was a threat which said we warned you in the way of [name] and this is the final warning in the way of [name]. We are going to kill you.”
"Two days later I went to [location] at about eight in the morning. My wife called me. She was hysterical. She told me [name] had been murdered, shot"
"I knew immediately what had happened I told her to get the children and to go to her sister's home straight away. She told me to not come back to our house. It was too dangerous."
"Two days later I travelled to Baghdad. My cousin arranged for me to flee the country."
Evidence regarding return to Iraq after the grant of the applicant’s protection visa
The delegate noted that the Department had evidence that the applicant had returned to Iraq and lived there for over 37 months, departing Australia [in] February 2012 [sic][2] and returning to Australia [in] April 2016.
[2] The movement records and evidence taken from the applicant’s travel documents show the date of departure was [February] 2013
The delegate noted evidence held by the Department which included:
·The applicant’s Iraqi passport No [number] issued [in] 2016 in Basra.
·Iraqi entry stamp in the applicant’s Australian titre de voyage No [number].
·Iraqi exit stamp with the date [March] 2016 located in the applicant’s Iraqi passport No [number].
·Outgoing Australian passenger cards which stated the country where he would spend the most time was Iraq.
·Interview with Border Force officer at Sydney Kingsford Smith in which the applicant stated he had been living in Iraq.
What were the particulars of non-compliance set out in the notice?
The delegate noted in the NOICC that the applicant’s protection visa was granted on 8 September 2011 on the basis that the applicant satisfied the Minister that he engaged Australia’s protection obligations.
The applicant’s claims for protection, as summarised by the delegate, were that he could not return to Iraq due to a fear of being harmed by militia groups, such as the Mahdi Army and the Badr forces. He claimed these groups wished to cause him harm because he and his friend owned and operated an alcohol business in Basra, Iraq, which was considered forbidden by the militia. As a result of his continued business the militias killed his friend and threatened him. These claims were central to the determination that he was a person to whom Australia has protection obligations.
On 25 July 2011, a Protection Obligations Evaluation (POE) outcome found the applicant met the definition of a refugee. It was found that his claims amounted to persecution and after he was interviewed no credibility issues arose from his statement or oral presentation at his interview. The applicant claimed he would be killed by armed militia groups for selling alcohol. The protection delegate referred to the UNHCR Eligibility Guidelines for Assessing International Protection of Iraqi asylum seekers and found that the applicant fell within one of the vulnerable groups, namely, persons accused of un-Islamic behaviour. UNHCR specifically recognised Basra as an area of concern for these targeted attacks. Therefore, through his vocation of selling alcohol, he had achieved a profile of someone who could attract the adverse attention of armed Islamic fundamentalists.
The delegate considered that the conclusion that the applicant held an adverse imputed political profile has been refuted by his subsequent actions since the grant of his protection visa and the evidence held by the Department. Had the delegate held this evidence at the time of his assessment they would not have found him to be a person to whom Australia protection obligations. The delegate put it to the applicant that his statements in support of his protection visa application were incorrect. This was due to overwhelming evidence showing that he had returned to and lived in Iraq for an extended period of 37 months without harm befalling him following the grant of his protection visa. Therefore the delegate put it to him that he did not hold an adverse imputed political profile and did not hold one at the time of his protection visa application.
The delegate put it to the applicant in the NOICC that he had not complied with s.101(b) of the Act in regard to answers he provided in his statutory declaration dated 12 June 2011 as well as the answers he provided in his Form 866 application for a protection visa.
Specifically, the delegate found the following answers did not comply with s.101(b):
·At question 41 of his protection visa application, where it states “I am seeking protection in Australia so that I do not have to go back to” he answered “Iraq”. This is considered incorrect as evidence held by the Department indicated the applicant returned to Basra, Iraq for an extended period totalling 37 months following the grant of his protection visa. As such he did not require Australia’s protection obligations in regard to Iraq as a person who held an adverse imputed political profile.
·At question 42 of his protection visa application, which asks “Why did you leave that country?” he answered “please refer to the POD lodged to DIAC, in particular, the statement of claims attached to the POD form. This answer is considered incorrect as he claimed he had to leave and could not return to Iraq as he feared being harmed or killed. The evidence before the delegate contradicted these statements as he was able to reside in the same town, Basra, Iraq as he did when he claimed he was being persecuted without any harm occurring. Therefore the evidence held by the Department, including his actions in voluntarily returning to Iraq for a period of over three years after the grant of his protection visa, suggested he did not hold an adverse imputed political profile nor did he at the time he submitted his protection visa application.
·At question 43 of his protection visa application, which asks “what do you fear may happen to you if you go back to that country?” he answered “please refer to the POD lodged to DIAC in particular the statement of claims attached to the POD form” in the statement of claims to which he referred he stated “I believe if I returned to Iraq I would face a real chance of being killed for reasons of his political opinions and his religious beliefs.” The delegate put it to him that this was an incorrect statement as the evidence showed he returned to Iraq for a considerable amount of time, 37 months, after the grant of his visa without any adverse attention. This indicates he had no fear of returning to Iraq and the fact he returned to Iraq so soon after the grant of his protection visa suggests he never held the adverse imputed political profile as claimed in his protection visa application.
·At question 44 of his protection visa application, which asks “who do you think may harm/mistreat you if you go back?” he answered “please refer to the POD lodged to DIAC particular the statement of claims attached to the POD form.” In the statement of claims he stated he could not return to Iraq due to a fear of being harmed or killed by the arm Mahdi Army and the battery forces who were active militias in the area he resided in. The evidence showed he returned to Iraq, specifically Basra, for an extended period totalling 37 months, without any known adverse attention being paid to him by his claimed non-state persecutors. As such the delegate put to him that he did not hold an adverse imputed political profile and did not hold it at the time of his protection visa application.
·At question 46 of his protection visa application, which asks “do you think the authorities of that country can and will protect you if you go back? If not, why not?” he answered “please refer to the POD lodged to DIAC in particular the statement of claims attached to the POD form.” In the statement of claims he stated “the authorities in Iraq will not protect me. They have been infiltrated by these militia groups and are standing by while they target people like myself who do not believe in their philosophies.” The delegate put it to him this was an incorrect statement because his consequent actions of returning to and staying in Iraq for a substantial period of time, without any adverse attention, demonstrates the Iraqi authorities have been able to sufficiently protect him.
Response to the NOICC

The applicant responded to the NOICC in a letter received by the Department on 27 March 2017.
In that letter he agreed that he returned to Iraq after being granted a protection visa. He first applied for his family to join him in Australia on the basis of being a split family and made the application on 2 July 2012.
He was then told that his daughter in Iraq was very sick and that his family was suffering because of the pressure exerted on them by the militias. He was reluctant to travel at first but then left for Iraq to see his sick daughter and hoped to find a way to protect his family. His daughter was admitted to hospital and he did everything in his capacity to save her life. They [operated on] her [but] she later died. He provided a medical report relating to his late daughter’s illness and her death certificate
After his daughter’s death, he could not leave his family, however he could also not move freely in Basra and that is why he had to take the family to the province of Al Najaf where the situation was much better. Despite all the threats, he had to be with his family during this time because his wife was suffering from severe depression. The person who was responsible for the neighbourhood started coming to his home and collecting information about him and his family. He was told the militia men had requested that information. He then understood that they were still after him. By this time his family became more stable and he started to think about going back to Australia. He had a friend in [another country] and asked him to go to the Australian Embassy to inquire about the possibility of his return, particularly because his Australian travel document had expired. His friend was told by the Embassy that he could still return to Australia but he had to renew his Iraqi passport in order to be able to travel. He returned to Basra to renew his old Iraqi passport and started to arrange his return to Australia.
He only returned to Iraq because of threats to his family and the medical report relating to his late daughter. During the 37 months he was under continuous pressure and in fear. He provided copies of a psychologist’s report dated [March] 2017 and a copy of the decision refusing his family’s application for a humanitarian visa.
Delegate’s decision
The delegate found that the applicant had knowingly provided incorrect information when applying for his protection visa. The incorrect information is in regard to his claimed fear of persecution for reasons of his imputed adverse political opinion should he return to Iraq and in particular his answers to questions 41, 42, 43, 44 and 46 in his Form 866 application form and in his statutory declaration of 12 June 2011.
Evidence before the Tribunal
The applicant provided a copy of the delegate’s decision, a further psychologist’s report and written submissions made by his representative.
Broadly speaking, the applicant’s submissions acknowledge the applicant’s return to Iraq and his continued residence there for 37 months before his return to Australia.
Both the delegate and the applicant’s representative’s submissions referred to the applicant’s departure from Australia [in] February 2012, however, movement records, the applicant’s oral evidence and evidence from the travel documents indicate that the applicant left for Iraq [in] February 2013, some 18 months after the grant of his protection visa on 8 September 2011. The reference to [date] February 2012 is an error.
In his submissions the applicant maintains the claims he made when he applied for protection. He claims he left Iraq because he was threatened with serious harm by members of the religious militia because he was selling alcohol. He claimed that the statements he made in his statutory declaration were correct.
At the hearing held on 6 December 2018 the applicant gave evidence that he came to Australia in 2011 because he feared for his life. His aunt introduced him to persons who could arrange his travel to Australia.
The Tribunal went through the evidence and particulars of non-compliance set out in the NOICC and put it to him that his return to Iraq and his continued residence could indicate that he did not have the fear of serious harm which he had claimed in his protection visa application.
In response, he stated that when he applied for protection he had been afraid he would be killed in Iraq. He pointed out that he had endangered his life by crossing the sea in a small and unseaworthy boat and was in danger of drowning and would not have done this unless he had been in fear of his life.
After he was granted protection he did not travel to Iraq for over one year. After he was granted protection his wife called him in a highly distressed state asking him to return at least 10 to 15 times. He refused to go back because he feared he would be killed.
In 2013 his wife told him their daughter was seriously ill and her medical treatment was not adequate. She begged him to return to help her with his daughter’s medical needs. He claimed that he agreed to return but was still afraid of being harmed when he returned. He stated the only reason he returned was for the sake of his wife and children.
His daughter developed [medical condition] and was receiving treatment for a long time. [She] was [operated on], however, despite the [operation] his daughter passed away [in] June 2014 with [complications]. After his daughter died his wife developed severe depression and he was concerned for his wife’s health and the care of his other children. His wife tried to commit suicide by taking an overdose of tablets at one stage. He stated he did not return to Iraq for business or recreation; it was to support his wife and children during this difficult time.
The applicant also gave evidence that before he returned to Iraq he contacted the Department about his plans to return. The officer who spoke to him told him that if he returned the Australia authorities could not provide him with protection but they did not tell him that he risked cancellation of his visa. He stated that returning to Iraq was dangerous for him and he acknowledged that risk but felt he had no choice.
He stated that for part of the time he was in Iraq, he and his family lived in Al Najaf with his mother’s cousin. He stated it was safer there but they had to return to Basra because his daughter’s hospital was in Basra.
The Tribunal put to him that his return and prolonged residence in Iraq might suggest that he did not have a profile which would put him at risk of serious harm from the militias. Further his willingness to attend a government office to obtain a passport suggested he did not fear harm from the authorities. He stated that he was always fearful while he was living in Iraq and tried to limit his public exposure. The militias were still active when he returned but he was careful to avoid them. Further he was not afraid of the authorities; he just did not think they would protect him from the militias.
The Tribunal discussed his earlier evidence that his wife and family had moved to Al Najaf after he left Iraq. It invited him to comment on/or respond to information which indicated that his wife and family were living in Basra at the time he claimed they lived in Al Najaf. It also noted that his daughter’s hospital was in Basra and that it would have been difficult for his wife to travel with his daughter between Al Najaf and Basra, which was a six hour drive. He stated that his wife made the trip regularly and stayed with her sister.
He stated that the family home was in Basra; his wife and family members moved to Al Najaf for a period of time after he departed but they had now moved back to Basra. He explained that his son was now [age] years of age and could provide some male protection for the family and other family and tribal issues made it difficult for the family in Al Najaf.
Although the Tribunal accepts some of the evidence provided to the Tribunal it does not consider that the applicant has been entirely honest in all his evidence. The Tribunal found the applicant’s evidence regarding his family’s place of residence to be contradictory and not consistent with evidence his wife previously gave of her Basra address or of his daughter’s treatment needs in Basra during the relevant periods. The Tribunal considers that his family remained in Basra after he left Iraq for Australia in 2011 and they did not live in Al Najaf for any significant periods of time.
Did the applicant provide incorrect information as particularised in the NOICC?
Essentially the applicant claimed that he operated an alcohol business and that he was warned and threatened by members of the local Shia militias to cease his prohibited activities. He claimed that his business partner and friend was killed, and that he fled Iraq to escape the prospect of death or serious injury at the hands of the militias.
He has not abandoned these claims, nor has he made any admissions that at the time he left Iraq any of those matters he had claimed in his interviews or statements were incorrect.
The basis on which the delegate considers he has given “incorrect information” is that his conduct in returning to Iraq and remaining there for 37 months must necessarily call into question whether the answers he gave in his application and the claims in his statements are correct. The delegate has concluded that the applicant’s answers and statements are incorrect because of his conduct in returning to and living in Iraq. Essentially he has drawn an inference from the applicant’s conduct that his answers and statements about past fears of harm were incorrect.
The delegate considered that the conclusion made by the protection delegate that the applicant held an adverse imputed political profile had been refuted by his subsequent actions since the grant of his protection visa and the evidence held by the Department.
The Tribunal considers that in some circumstances inferences can readily be drawn that a person’s conduct will lead to a conclusion that earlier statements or answers are incorrect. However, the Tribunal is mindful that cancellation must be approached with an appreciation of the gravity of the consequences for the applicant. The onus of establishing the factual basis for cancellation is on the Tribunal and the Tribunal must be positively satisfied that the grounds for cancellation are made out. Each case must be considered on its own facts, including, most importantly, the particular claims made by the applicant and evidence supporting those claims.
The Tribunal has considered the particulars set out in the NOICC; the delegate noted that the applicant had claimed he feared he would be killed by militia groups in Basra for selling alcohol. The applicant’s fear was based on his conduct in selling alcohol, the threats he had received and the killing of his business partner in 2011.
The sale of alcohol in Iraq has been a complex issue. In 2003 the Daily Telegraph reported that under Saddam, Christians were the only group permitted to sell alcohol. The article further reported that with the growing influence of Shia clerics in Post Saddam Iraq, alcohol vendors were warned to stop selling alcohol:
Two Christians fell victim to the upsurge in Islamic fundamentalism sweeping Iraq when they were shot dead in Basra yesterday by suspected militants attempting to stamp out the sale of alcohol.
The men, who were alcohol vendors in a district of the southern Iraqi city that is home to Armenian and Syrian Catholics, were shot within 10 minutes of each other in their shops by two men, witnesses said.
Shia clerics - whose influence was suppressed under Saddam Hussein -have been warning shopkeepers for weeks to stop selling alcohol or risk severe punishment.
The clerics have become increasingly vocal on a variety of issues, including the status of women, since Saddam's fall.[3]
Under Saddam, Iraqi Christians were the only citizens permitted to sell alcohol. The trade would attract day trippers from neighbouring Kuwait, about two hours' drive away, which has a complete ban on alcohol.
[3] Christians Murdered for Selling Alcohol, 2003, Daily Telegraph, 9 May 2003,
The sale and distribution of alcohol in Basra continued to be a controversial issue and there were many attempts to ban alcohol by government authorities from 2008 onwards.[4]
[4] Saeed, M. 2008, ‘Alcohol returns to Iraq’, Niqash, 2 June ; Gisick, M. 2009, ‘Christians in Basra subdued for holiday’, Stars and Stripes, 15 December ; Al-Wazzan, S. 2010, ‘Booze ban in Basra’, 2010, Niqash. 23 March
More recent reports indicate that alcohol sellers have been targeted by Shia militia in Baghdad and Basra. Cafes and casinos have been targeted by religious extremists for allegedly being involved in illicit activity such as gambling, alcohol and prostitution. The militia group, Asaib Ahl al-Haq, has carried out ‘assassinations, death threats, forcing people out of the community, or sometimes just using it as an allegation to get someone to leave or get them to leave their property’. There are reports of Christians being targeted for selling alcohol. In October 2016, a Syriac Catholic man from Qaraqosh, who had relocated to Basra following the IS takeover, was killed. He operated a shop selling groceries, including alcoholic spirits. He was reportedly killed by armed men on a motorcycle who opened fire on him.[5]
[5] ‘Iraq 2017 Crime & Safety Report - Basrah’, Overseas Security Advisory Council (OSAC), 7 March 2017,CISEDB50AD509; ‘EASO COI Meeting Report – Iraq’, European Asylum Support Office (EASO), 11 July 2017, p.23 CISEDB50AD4807; ‘Islam and Human Rights: Key Issues for Our Times’, Atlantic Council, 13 June 2017, p.23, CISEDB50AD4627 ‘Gunmen kill a Christian shopkeeper in Basra, the first victim of Iraq’s anti-alcohol law’, AsiaNews.it, 28 October 2016, CX6A26A6E16494
Country information indicates that the Mahdi Army (or the Jaysh Al-Mahdi – JAM) was still active in Iraq, primarily in areas with high concentrations of Shia including Baghdad, Diwaniyah and Basra.[6] The country information indicates that at the time the applicant left Iraq, the Mahdi Army and the Badr group and other Shia militia were active in Basra.
[6] UK Home Office 2011, Iraq: Country of Origin Information (COI) Report, 30 August, p. 308
Since its inception in 2003 by Moqtada al-Sadr and Imad Mugniyah, the Shiite Mahdi Army has undergone several restructures. Following the announcement of a ceasefire by Moqtada al-Sadr in 2007, the Mahdi Army, as such, was effectively disbanded and restructured into two sections; a social wing (the Momahidoun, or ‘those who pave the way’) and an armed wing (the Promised Day Brigade – PBS) to continue resistance against occupying forces.[7]
[7] Stanford University 2012, Mahdi Army, 18 February ‘Profile: Moqtada Sadr’ 2012, BBC, 19 January Al Juburi S 2010, ‘Can Iraq's Sadrists prove their nationalist credentials?’, Open Democracy, 4 January
Following the announcement of the ceasefire, several groups splintered from the Mahdi Army to continue fighting, including the League of the Righteous, the Guardians of Religion, and Men of the Sword.[8] In April 2010, Moqtada al-Sadr publicly announced the restoration of the Mahdi Army and retaliatory attacks were carried out in response to attacks on Shiite communities in Baghdad.[9]
[8] Stanford University 2012, Mahdi Army, 18 February Jamestown Foundation 2011, ‘Muqtada al-Sadr and Iran Use ‘Soft Power’ to Pursue Objectives in Iraq’ , Terrorism Monitor, Volume: 9 Issue: 5, 7 February ; Ramzi K 2011, Mahdi Army vs League of Righteous: Fears That Fresh Violence Between Shiites Could Spread, 14 July, Niqash Organisation website
[9] Stanford University 2012, Mahdi Army, 18 February >
By 2017 there were no reports of Mahdi Army attacks in Basra. Information indicated that the group now focuses on foreign military forces and people who assist them.[10] The [Mahdi Army] group focuses on attacking American forces as well as those that work with Americans, including the Iraqi police and other foreign militaries.
[10] Stanford University 2012, Mahdi Army, 18 February
The applicant claimed that at the time he left Iraq the militias had threatened him and killed his business partner and this is the reason he left Iraq. He claimed he held a subjective fear based on the threats and conduct of the militia in 2011.
Taking into account country information and the evidence of the applicant, the Tribunal considers the situation was somewhat different when the applicant returned to Basra in 2013. He had been away from Iraq for almost two years and was no longer the owner of a shop selling alcohol or a distributor of alcohol. While he claimed that he was still afraid of being killed or seriously harmed by the militias he felt he had to overcome his own fears to assist in the welfare of his family.
The Tribunal accepts that the applicant’s wife and children remained living in Iraq after he left in 2011 but it does not accept the applicant’s evidence they moved to Al Najaf; it considers that they remained in Basra. The Tribunal accepts the evidence that the applicant’s daughter became seriously ill and this was the reason he returned to Basra in 2013. It accepts that the applicant remained in Iraq after the death of his daughter to care for his wife who became severely depressed and to care for his children at a time when his wife was unable to look after the children.
The country information indicates that the sale of alcohol in Basra had always been discouraged and increasingly restricted by Iraqi authorities. In 2016 the sale of alcohol was banned by the Iraqi government. The country information indicates that the Shia militias in Basra were also active in their opposition to the sale of alcohol and their purpose was to prevent the sale and distribution of alcohol, often using violence and threats to achieve this object.
On the basis of evidence that the applicant sold alcohol in Basra as claimed, the Tribunal considers that the applicant was at greatest risk of targeted harm in 2011 when he was the seller of alcohol and did not heed the warnings of the militia to close down the business. However, there is no evidence before the Tribunal that the Shia militias continue to threaten or harm those persons who cease to operate as sellers or distributors of alcohol. On this basis the applicant would not have faced the same level of risk in 2013 that he faced in 2011.
While the Tribunal accepts he may have had residual fears of some harm befalling him on return in 2013 the risk was less likely than the risk he faced in 2011 which, according to his evidence, was an immediate risk. He gave evidence that after he obtained his protection visa his wife urged him to return a number of times but he refused until his daughter’s condition deteriorated to the extent where he feared for her survival. He gave evidence, which the Tribunal accepts, that he spoke to an officer of the Department about returning to Iraq in 2013 and he was advised that the Australian authorities could not protect him if he returned.
The applicant has continued to claim that at the time he left Iraq in 2011 he feared being killed or seriously injured by the militias. Other than for the fact of his return, there is no other evidence which would lead the Tribunal to the conclusion that this subjective fear in 2011, based on the threats and conduct of the militias, was incorrect. The applicant claimed he feared the Shia militias which were very powerful, particularly in the years between 2008 and 2012 and continue to have some influence in the south of Iraq. He did not claim that he feared Iraqi authorities and it follows that his application for an Iraqi passport was not inconsistent with his earlier claims as he had not expressed a fear of the authorities.

As set out above, the applicant claimed he feared harm at the hands of the militias in 2011 because he was a seller of alcohol but when he returned in 2013 he did not resume this occupation. There is no evidence or information which might suggest he would continue to hold an imputed adverse profile if he returned to Iraq two years later and did not return to the occupation of the sale and distribution of alcohol.
The Tribunal does not necessarily accept the proposition in the NOICC that the overwhelming evidence that he had returned to and lived in Iraq for an extended period of 37 months without harm befalling him following the grant of his protection visa showed that he did not hold an adverse imputed political profile and did not hold one of the time of his protection visa application.
The Tribunal is also not positively satisfied that the answers in questions 41, 42, 43, 44 and 46 were incorrect at the time he gave those answers and made his statement. He claimed that when he made his application he did not wish to return to Iraq, that he had to leave in 2011 because he feared being harmed or killed for reasons of imputed political opinion and for reasons of religion and that he feared being killed by the Mahdi Army and Badr forces if he returned. He also claimed that in 2011 the authorities were infiltrated by the militia groups and stood by when people like the applicant were targeted.
The Tribunal accepts that if the applicant had returned to Iraq in different circumstances or if the basis of his fear of serious harm was of a different nature it may have indicated that he did not have a genuine subjective fear of harm as set out in his application for protection. In different circumstances the Tribunal may have drawn an inference that his conduct led to a conclusion that he had provided incorrect information.
However, on the evidence before it, the Tribunal does not draw such an inference. It is not positively satisfied that the information the applicant provided in his answers and his June 2011 statement as set out in the NOICC was incorrect.
The Tribunal considers that if the applicant was the holder of a temporary protection visa the current evidence would suggest that he would not continue to require Australia’s protection obligations; however that is not the issue to be considered in this application. The issue for consideration is whether the applicant gave “incorrect information” at the time he made his application for protection.
Accordingly the Tribunal is not positively satisfied that the applicant had not complied with s.101(b) of the Act in regard to answers he provided in his statutory declaration dated 12 June 2011 as well as the answers he provided in his Form 866 application for a protection visa.
Conclusion
For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Louise Nicholls
Senior Member

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

[2019] AATA 6438

20 September 2019

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