1718569 (Refugee)

[2020] AATA 2789

1718569 (Refugee) [2020] AATA 2789 (16 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718569

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Angela Cranston

DATE:16 July 2020

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 16 July 2020 at 14:26pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect information – applicant’s return to Iraq on two occasions soon after protection visa grant – engagement and marriage – issue of same flight numbers for both trips – tribunal’s concerns with applicant credibility – seriousness of cancelling permanent visa – return to Iraq should not lead to conclusion of incorrect information – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(H), 5(J), 5K-LA, 36, 65

Migration Regulations 1994, Schedule 2

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

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act). In his protection visa application and in response to Part C, quesiton44: “your reasons for claiming to be a refugee”, the applicant stated the following:

I was born in Kuwait a stateless Bedoon. After the liberation from the Iraqi invasion life became very difficult for us because we were perceived as being Iraqi and supporting Iraq. In 1993 my family was deported to Iraq from Kuwait. My uncle was living in Al Zubair in Basra at the time so my family went there. …

I was able to obtain Iraqi citizenship through my uncle …

As it is so difficult to find work we had no choice but to work for foreign companies working in Iraq even though the militia groups were against this and did not want people to work for foreigners. I started working with a [Country 1] owned security company as a security guard in December 2010. I was then promoted to [another position].

[In] May 2011 my [brother] [Mr A] was on his way to the Sunni mosque for prayers with two other neighbours and his sons (my [young] nephews). About [number] metres from the mosque a [car] with tinted window pulled over and the men with balaclavas got out and asked my brother his name they also asked the [person, Mr B] with my brother his name. The men said they were with the government and asked my brother and [Mr B] to get into the vehicle but they refused. [Mr B]’s brother tried to help them but the men killed all three men by shooting them with pistols. This was [in] the evening. We believed that they killed my brother and the other two men because they were Sunni. The militia used to collect the names of Sunnis in the neighbourhood. We went to the police and reported it. They said investigate but they have no power over the militia groups. The police also live in fear of the militia groups.

A month later the militia came to our house looking for us. They knocked on our door and [Mr C]’s wife asked them to bring the local mayor before she answered the door. They jumped over the fence and before this my brother and I had gone upstairs and then jumped over the fence to our neighbour’s house. Our neighbour’s hid us. After the militia left I went to my sisters house to stay. My brother would go to his house during the day but slept elsewhere for safety.

I kept going to work for a few months but then stopped. I was constantly in fear of being killed by the militia and it all became too stressful. The neighbours would advise us when they saw the militia vehicles in our area.

I decided to flee Iraq as I did not want to be killed by the militia like my brother [Mr A]. My other brother [Mr C] is still living in fear….

In April 2011 I was once stopped at a checkpoint after a car bomb blew up the [Country 1] envoys that were visiting our company, which was [Country 1] owned subsidiary. I was threatened that if I continued working in my job I would be killed. They accused me of being an American agent. I had no choice but to continue working there as I needed the money to survive. The militia groups are against any foreign companies in Iraq.

Since the Americans have left the situation has got worse for Sunnis in Basra. The government is not strong enough to control the militia groups and protect its people.  

2.    The applicant was granted a protection visa on 9 October 2012. He departed Australia [in] January 2013 and returned [in] July 2013.He again departed Australia [in] February 2015 and returned [in] May 2015.  

3.    On 17 January 2017, the applicant was issued with a Notice to consider Cancellation of the protection visa (NOICC), on the basis of non-compliance with s101(b) of the Act. The NOICC stated (in part) that the applicant provided incorrect answers to question 44 of Part C of Form 866 as he had returned to Iraq on two occasions (departing Australia [in] January 2013 and returning [in] July 2013 and departing Australia [in] February 2015 and returning [in] May 2015) since the grant of his protection visa. The Notice stated that departmental records indicated that his incoming passenger card dated [date] May 2015 stated that he boarded in Iraq and that his titre de voyage showed entry and exit stamps issued on his arrival and departure from Iraq. The Department stated that since the grant of his protection visa, he had spent a significant period of time outside of Australia and 86 days in Iraq and that his apparent voluntary travels back to Iraq without any apparent harm over multiple occasions since the grant of his protection visa suggested he did not hold the claimed adverse profile of harm as stated in his protection visa application.

1. The Department received the following response:

   My client maintain that he went to Iraq to get engaged and that the only reason for his travel was to get engaged to a girl with the name of [Ms D], my client maintain that he developed relationship with [Ms D] over some applications like [deleted].

   My client maintain that a problem evolved as her family discovered that she was chatting with someone in Australia (my client) and that [Ms D]’s family were very angry with her because the traditions in the applicant’s country would not allow girls to talk to strangers or people who are not her cousins, therefore [Ms D] told my client that he should come to Iraq in order to save her from the problem that she was facing, because her family told her that my client should come to Iraq and ask for her hand from her family first if he is an honest person or if he would like to commit to [Ms D].

   My client maintain that he decided to go to Iraq so he can convince [Ms D]’s family of his person and his genuine desire to get engaged to [Ms D], however my client have one major problem is that he cannot travel to the south of Iraq because he was persecuted there and for this reason applied for protection in Australia, therefore he travelled to Erbil (part of Kurdistan) and arranged with [Ms D] to bring her family to Erbil so they get engaged, my client waited there week after week but [Ms D]’s family were stubborn and insisted that my client come to them in their home town (Basra) on the other hand, my client was not able to go to Basra because he fears harm from the militia groups there, therefore he stayed in Erbil all this time, doing so led to the breakup in this relationship between my client and [Ms D], her family accused me of establishing illegitimate relationship with their daughter ignoring the tribal rules in this regard.

   My client maintain that he lived all this time in Erbil and he present the attached airline ticket as an evidence for his immediate travel to Erbil, he moreover encourage the Australian authorities to communicate with the Iraqi airlines to confirm that he travelled to  Erbil during this time.

   My client maintain that all the above-mentioned facts are correct and genuine and that he can sign any authority form to authorise the Australian government to check about his travel with the Iraqi airline.

   My client used his Australian travel document in his entry and exit from Iraq.

   My client believe that he complied with the migration act because he did not give any incorrect answers in the forms filled for his protection visa application and the facts he mentioned in his application are truthful and genuine.

2. The delegate cancelled the protection visa on the basis that the applicant had returned to Iraq on two occasions since its grant which the delegate said was contrary to his claims. The delegate found that returning to Iraq so soon after the grant of his protection visa without apparent issue or impediment indicated that the applicant did not hold an adverse profile at the time of lodging his protection visa application.

3. The applicant applied for review and the Tribunal sent the following 424A letter:

   On 17 September 2012 you lodged a form 886 application for a protection visa that was granted on 9 October 2012. In response to questions on the form 866 such as
   “have you experienced harm in that country” and you stated yes, that in April 2011 you
   were stopped at a checkpoint after a car bomb blew up the [Country 1] envoys that were visiting your company which was a [Country 1] owned subsidiary. You also state you were threatened that if you continued working in your job you would be killed as Sunni Muslims and are not safe in Iraq. At questions such as “what do you fear may happen to you if you go back to that country?” you stated if you returned to Iraq you would be killed like your brother from the militia groups and this is because you were a Sunni Muslim, that it was so dangerous for Sunnis, that you were afraid to go to work in case you were killed and without work you could not financially support yourself. You also said in your accompanying statement that you decided to flee Iraq as you did not want to be killed by the militia that killed your brother. You signed the applicant declaration which states in part:
   I declare the information I have supplied on or with this form is complete, correct and up-to-date in every detail. I understand that if I have given false or misleading information I application may be refused in any visa issued may be cancelled. I have read and understood the information supplied to me in this application. This is relevant because your claim that you feared the militia and would be killed by them because you were a Sunni Muslim may be incorrect since you returned to Iraq three months after your protection visa was granted on 17 September 2012 and remained there for an extended period of time.

   Since the grant of your protection visa departmental records indicate you departed Australia [in] February 2015 and returned [in] May 2015. On your most recent arrival into Australia [in] May 2015 a Department of Immigration and Border protection officer interviewed you. You stated you departed Australia [in] February 2015 and travelled to Iraq to get engaged/married. Your income passenger card dated [May] 2015 asks the question, Which country did you board this flight or ship? and you stated Iraq. Your Titre de voyage shows entry and exit stamps issued on your arrival and departure from Iraq.
   This is relevant because these actions may also not be representative of a person who fears the militia and who has a family history of being targeted by the militia and may mean you did not hold the adverse profile claimed and subsequently may not have engaged Australia’s protection obligations.
   As the incorrect information was material to this determination it appears that you did not hold the adverse profile claimed and subsequently may not have engaged Australia’s protection obligations. Your apparent voluntary travels back to Iraq without any apparent harm over multiple occasions since the grant of your protection visa may suggest you did not hold the claimed adverse profile of harm as stated in your protection visa application. If the Tribunal finds that your answers are incorrect, then subject to your comments, the Tribunal would find that you have not complied with section 101(b) that states that you must fill in visa application forms in such a way that no incorrect answers are given or provided. If the Tribunal finds that there has been non-compliance with section 101(b) then it must consider whether the power to cancel your visa should be exercised.

4. The Tribunal also stated the following:

   If the Tribunal finds that your answers are incorrect, then any reasons for the why you have not complied with section 101(b) or any reasons why the Tribunal should not be cancelled.
   Your response should address the following:
   (a) the correct information;
   (b) the content of the genuine document (if any);
    (c) whether the decision to grant a visa was based, wholly or partly, on incorrect
   information or a bogus document;
   (d) the circumstances in which the non-compliance occurred;
   (e) your present circumstances;
   (f) your subsequent behaviour concerning your obligations under Subdivision C of
   Division 3 of Part 2 of the Migration Act (which states you are required to notify the
   Department of changes in your circumstances or if you become aware that answers
   you gave were incorrect)
   (g) any other instances of non-compliance by you known to decision-makers;
   (h) the time that has elapsed since the non-compliance;
   (j) any breaches of the law since the non-compliance and the seriousness of those
   breaches;
   (k) any contribution made by you to the community.

5. The Tribunal received the following:

   1-       On 8-11-2016, the applicant was issued with a notice of intention to consider cancelling his visa, the applicant responded to this notice on 29-11-2016, the applicant’s response contained a written submission, an airline ticket and form 956, On the 17th of January 2017, the applicant was re-issued with the same Notice of intention to consider cancelling his visa “NOICC”, the subject matter of the Notice was in relation to the applicant’s return to Iraq between [date]-2-2015 and [date]-5-2015 for a period of 3 months, upon return to Australia, the applicant was interviewed by an officer of the department, the applicant stated that his reasons for going to Iraq was in relation to his attempts to get engagement/married.
   2-       The Notice referred to s 109 and stated that the applicant’s travel to Iraq means that he gave an incorrect information in relation to his protection visa application because in that application, the applicant claimed that he fear harm from the militias in Iraq due to his work with an international company and due to his Sunni religion background.
   3-       On 20-2-2017, the applicant responded to the NOICC, the applicant’s submission included a written submission, an airline ticket that shows that he travelled to Erbil in the northern autonomous region of Iraq, a rental agreement that proves that he spent his time in Erbil, and some employment and educational certificates in support of his response to the NOICC, the applicant’s written submission confirmed that he went to Iraq, it also confirmed what he stated to the ABF officer that he went to that country in order to get engaged to a girl in Iraq, the submission referred to the conservative family values in Iraq which suggests that a male person should approach the girl’s family and ask them for her hand instead of talking to her over the phone, the applicant’s submission referred to the difficulties that the applicant’s faced in that trip, and that he only went to Iraq so the girl who he loved “[Ms D]” will not be harmed, especially that the tribal traditions in Iraq suggest that girls should marry their cousins as a priority, in that submission, the applicant stated that he went to Erbil in the northern autonomous region of the Iraqi north because the shia militia doesn’t exist there, the applicant reiterated that he feared persecution in the south and the centre of Iraq for the reasons given in his statement of claims and interviews with the department. the cancellation letter (at page 8) confirms that the applicant stated that he went to Erbil when he was asked about this by the ABF officer, in this regard, the letter stated the following:

   “He confirmed with the border officer in 2015 he returned to Erbil Iraq to get married and whilst there he became engaged..”

   4-       On 28-2-2017, an ITOA letter was sent to the applicant via email, this time the ITOA letter mentioned that the applicant travelled to Iraq twice , the first was in 2013, and the second was in 2015, the ITOA letter also contained some country information such as the UK home office report august 2016 .
   5-       On 12-3-2017, the applicant responded to the ITOA letter , included in the applicant’s response was a copy of an airline ticket which shows that the applicant travelled to Erbil between [date]-1-2013 and [date]-7-2013, a written submission in relation to the ITOA letter, copies of the applicant’s biometrics pages, the applicant’s submission stated that the applicant’s reasons for travelling in 2013 was as follows:

   “Client advised that in 2013, he landed in Basra then he used his Iraqi national ID to travel to Erbil ,because he was fearful that he might be harmed by the shia people in the south if he to show them his Australian travel documents,  client confirms that domestic flights does not require a passport,  in Erbil he used the Iraqi ID and the Australian travel document to enter Erbil but they did not stamp on the travel document itself as he showed them his Iraqi ID, my client maintain that he went to the north of Iraq in his first trip to see his nephew “ [Mr E]” who was kidnapped in the south for sectarian reasons , his nephew was released only after his family paid large sum of money, [Mr E]’s father brought [Mr E] to Erbil first before they went to [Country 1], my client maintain that he saw it a chance to see his brother and his nephew especially after what witnessed in the south .

   Client maintain that he never lived in the south of Iraq, in both of his travels he went to the north of Iraq as it shown from the stamps of his travel documents

   Client Maintain that he used an Australian travel document to travel to Iraq Kurdistan, he never used any other passport in Kurdistan, that is why he was able to get there.
   Client maintain that he has a well founded fear of being persecuted due to his religious beliefs, also for being member of particular social group being a member of the security personnel who worked for a foreign company.

   Also the response contained reference to OSAC report about Basra and the UNHCR report in relation to Iraq”.

   6-       As to why the applicant landed in Basra instead of Erbil, the applicant states that the reason was due to the fact that the applicant was told by his friends that the Kurdish authorities will turn him back to Basra airport if he is to land in Erbil directly , this fact is supported by the country information which was referred to in the ITOA letter dated 28-2-2017, where Ms Martha Kelly quoted the following from the Danish Immigration authority :

   “ country information indicates that an Iraqi citizen returning from abroad who does not originate from the Iraqi Kurdistan must travel onwards to the area he or she is originally from when arriving through an airport in Iraqi Kurdistan as it is ‘very difficult’ for a non-Kurdish Iraqi citizen to enter through an airport at Sulaymaniyah and Erbil and take residence in the Iraqi Kurdistan.1 Sources consulted by the joint Danish and UK fact finding mission indicated that if a person from Baghdad returning to Iraq from abroad tried to enter Iraqi Kurdistan, he would be returned to Baghdad by the Kurdish authorities.2 Country information indicates that in order to take residence in Erbil for some three months, you would have been required to get a residence permit from the Kurdish authorities.”

   The applicant confirms that he got a permit to stay in Erbil in his first trip, however, he doesn’t have a copy of this permit as he did not expect that he will needs to keep, while he was not required to get a permit in his second trip because it was for less than 3 months.

   7-       The applicant has a brother in Australia (–[Mr F]), the applicant’s brother was granted protection visa on 17-9-2017, [Mr F]’s file is attached to this email as we have his approval to use his file in the current review process.

   8-       The applicant confirms that his nephew [Mr E] was kidnapped in Iraq two weeks prior to the applicant’s travel to Iraq in 2013, [Mr E] was only got released after his family paid large sum of money, [Mr E] is the son of the applicant’s brother “[Mr C]”, so [Mr E] and [Mr C] were in their way to [Country 1] to seek protection with the UNHCR , [Mr E] is now in [another country], while [Mr C] returned to zubair at that time due to his wife’s sickness, the applicant confirms that when [Mr E]’s mother got sick, [Mr C] returned from Erbil to Zubair to take care of her, while [Mr E] stayed with the applicant in Erbil as he was unable to travel to [Country 1] by himself because [Mr E] was medically unfit for such travel to a third country due to the torture he sustained while being kidnapped.

   9-       The applicant confirms that his brother [Mr C] was kidnapped and tortures in January 2018, the applicant maintains that an armed men “Kata'ib Hezbollah” kidnapped [Mr C] from his house in Zubair area, and that they requested that [Mr C] pay USD[amount] or he will be harmed, the Kataib referred to the presence of the applicant and his brother [Mr F] in Australia suggesting that [Mr C] was financially well off because of his brother’s presence in Australia and because the applicant’s family were sunni family, the applicant maintains that his brother  “[Mr C] “ was only released after his sisters in Kuwait and some relatives managed to  pay USD[amount] to the kidnappers, the applicant maintains that [Mr C] reported the matter to the police after he moved to a farm in the outskirts of Zubair, the applicant confirms that he have no siblings in Iraq apart from [Mr C] who lives in a very miserable, unsafe situation in a farm that lacks even the basic needs. the applicant will endeavour to provide copy of the police report ASAP and he is waiting for [Mr C] to get copy of that report.

   10-     The ITOA letter dated 25-5-2017 stated that the E-tickets between Erbil and Basra were identical, the ITOA letter suggested that the E-ticket was genuine document, however, that suggestion  was made without logical reasoning because Iraqi airways flights  between Basra and Erbil  are given the same flight number all the time, for example, a quick Google search will lead us to the following results in 2020 will lead us into the following:

   
   The same applies in relation to the trips between Basra and Erbil , a quick Google search will result in the following :

   Then it is clear from the screen picture above that that flight number 911 and 912 were the same since 2003 till now , nothing changed at all , the Tribunal can easily ascertain that by just Google the following words “ flight between Basra to Erbil or Erbil to Basra” ,
   The applicant confirms that he never been into the south of Iraq apart from landing at Basra airport for the reasons mentioned above.

   Comments in relation to reg 2.41 :

   (a)     The correct information;

   the applicant confirms that he provided the department with the correct information in relation to his visa application and that he still have a well-founded fear of persecution in the south and centre of Iraq, the applicant responded to the NOICC within 14 days immediately and constantly, he provided the department with his airline ticket from Basra to Erbil and Erbil to Basra, in relation to why the applicant landed in Basra and not Erbil directly , we referred to the same country information used by the ITOA delegate. Erbil is part of the Kurdish autonomous region, it cannot be said that the applicant returned to Iraq when his return was to the Kurdish area which has its own army, police and has its own government.
   (b) The content of the genuine document (if any); the applicant maintains that the department’s reasons for not believing his assertions about Erbil was not based on real findings as the country information’s supports the applicant’s assertions.
    (c) Whether the decision to grant a visa was based, wholly or partly, on incorrect
   Information or a bogus document;
   The applicant confirms that the reasons to grant him protection visa still exist, and that his departure to Erbil is an evidence by itself that he feared harm in the south of Iraq
   (d) The circumstances in which the non-compliance occurred;
   The applicant explained his reasons in returning to Iraq,  his first trip was because of he wanted to see his brother [Mr C] and his son [Mr E] in the northern area of Iraq because of what happened to [Mr E] after he was kidnapped, the applicant explained that he stayed there for almost 6 months because [Mr E] was alone in the Kurdish area after his father returned to Zubair due to [Mr E]’s mother’s sickness also because his nephew was unable to travel by himself to [Country 1] due to the injuries he sustained while being kidnapped.
   (e) the present circumstances;
   The applicant is on Jobseeker allowance as he lost his job [due] to COVID-19, attached are copies of the applicant’s pay slip.
   (f) the applicant’s subsequent behaviour concerning your obligations under Subdivision C
   The applicant confirms that he did not breach any law in Australia and that he did not provide any incorrect information to the department
   (g) Any other instances of non-compliance by you known to decision-makers;
   n/a
   (h) The time that has elapsed since the non-compliance;
   The applicant’s travel to Iraq was in 2013 And 2015, more than five years passed since that time.
   (j) Any breaches of the law since the non-compliance and the seriousness of those
   breaches;
   the applicant is law obedient person who did not violate any law in Australia.

   (k) any contribution made by you to the community.
   The applicant confirms that he was employed [prior] to the current crisis, he also used to donate blood and money to the UNICEF.

1. The Tribunal also received the applicant’s brother’s visa application and visa grant as well as the applicant’s response to the Department’s ITOA assessment.   Also provided was a document translated as dated [date]/1/2018 from an Investigating police officer talking about a complaint from [name deleted] stating that his mother had earlier approached the police station and reported him kidnapped on [date]/1/2018.

2. The Tribunal sent a further request for a copy of an airline ticket which showed that the applicant travelled to Erbil between [date]-1-2013 and [date]-7-2013. The Tribunal received in response an eticket itinerary stating that [the applicant] was booked on a flight from Basra to Erbil [in] January 2013 returning [in] July 2013. The booking reference number was [the] same booking number identified on the applicant’s eticket itinerary for a flight from Basra to Erbil almost two years later [in] February 2015 returning [in] May 2015.

3. The Tribunal sent a further 424A letter referring to the applicant’s travel back to Iraq in 2013 (which had been inadvertently excluded from its first 424A letter). The Tribunal received a response indicating that the applicant wished to refer to his previous submissions which dealt with both his trips to Iraq.

   Country Information

4. According to  'The Kurdistan Region of Iraq (KRI) - Access, Possibility of Protection, Security and Humanitarian Situation', Danish Immigration Service, 11 April 2016, CIS38A8012737, there are barriers to the Kurdistan Region of Iraq and other Kurdish controlled areas for Iraqi citizens. The have stated the following:

   2. Access to the Kurdistan Region of Iraq and other Kurdish controlled areas
   From a legal perspective, Iraqi citizens have the right to freedom of movement in the whole country. Various sources, however, mentioned barriers for access to KRI and the Kurdish controlled areas.

   2.1 Sponsorship as a requirement for access to the Kurdistan Region of Iraq
   2.1.1 The issue of the abolition of the sponsorship requirement The Head of the General Security Directorate, Asayish, Esmat Argushi, stated that the sponsorship was abolished in 2012 due to the fact that, in many cases, the sponsor did not know the person he sponsored. Four sources confirmed the abolition of the sponsorship requirement. However, the same sources and an independent researcher indicated that the sponsorship, in practice, is still being enforced. Two sources said that the reason why the sponsorship was abolished was due to the fact that selling sponsorships had become a business.
   2.1.2 Sponsorship as a requirement for entry into the Kurdistan Region of Iraq Various sources stated that it is possible to enter KRI without a sponsorship, however, in order to work or to settle in KRI, a sponsorship is required in practice. In this respect, IOM stated that, upon arrival at the checkpoints at the land border to KRI or at the airport, Iraqi citizens will be granted a one week residence permit. A western diplomat stated that nobody needs sponsorship to enter KRI, but Iraqi citizens do need a sponsorship in order to work in KRI.
   2.1.3 Sponsorship requirement for IDPs Two sources explained that, since the end of 2014, the authorities have started imposing the requirement for IDPs to have a sponsor.28 UNHCR said that access to KRI may be very difficult for IDPs, unless they have some form of sponsorship or a certain ethnic or religious profile and some sort of connection to government officials or people employed with the security forces in the area. In the disputed areas, some forms of a sponsorship are also required.
   As opposed to this, a western diplomat said that a sponsorship is not required when Iraqi citizens come as IDPs. IRC differed slightly from this view in saying that a sponsorship is not imposed on 15 IDPs who are living in camps, whereas for IDPs who are living outside the camps, a sponsorship is imposed….
   2.1.4 Sponsorship for business or work purposes Journalist Osama Al Habahbeh said that, even

   2.1.7.2 Entry procedure, including sponsorship requirement determined by governorate, Erbil/Dohuk and Sulaimania
   A lawyer working for an international NGO stated that the procedure for entry into Erbil and Dohuk governorates is different from that of entry into Sulaimania Governorate: IDPs wishing to enter Erbil or Dohuk Governorates should present themselves to the checkpoint of entry for approval, and Arab IDPs who are not already in possession of valid residence documents from Erbil Governorate will generally be denied entry at the checkpoint. The lawyer working for an international NGO added that Kurds, Yazidies and Christians are generally permitted entry to Erbil or Dohuk Governorates without pre-existing residence documents. However, during periods of heightened security, these groups may also face increased security restrictions…

   The lawyer working for an international NGO further stated that the procedure in all governorates of KRI is very complex, requiring a number of documents that IDPs might have lost.
   2.1.7.3 Sponsorship imposed when applying for a residence permit
   As regards Iraqi citizens who want to apply for a residence permit, various sources stated that it requires a sponsorship. Two of these sources said that, when a person arrives in KRI, he can stay for one to two weeks as a tourist. The same sources, respectively, explained the procedure for applying for a residence permit, including presenting a sponsor, as follows:
   PAO/KHRW said that if a person wishes to stay longer [than two weeks] in KRI, he must have a sponsor, and after finding a sponsor who must be publicly employed, the IDP must find a place to live and get a support letter from the local mukhtar. PAO/KHRW added that the sponsor should also get a support letter from the government agency where he is employed to confirm that he is still employed. Further, PAO/KHRW said that the IDP and the sponsor should then approach the local Asayish office with the support letter from the mukhtar, the support letter from the sponsor’s employer and all relevant ID, including the national ID card and the Public Distribution System card.39 PAO/KHRW said that if the request is denied, there is nowhere to lodge a complaint about the decision.

   IOM said that if a person wants to stay in KRI for more than one week, the person must register at the local mukhtar’s office and the closest Asayish centre in the area where he stays within the first week of the stay. IOM added that if the person stays in a hotel for more than a week, without intention of settling in the neighbourhood, it is only necessary to have approval from the Asayish, and there is no need for approaching the mukhtar. According to IOM, here, the individual or the head of the family must present a Kurdish sponsor in person, a place of residence in KRI, registration details of the car and full name. To the knowledge of IOM, the family is given a paper with all names of the family members as well as the car registration number, and the one week residence permit will be extended for shorter periods of time until the security clearance by the Asayish is issued.

   Three sources stated, however, that practice is inconsistent. Two of these sources explained that it is unclear which criteria must be fulfilled to obtain a residence permit.41 In line with this, Human Rights Watch said that there are different ways to obtain a permit, also depending on the governorate within KRI. IRC said that, for someone who is not connected, the registration for a residence permit in KRI can take a couple of years.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

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

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

9. 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.

10. 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.

11. Extracts of the Act relevant to this case are attached to this decision.

12. Having regard to the terms of the NOICC and the information referred to in the notice, 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 also satisfied that the nature of the non-compliance was sufficiently particularised for the applicant to respond to it.

13. 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(b) referred to in the s.107 notice as set out in the NOICC.

14. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.

15. Whilst a visa holder, whose visa is being considered for cancellation, must be invited to show that the ground for cancellation does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA, the Court stated:The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled.

16. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.

17. While that case was concerned with cancellation under s.116 of the Act, the Court's comments would be equally applicable to s.109.

18. In other words, in cases where the existence of certain facts form the basis of the exercise of a statutory power, those facts must be established on the material available before the power can be exercised.

19. The decision-maker must be satisfied about the existence of certain facts before exercising the power. When considering the question of whether the decision-maker is satisfied there was non-compliance in the way described in the notice, he or she must 'feel an actual persuasion'. While the Tribunal is not bound by the rules of evidence, such a state of satisfaction can only be reached where 'the factual material or information tends to make out, or support, the finding or conclusion reached' and 'there is a rational connection between the factual information or material and the finding or conclusion reached'. The quality of the probative material provided 'which rises no higher than raising a suspicion supporting that factual conclusion is no foundation for such a conclusion'.

20. In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have 'serious' or 'grave' consequences to a party, the Tribunal is free to consider the evidence and other materials before it.

21. In that case, Flick and Perry JJ said that:

    The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.

22. The Tribunal is not bound to apply the principle in Briginshaw v Briginshaw that the strength of evidence necessary to make a finding may be greater if the consequences of that finding are serious, but it is not prohibited from applying it if it sees fit. The Court noted that s.33(1)(c) of the Administrative Appeals Tribunal Act 1975, which provided that the Tribunal is not 'bound' to apply rules of evidence, was not a prohibition upon the Tribunal applying those rules. It said that imposing a requirement for the Tribunal to apply the rule in Briginshaw in making its factual findings, would be an unnecessary constraint upon the freedom of the tribunal to employ such procedures as it sees fit in undertaking its fact-finding role.

23. As the contents of the NOICC demonstrate, the delegate considered the applicant's responses to questions 44 in his Form 866C. The delegate then referred to the applicant's trips to Iraq as set out in the NOICC and determined that the applicant's voluntary return to Iraq on multiple occasions without experiencing any harm or impediment indicated that he did not hold the adverse profile as claimed in his application for a protection visa.

24. The delegate's conclusion that the applicant had provided incorrect answers in his Form 866C, essentially, was based on the applicant's return to Iraq on two occasions without apparent issues and remaining in that country for the duration of his trips. While the delegate identified specific answers provided by the applicant in his Form 866C, the Tribunal has found no evidence to establish that the applicant's answers were in fact incorrect and that he had deliberately lied by claiming that he feared being persecuted by Shi'a militia groups for the reasons he had provided in his protection visa application.

25. The Tribunal appreciates that, broadly, an applicant's act of returning to the country where they claim to fear being persecuted may raise questions in relation to his or her subjective fear of harm and the credibility of their claims for protection. However, the mere fact of return is not necessarily inconsistent with the claimed fear. The individual circumstances of the case and the precise claims which were made must be carefully examined.

26. The applicant has given consistent evidence in relation to his claims for protection. In-essence he claimed that his brother was killed in 2011 on his way to a Sunni mosque because he was Sunni and that a month later militia came looking for the applicant who hid with a neighbour. He has also consistently claimed in his entry interview and protection visa application that in April 2011 he was stopped at a checkpoint after a car bomb blew up the [Country 1] envoys that were visiting his company which was a [Country 1] owned subsidiary and he was threatened that if he continued working in his job he would be killed and that Sunni Muslims were not safe in Iraq.

27. The present case is not a case where the applicant’s return to the country of feared persecution, necessarily undermines the claims made in the application for a protection visa. For example, the applicant did not claim to be stateless only to obtain a passport from the authorities in the country of feared persecution and return to the country using that passport. The applicant did not claim that he feared the authorities in Iraq or that he would be arrested upon returning to that country. The applicant claimed that he feared Shi'a militias and that since the Americans left, the situation for Sunnis in Basra had worsened.

28. The applicant has stated that even though he travelled to Basra on two occasions, he then travelled directly onto Erbil and the Department has recorded in its decision that when the applicant was interviewed by an officer at the airport in May 2015, he told them that he had returned to Erbil Iraq to get married and whilst there became engaged.

29. Erbil is located in the autonomous Kurdistan region in the north of the country and is governed by the Kurdistan Regional Government.

30. The Department found that it was more likely than not that the applicant returned to Iraq to visit his family and that he continued to reside at his habitual residence in Basra during his two returns. They also found that the applicant provided no plausible explanation as to why the applicant, who claimed to fear being killed by militas in Basra, flew into Basra although international flights into Erbil were readily available and he allegedly wanted to travel and stay there. In addition, the Department noted that country information indicated an Iraqi citizen returning from abroad who did not originate from Iraqi Kurdistan must travel onwards to the area he or she is originally from when arriving through an airport in Iraqi Kurdistan as it is very difficult for a non-Kurdish Iraqi citizen to enter through an airport at Sulaymaniyah and Erbil and take residence in the Iraqi Kurdistan. In addition, the Department also noted that the E-ticket Itineraries that the applicant submitted in relation to his 2013 and 2015 travel provided identical details apart from the alleged travel dates.

31. The applicant has told the Tribunal that the airline tickets shows he travelled to Erbil and the rental agreement proves he spent his time in Erbil. He also stated that he got a permit to stay in Erbil for his first trip however no longer has a copy while he was not required to get a permit for his second trip because it was for less than 3 months. He also stated that he has a brother [Mr F] who was granted a protection visa on 17 September 2017. He also stated that Iraqi airways flights between Basra and Erbil are given the same flight number as proven by a google search and that the flight number 911 and 912 were the same since 2003.  

32. Having carefully considered the applicant's evidence, including the documentary evidence submitted that indicates that it is difficult for a person from Baghdad returning to Iraq from abroad to enter Iraqi Kurdistan, the Tribunal shares the Department’s concerns about whether in fact the applicant went to Erbil on both occasions he returned to Iraq or whether he remained in Basra. In reaching this conclusion, the Tribunal has not only considered that the applicant did not provide any evidence in support of his rather belated submission that he obtained a permit to Erbil during his first trip but has also considered the copy of the E Ticket Itineraries that were purportedly issued for two separate trips two years apart yet use the same booking reference number. It makes no sense to the Tribunal why the same booking number would be used for two trips separated by two years and suggests to the Tribunal that the documents are bogus.   Neither does the rental agreement persuade the Tribunal that it is proof that the applicant spent time in Erbil given the concerns with the authenticity of the E Ticket Itineraries and the applicant’s propensity to provide documents which the Tribunal does not accept are genuine.

33. On the information before it, the Tribunal has considerable doubts about whether the applicant either returned to or remained in Erbil for the duration of his stay when he twice returned to Basra, Iraq. Accordingly, and as was put to the applicant in the 424A letter, the applicant’s return to Basra, Iraq on two occasions, raises legitimate questions in relation to the applicant’s credibility. In addition, the applicant’s reference to his brother’s visa does not provide any information about whether his brother departed Australia after he obtained a visa.

1. The Tribunal is of the view that even though there are issues with the applicant’s credibility, the applicant’s return should not automatically lead to the conclusion that the applicant provided incorrect information in his protection visa application. That is, even if the applicant travelled to Iraq on two occasions and was not in Erbil, it may mean there has been a change in the circumstances in that country. In any event, the Tribunal does not accept that the applicant's return to Iraq on two occasions provides a persuasive basis to make a positive finding that the information in his protection visa application is necessarily incorrect. In the Tribunal’s mind, it simply, without more, does not follow.  

2. In reaching this conclusion, the Tribunal considers that the cancellation of a permanent visa has serious consequences and any factual findings should be based on logical and probative material. The Tribunal has not reached a real state of satisfaction that non-compliance has been established.

3. For these reasons, the Tribunal is not satisfied that the applicant gave incorrect answers in his application for a protection visa. The Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant's visa does not arise.

4. 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

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

   Angela Cranston
   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.