1724670 (Refugee)

1724670 (Refugee) [2019] AATA 2040 (12 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1724670
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Tania Flood
DATE:12 February 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 12 February 2019 at 8:49am
CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect information – false representations – member of someone working for the Iraqi army – relatives in army – member of ethnic group – Sunni – Bidoon – returnee to Iraq – compelling reasons – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 65, 101-105, 107, 109(1)
Migration Regulations 1994 (Cth), Schedule 2 r 2.41
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
On 6 September 2016 the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act. On 26 September 2016 the applicant responded to this notice through his representative at the time. A further response to the notice was received on 31 October 2016 through [a professional service] and was considered by the delegate. In addition, the applicant provided a statutory declaration further explaining his circumstances which was also taken account of by the delegate.
An International Treaties Obligations Assessment (ITOA) was initiated on 13 October 2016 and finalised on 2 June 2017.
On 18 September 2017 the applicant’s Subclass 866 (Protection) visa was cancelled by a delegate of the Minister for Immigration under s.109 of the Act. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his application for protection and fraudulently gained permanent residence as a result of false representations.
The applicant sought review of the decision on 10 October 2017 and he provided a copy of the decision to cancel his visa.
The applicant appeared before the Tribunal on 29 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent.
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
The issue in the present case is whether the ground for cancellation is made out, 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.
The Tribunal has considered the submissions (outlined below) received in respect of the validity of the NOICC but is nevertheless satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements. The Tribunal is satisfied that the nature of the non-compliance was sufficiently particularised for the applicant to respond to it.
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 Notice of Intention to Consider Cancellation
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act in the following respects:
The applicant arrived in Australia as an illegal maritime arrival [in] April 2012.
On 14 July 2012 the applicant lodged an application for a class XA Subclass 866 Protection visa. As part of this process he provided a completed Form 866 – Application for a Protection (Class XA) visa.
At question 42 of part C of the Form 866 where it states “I am seeking protection in Australia so that I do not have to go back to” he stated “Iraq”.
He referred to his statement of claims in answering the following questions on his Form 866C:
-Question 43 of the form where it asks “Why did you leave that country?”.
-Question 44 of the form where it asks “Have you experienced harm in that country?”.
-Question 45 of the form where it asks “What do you fear may happen to you if you go back to that country?”.
-Question 46 of the form where it asks “Who do you think may harm/mistreat you if you go back?”.
-Question 47 of the form where it asks “Why do you think this will happen to you if you go back?”.
-Question 48 of the form where it asks “Do you think the authorities of that country can and will protect you if you go back? In not, why not?”.
In the statutory declaration made and referred to in the above questions the applicant stated:
“I am a citizen of Iraq. I do not have a right to citizenship or a right to reside in any other country.
I am Arab and a Sunni Muslim. I am a Bidoon.
I was born on [date] in Al Jahra, Kuwait however after I moved to Iraq, all of my identity documents state that I was born on [another date]. The reason for this is the Iraqi authorities did not accept any of my identity documents. When they issued the national ID card the Iraqi authority estimated my age.
Before we went to Iraq, my father was in the Army in Kuwait. His brother [also] worked in the army. I had identity papers, a birth certificate and was allowed to attend school. My father had military papers. However my family could not get a national ID card or passport or citizenship.
After the Iraqi invasion of Kuwait in 1990, my father and his brother were not allowed to continue to work in the army. My father told me it was because he was a Bidoon and the Kuwaiti army no longer wanted Bidoons in the Army.
At the time that Iraq invaded Kuwait in 1991, we fled from our house as it was dangerous time. My family moved to the family of my [uncle], in [a city] in Al Jahra, a province in Kuwait.
One day the Iraqi army searched the house next door to my uncles and burned it down. The Kuwaiti owner of the house had fled to Saudi Arabia and asked us to care for the house. The neighbours, including myself witnessed this incident. When the Kuwaiti owner returned after the Kuwaitis had won the war, he blamed my family for allowing the house to be burnt.
He went to the police. As Bidoons we didn't have the same access to the authorities and support from them. The authorities blamed us.
We had to leave Kuwait. Fled to Al Nassereyah in Iraq.
My family left Kuwait in 1991 when I was [age] years. At that time there was no official border crossing. The Kuwaiti officials used to guide people through the border crossing region using dirt tracks as the main roads were blocked off. My father told me Iraqi government was welcoming the Bidoons across the border.
My father told me that because he had connections in Iraq we were able to gain Iraqi citizenship.
I started school in Iraq but I was bullied because of my accent so I never finished my education there. I remained in Iraq living with my family but my life was miserable because I had left school very young and did not have friends as was not accepted by them at school.
In 1993, I attempted to return to Kuwait without the knowledge of my parents. I just left home. I travelled to Kuwait on foot. I was a young man, at the time aged about [age]. I did not understand how the laws worked, instead just hoped that because I was born in Kuwait I would somehow be able to live there. Before I reached Kuwait, I was stopped by Kuwaiti authorities. I was imprisoned for approximately [number] months. After [number] months, I was deported to Iraq.
In around [year] I was called for military service as I was an Iraqi citizen. I did not think that I could bear being in the Iraqi army so my father sent me to [a location] in [Town 1] to avoid the conscription. I knew this was against the law under Saddam's Hussein's government. I worked [in an occupation] until the fall of Saddam Hussein and the Americans invaded.
In 2002, before the invasion, I married my wife. I think during my entry interview I made a mistake and said that I was married in 2004. This is incorrect; my marriage certificate was issued in 2004.
The country to which I fear returning
I fear returning to Iraq.
My brother [Mr A] was a soldier in the Iraqi army and one day when he was on duty searching cars, he stopped a car and asked to see the identification documents of the occupants. He wrote down their names and checked his records and realised that some of the men were wanted by the army.
[Mr A] took them to the army camp as he was required to.
One or two months after this incident, a group related to these people came to my father's house and threatened my father, asking for [Mr A].
A few weeks later in June 2010, some men came into the house around dawn one night. We think that they were after [Mr A] but he was not there so they shot and killed my brother [Mr B]. They spared my other brothers because they were young.
Three months after [Mr B] was killed, some men again came to my father's house in a [car] and threatened him. They came again a few times after this.
After the murder of my brother, my father told us not to visit him anymore. My brothers would only go and visit during the night time.
As a result of these threats and after three months, [Mr A] could not stand it anymore and he went to Kuwait using his own passport on a 2 month visitor visa, with my fathers help.
Where I was living was separate from my father's house and because we were told not to visit I did not go and see my father at all for some time.
The men who were after [Mr A] worked out that I was his brother, I think because one day my mother came to visit me.
After this, I went to the market one day and I saw a friend. He suggested that we go and take some cars from the agency in [a town] to the agency in Zubair. I told him that I would leave my car at my house and that I would go with him to collect the cars. I drove home and parked my car near the house. We went to the agency and I took one of the cars. While I was driving, my wife called several times to request I buy salt, then gas. I told her not to ring me again because I was working and I hung up. When she phoned again, I did not answer. She tried to call again at around [time] and again I did not answer. About 15-20 mins later, my father called asking where I was. He was asking me questions about where I was and whether I was safe. Eventually he told me that after I had parked the car at the house, the house had been raided.
Apparently when they entered the house, they grabbed my wife by the collar and slapped her, asking where I was and where [Mr A] was. My wife said that she did not know where we were and they asked her more questions about when I was coming back and how often [Mr A] would visit.
When I arrived home my father was at the front door and explained what happened. He stayed the night with us as well as another neighbour and the following morning I took my wife and went to my father in laws house in Al Nasiryah, left my family there. My father in law said it was not safe for me to remain, would not permit me to remain there for more than a few hours due to the danger. I headed to [Town 1], called a friend who allowed me to come to his place in Zubair for 2 days. I moved to another Uncle and with the help of my friend arranged for a smuggler to meet me in [Country 1].
From [Country 1] I went to [another country] where I caught a boat which was intercepted by the Australian navy. I was taken to Christmas Island around [4/2012].
What I fear may happen to me, by who and why, if I return to that country
I fear returning to Iraq because I will be targeted by the anti-Sunni militia who has already targeted my family. My brother has been killed and I fear I may be hurt or killed in the same way he was killed.
Why I think the authorities of that country cannot or will not protect me if I were to go back to that country
Because the country is very unstable and the authorities are unable to control the militias, I fear I will continue to be targeted.
I am from a minority religion (Sunni) in an area which is a Shia area.
Why I think relocation to another area in my country is not a reasonable option
I cannot live in another area because I do not have any tribal or family links strong enough to protect me and my family.
The notice indicates that at question 67 of Part C of Form 866 the applicant signed the declaration which states “I do solemnly declare that the information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail”.
On the basis of the claims made the applicant was granted a protection visa on 7 December 2012 on the grounds of religion, (imputed) political opinion and membership of a particular social group of ‘a family member of someone working for the Iraqi army’.
The notice states that Departmental movement records indicate that since being granted the protection visa the applicant has travelled to Iraq on two occasions as follows:
-Departed Australia [in] March 2013 and returned [in] May 2013
-Departed Australia [in] September 2014 returned [in] January 2015.
The notice indicates that [in] January 2015 on arrival at [an Australian] Airport the applicant confirmed to Department of Immigration and Border Protection staff that he had returned to Iraq, the country from which he had claimed protection. He stated that his reason for the visit was to make arrangements for his wife and children to move to [Country 2] because he was worried about their safety. He said that he went directly to Iraq and stayed the whole time in Iraq. He stated that he visited his wife and children. Entry and Exit stamps in his Australian issued Titre De Voyage (number [number deleted]) confirmed he had travelled back to Iraq.
In the notice the delegate put it to the applicant that it therefore appears he does not hold the adverse profile he claimed in his protection visa application given he has voluntarily returned to Iraq on two occasions for a significant amount of time without hindrance and issue. The delegate put it to the applicant that it appears he provided incorrect information in response to questions 43-48 as follows:
At Question 43, he stated that he left Iraq due to threats by the militia who shot dead his [brother] [Mr B]. The militias worked out that he is the brother of a soldier working for the Iraqi army because one day his mother came to visit him. However, he has voluntarily returned to Iraq on two occasions without any incident.
At Question 44, he stated that his brother [Mr B] was killed and they are also looking for him and his brother who was working in the Iraqi army. However, he has voluntarily returned to Iraq on two occasions.
At Question 45, he stated that if he returned to Iraq he would be killed by the same militia that killed his [brother] [Mr B]. However, he has returned to Iraq on two occasions.
At Question 46, he stated that he was targeted by anti-Sunni militia who have already targeted his family. His brother has been killed and he fears that he may be hurt or killed in the same way his brother was killed. However, he has voluntarily travelled back to Iraq at least on two occasions without any incident.
At Question 47, he stated that he fears he would be killed because the militia already found out that he is the brother of a soldier in the Iraqi army. His brother, while working for the Iraqi army took some men to the army camp when on duty searching cars, as they were wanted by the army. After one or two months a group related to these men came to his father’s house and threatened his father and asked for his brother who is working for the Iraqi army. A few weeks later some men came to his father’s house and shot dead his [brother] [Mr B].
At Question 48 he stated he believes that the Iraqi government could not protect him because they are unable to control the militia and he is a Sunni living in a Shia area. Iraq is very unstable and the authorities are unable to control the militias and he fears he continues to be targeted.
The delegate put it to the applicant that he stated he feared returning to Iraq however he has since returned there voluntarily on at least two occasions. The delegate pointed out that as the information he provided in his application was material to the determination that he was owed protection it appears that he does not hold the adverse profile he claimed and that he may not have engaged Australia’s protection obligations.
Taking into account the matters set out in the notice, the delegate put it to the applicant that he had not complied with s.101(b) of the Act because he has provided incorrect answers to questions in his application and in information provided in support of his application for a protection visa.
The applicant was advised that he could comment on the possible non-compliance and also give a written response as to why his visa should not be cancelled. He was advised he should provide reasons as to why he thought he had complied, or why he had not complied with s.101(b) of the Act. The notice set out the time period within which to provide a response, relevant legislative provisions and a summary of the matters to be considered in relation to a protection visa cancellation.
The delegate also invited the applicant to give reasons as to why the visa should not be cancelled, taking into account the matters in Regulation 2.41 of the Migration Regulations 1994, on the basis that notwithstanding his submissions on non-compliance, the delegate may find that he did not comply with s.101(b) and he should address the discretionary issues.
Responses to the notice
On 26 September 2016 the applicant’s then representative provided a response on his behalf. He recounted the relevant legal background to protection visa cancellation decisions and then went on to discuss the individual aspects of the applicant’s situation.
It is submitted that the applicant indeed went to Iraq and advised DIBP staff at the airport that he went there to make arrangements for his wife and children to move to [Country 2] because he was worried about their safety. The first trip to Iraq was because his wife received a threatening phone call from some Shia militia in the south threatening them that they had to leave their house or face consequences. The caller demanded that all the family members should leave their house because they belong to the Sunni sect in the south of Iraq. The caller stated that Sunni’s are not welcomed in the area and they should leave. The call was received approximately one month prior to the applicant’s departure from Australia. The applicant flew from [Australia] to [another country] to Basra airport and then took a taxi to Nasiryah where his wife and children lived (with her parents). The applicant did not stay in Basra at all and only went there to get passports for his wife and children in order to get them out of Iraq. The applicant maintains that he received advice from a migration agent that he could not apply to sponsor his wife and children without them having passports. It is submitted that his travel was to achieve the goal of getting them out of Iraq.

It is submitted that when the applicant arrived to Nasiryah he felt he and his family were at risk of being harmed by Shia militia so he moved them to another suburb, [Suburb 1] where he rented a house. During this time he was able to obtain passports for his children and wife. It is submitted that in Iraq a child cannot obtain a passport without the existence of the father who has to sign the application.
It is submitted that the applicant asked his father to sell his house in [Town 1] but his father told him the house was burnt down by Shia militia.
It is submitted that when the applicant returned to Iraq he found his wife to be in a severe psychological state due to the continuing pressure she was subjected to in his absence. He realised that his wife’s trauma would not allow her to travel and live in [Country 2] and he was also unable to enter and reside in [Country 2] so he gave up the idea of moving his family outside of Iraq.
It is submitted that the applicant stayed in [Suburb 1] all the time he was in Iraq on the first trip. After he returned to Australia his wife returned to live with her parents because she could not copy living in a remote area far from her parents. She went back despite that her father is an alcoholic and was abusive towards her and the children.
It is submitted that the applicant used his Australian travel document to enter Iraq; he does not have any Iraqi documents and never used any Iraqi documents while he was in Iraq.
It is submitted that when the applicant returned to Australia he immediately applied to sponsor his wife and children to come out on a partner visa however conditions changed because the Department decided to place low priority on the processing of applications made by persons who arrived by boat and were later found to be refugees.
It is submitted that around [August] 2014 the applicants child ([Child 1]) was kidnapped by an unknown group. The next day the child was found in a [location] with injuries all over his body and was admitted to hospital for around one week. The child said he was threatened to be killed if he stayed in the area because of his religion. His wife could not report the matter to the police because the militia have infiltrated the police force. Also her parents advised her not to report the matter so as not to draw the attention of the militia in the south. The applicant then went back to Iraq to try to find a way to get them out of harm’s way.
It is submitted that the applicant returned to Iraq [in] September 2014. He arrived at Basra airport and went to Nasiryah and then rented the same house in [Suburb 1] and lived there with his wife and kids. The applicant paid a person to arrange visas for his wife and children to [Country 2]. The person requested more and more money and in the end informed the applicant that the applications were refused. The applicant returned to Australia because he could not find any alternative to ensure the safety of his family. During this trip he again used the Australian travel document and never used any Iraqi documents.
On return to Australia the applicant fell sick. Medical reports are attached to the submission.
It is submitted that the reasons for the applicant’s protection visa application still exist with the situation for Sunni’s in the south getting worse and worse.
On 31 October 2016 the applicant provided an additional response through [a professional service]. It is conceded the applicant returned to Iraq twice but the applicant disputes that he provided incorrect information in his protection visa application and that he does not have an adverse profile in Iraq or a genuine fear of harm if he returns to Iraq.
It is submitted that on both occasions the applicant felt compelled to return to Iraq because of genuine concerns about the safety of his wife and children. On that basis the applicant has complied with the requirements of s.101(b) of the Act and accordingly his visa should not be cancelled. In the alternative his circumstances support the favourable exercise of the Minister’s discretion not to cancel the visa.
The submissions made in respect of the first return trip to Iraq are in keeping with the applicant’s initial response. It is added that the threatening calls his wife received were made to her father’s house. Also, while in Iraq the applicant kept a very low profile and took active steps to ensure he did not attract adverse attention. He only travelled outside the house when absolutely necessary and always by taxi. He wore a kafiya so that he did not stand out. He did not attend mosque and at no time did he travel back to [Town 1] the area from which he previously fled.
The submissions made in respect of the second trip to Iraq repeat that the applicant’s son was abducted overnight, beaten and hospitalised for a week and in the circumstances it is submitted the applicant had no choice but to try to do something to help his family. He made three attempts to secure them visas to [Country 2]. On the third attempt one of his children was granted a visa but the rest were refused. Defeated the applicant returned to Australia. He begged his father for his wife and children to go and stay with him but his father didn’t think it was safe. He convinced his wife to stay with the children in the house in [Suburb 1] after he left but this only lasted a couple of weeks before his wife’s mother had to come and collect them and take them back to her father’s house because her mental health was poor. After the applicant’s return to Australia his wife arranged for her [uncle] to collect their son [Child 1] who had been attacked and take him to live with him around [number] kilometres away. He has been there in hiding ever since.
The applicant’s protection claims are repeated in a manner consistent with his application for protection. It is submitted that the applicant’s actions in returning to Iraq twice in the past 4 years to try to find ways to get his wife and children to safety are not inconsistent with having a well-founded fear of persecution or having an adverse profile in Iraq. The applicant returned to Iraq in spite of his fears because he felt compelled to try and get his wife and children to safety. While in Iraq he took steps to make sure he didn’t attract adverse attention.
It is submitted that there is a significant difference between living in a country and spending a contained amount of time there, essentially in hiding. Although the applicant was not harmed during either of his trips to Iraq it does not necessarily flow that he did not have an adverse profile at the time that he left Iraq or that he would not attract adverse attention if his visa was cancelled and he had to return to Iraq. If he was forced to return to Iraq he would need to work and he would need to participate in other aspects of daily life such as praying at the mosque which would make it difficult to remain inconspicuous.
The submissions makes reference to an Administrative Appeals Tribunal decision [1514049 (Refugee) [2016] AATA 4243 (1 August 2016)] which set aside the Departments decision where the facts appear to be similar.
It is submitted that since the applicant has left the country his wife has received threatening phone calls; his house has been burnt down and his son has been beaten up and hospitalised. On this basis it is submitted that the applicant has substantial grounds for continuing to hold a well-founded fear of returning to Iraq. The fact that there have been a number of incidents since he left the country strengthens his claims to have an adverse profile in Iraq.
The submission refers to medical reports indicating the presence of physical and mental health issues related to stress and anxiety. It is submitted that both the timing of onset and the symptoms of the applicant’s health conditions are consistent with his claims of having fears for his and his family’s safety in Iraq. The medical documents demonstrate that the applicant is consumed with worry about his wife and children.
It is submitted that the applicant has provided compelling reasons for his return to Iraq on each occasion and given evidence that he took steps to avoid adverse attention while in Iraq. On that basis it is submitted that the correct and preferable decision is that the applicant did not provide incorrect information and no non-compliance has occurred.
As to the considerations which should be taken into account if the Minister decides there has been non-compliance it is maintained that the information provided in the protection visa application was true and correct. It is noted that the applicant has lodged a partner visa application to bring his family to Australia but that in the meantime he is in receipt of Newstart Allowance payments and has significant mental health conditions and chronic migraines. The applicant has not travelled back to Iraq since he last returned to Australia. It has been approximately four and a half years since the alleged non-compliance. The applicant has had two driving infringements while in Australia. The cancellation of the applicant’s visa would lead to his forced removal from Australia to Iraq in breach of Australia’s non-refoulement obligations under the Refugee Convention. Since he left Iraq there have been a number of incidents involving his family and property and the situation in Iraq has worsened. He cannot relocate to the north of Iraq because of ISIL. If his visa is cancelled he may be subject to indefinite detention in Australia.
Finally it is submitted that the applicant’s actions in returning to Iraq a second time must be viewed in the light of the introduction of Direction 62 which afforded low priority to the processing of certain visa applications and the subsequent criticism the direction attracted.
In a Statutory Declaration made on 31 October 2016 the applicant maintains that the information he provided in his protection visa application is true and correct. He states that his return visits to Iraq were due to fear for the safety of his family.
The applicant states that after he was granted his protection visa his wife contacted him regarding the threatening phone calls she received from a Shia militia group. He went to see a migration agent who told him the process of bringing his family to Australia would take months and that his wife and children would need Iraqi passports. He knew he would have to return to Iraq in order to get the passports because the father must be present to do so. He thought about whether he could get them out of Iraq to another country but he didn’t think his wife was well enough to flee to another country with the children on her own. While in Iraq he lived with his family in a rented house in [Suburb 1]. Once he had obtained the passports he made arrangements to travel back to Australia. He took his wife and children back to her father’s house before he left. He hoped that now that the passports were obtained he would be able to bring them to Australia quickly but afterwards the Department adopted a different approach to the processing of certain visa applications. He felt hopeless and thought that he was letting his family down. He developed severe migraines and was also referred to a psychiatrist who diagnosed him with major depressive illness. Sometime later in 2014 his son went missing and was found the next day unconscious in a [location]. He had been badly beaten and was hospitalised. When he heard this he went straight back to Iraq. Again he moved his family to the rented house in [Suburb 1] and only went out when necessary. He tried to get his family visas to [Country 2] but was unsuccessful despite several attempts. He tried to convince his wife to remain in [Suburb 1] without him. She did try but only managed to remain there on her own for about two or three weeks before returning to her parent’s home. Their son [Child 1] has since moved to stay with his wife’s [uncle] and remains living there in hiding. His fear of returning to Iraq is even greater now because of what happened to his son and wife. If he returns and travels to the north of Iraq he could be asked to fight on the side of ISIL. If he refuses he will be considered a traitor and killed.
On 27 March 2017 the applicant’s representative drew the Tribunal’s attention to a further recent decision of the AAT where a successful appeal was made to not cancel the visa of an Iraqi protection visa holder (1617889 (Refugee) [2017] AATA 213 (2 February 2017).
Evidence to the Tribunal
On 22 January 2019 the applicant’s representative provided a written submission to the Tribunal which submits that the NOICC was not sufficiently particularised according to s.107 of the Act. It is submitted that the NOICC did not particularise or explain the link between the applicant’s return to Iraq and the alleged incorrect information provided by the applicant because the only reason given by the NOICC was that the applicant voluntarily travelled back to Iraq at least on two occasions without any incident. It is submitted that it is not sufficient for the Department to state that the applicant’s return to his home country without any incident is the reason for the NOICC to be issued. In the event this view is mistaken it is further submitted that there was no non-compliance as described in the notice because the applicant did not give any incorrect information. It is submitted that the applicant has explained the reasons for his travel to Iraq for compelling reasons and his return does not provide that the events he described in Iraq are untrue or that he did not have a subjective fear when he applied for refugee status. Similarly, that he was not harmed when he returned to Iraq does not prove that the events he described in Iraq are not true or that or that he did not have a subjective fear when he applied for refugee status or that his fear was not well-founded. It is submitted that the applicant took steps to minimise the chance of harm in Iraq; he stayed away from his area where he was known and he was careful about where he identified himself. It is further submitted that the ITOA assessment was made in error in part because information put to the applicant about the procedures for obtaining Iraqi passports for minors is not supported by the Passport Affairs Directorate website of the Iraqi Ministry of the Interior. Also it is submitted that the ITOA delegate’s reasoning was based on the idea of the applicant returning to Iraq only and the assessment overlooked the applicant’s claims and misunderstood country information.
The applicant provided oral evidence to the Tribunal regarding his return to Iraq on two occasions, the reasons for his return and the details of what he did when he was there on both occasions. The Tribunal found his oral evidence to be consistent with the various submissions outlined above.
Post-hearing submission
On 5 February 2019 the applicant’s representative provided a submission which again raises questions about whether the country information previously quoted by the delegate supports the requirement that a father be physically present in Iraq to obtain passports for minors. A RefWorld article is quoted which supports the possibility that a husband who is outside of Iraq can send his approval for the issuance of passports for a wife and children through the Iraqi Embassy in his country of residence. However, it is submitted that it is unclear what form this approval should take. An alternative view provided by information contained in a Landinfo report suggests the father must by physically present when the passport applications are made. It is further submitted that country information indicates that regardless of whether this requirement is made out the father must nevertheless be present to collect the passports once they are issued.
Was there non-compliance as described in the s.107 notice?
During the hearing the Tribunal discussed the fact that country information outlined in the delegates decision and in some respects in submissions made on his behalf indicates that it may not have been necessary for him to be physically present in Iraq to obtain passports for his children. The applicant responded that he was encouraged by his lawyer to return to Iraq to facilitate the issuing of the passports. He said he was not knowledgeable about such matters and he relied on the opinion of his lawyer. As can be seen from the post-hearing submission it is maintained that his physical presence in Iraq was required.
Based on his oral evidence the Tribunal accepts that the applicant was not fully aware of the legal requirements for obtaining Iraqi passports for minors and was impressed by the advice he received from the lawyer. The Tribunal acknowledges some variance in the available country information regarding Iraqi requirements for obtaining passports for minors. However, the Tribunal’s reading of the information is that the possibility of a husband/father providing approval for passports for his wife and children from abroad cannot be ruled out. However, the Tribunal is persuaded that the applicant thought he must and that in any event his physical presence very likely assisted and accelerated the process.

100. The Tribunal has some concerns about the other reasons provided for his return trips to Iraq, namely the phone threat made to his wife and the claimed kidnapping of his son. The Tribunal discussed with the applicant its concern that despite his wife being threatened by anti-Sunni people with harm unless she left the area she twice returned to her parent’s house where the threat was received and indeed continues to live there now. The Tribunal acknowledges the applicant’s submission that his son is no longer residing at those premises following his abduction however the evidence surrounding his abduction and beating remains somewhat vague and unconvincing. The Tribunal acknowledges the photographic evidence which has been submitted of his injured son lends some weight to the claims but the medical report sheds no light on the cause of injury.
101. Having considered the evidence overall the Tribunal is more of the view that the applicant returned on the first occasion to obtain the passports required for the partner visa application and not because his wife had been threatened in the manner claimed. Nevertheless, the fact remains that the applicant’s wife and children, who are Sunni Muslims, are residing in a Shia dominated area, in circumstances were societal discrimination and violence against Sunni Muslims continues to be reported[1]. The Tribunal accepts the applicant was and is concerned for the safety of his family living in such circumstances and that he was and is motivated to get them out of the country. The Tribunal accepts that this is the reason behind both his return visits to Iraq. The Tribunal also notes that the psychological evidence provided by the applicant to the Department lends further support for this conclusion.
[1] DFAT Country Information Report, Iraq, 9 October 2018
102. The Tribunal discussed with the applicant the steps he took to avoid harm while he was in Iraq. He has consistently stated that he rented a house approximately a [number] minute drive from Al Nasiryah and about [number]kms from the area from which he fled. He has produced some evidence to this effect in the form of a rental agreement. He said that he only travelled to Al Nasiryah to apply for and collect the passports and to seek out a travel agent who could assist him to obtain visas for his family to move to [Country 2] on the second trip. He said that his mother-in-law assisted them to obtain supplies from the market and that he and his family mostly stayed at home during the months he spent in Iraq. The Tribunal accepts the applicant limited any public exposure while he was in Iraq. The Tribunal notes and finds sympathy with the submission that there is a difference between living in a country and spending a contained amount of time there, essentially in hiding.

103. The Tribunal questioned the applicant about why he remained in Iraq for [a time period] after the passports were issued. He said that although the passports were issued [in] 2013 it took some time for them to be dispatched to him and that he had to resort to paying money to Embassy officials to hasten the process. In respect of the second trip to Iraq he has consistently described a protracted process of attempting to obtain [Country 2] visas for his family members which entailed multiple applications and negotiations with the agent but ultimately failed.
104. The applicant claims that his brother [Mr A] worked for the Iraqi army and in the course of his duties arrested persons linked to anti-Sunni militia. He claims another of his brothers was killed by persons linked to the ones arrested searching for [Mr A] and that those people also tried to find him with a view to seriously harming him in their bid to find [Mr A]. The delegate considered the applicant gave a detailed chronological account of what happened to him and his family in Iraq and found his account of events credible. The delegate found there was a real chance the applicant would be harmed having regard to country information in respect of the security situation in Iraq at the time, the targeting of Iraqi army soldiers and the operations of sectarian groups. The delegate also accepted that the applicant could not expect to receive state protection and was unable to relocate in Iraq. Information before the Tribunal supports that the applicant’s brother [Mr A], was granted a protection visa in similar circumstances and remains in Australia. At the Tribunal hearing the applicant was forthcoming in advising that [Mr A] once returned to Iraq several years after being granted a protection visa for a matter of a few weeks due to the death of his wife. There is no evidence to support that he has been to Iraq on any other occasion.
105. The delegate’s decision to cancel the applicant’s visa was based solely on the applicant’s return trips to Iraq without hindrance. The conclusion drawn is that the applicant does not fear harm from anti-Sunni militia or hold the adverse profile he claimed in his protection application. The delegate found he had knowingly provided incorrect information when he applied for his protection visa.
106. 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, having carefully considered the individual circumstances of the case and the claims which were made the Tribunal is of the view that the applicant returning to Iraq on two occasions in 2013 and 2014/15 for periods of [number] months and just over [number] months, in the circumstances described, does not mean that the applicant provided incorrect information, as identified by the delegate, in his protection visa application.   In forming this view the Tribunal notes and finds it significant that the applicant has not claimed to fear the authorities in Iraq or that he would be arrested if he returned to Iraq. The applicant claimed that he fears harm from anti-Sunni militia and that the authorities could not protect him from his persecutors.
107. The Tribunal acknowledges the applicant voluntarily returned to Iraq, the country he stated he feared returning to, however, the Tribunal is persuaded he felt compelled to do so out of deep concern for his family’s safety. The applicant’s evidence, which the Tribunal accepts, is that he took precautions to avoid being identified and harmed while in Iraq, which supports that he maintains his claimed fear of returning to, and living in, Iraq. Whether he has embellished the reasons for his return is of limited relevance because those reasons aside, the Tribunal believes the applicant felt he had no choice but to do what he could to ensure his family were safe and to hasten their departure from Iraq in any way possible.
108. The Tribunal is not of the view that the applicant’s return to Iraq means that he provided incorrect information in his application for a protection visa including about his brother [Mr A’s] actions while on military duty in Iraq, about the actions taken against his family by anti-Sunni militia in connection with this, about his brother being shot dead, or why he was or wouldn’t be similarly targeted by the persons looking for his brother [Mr A] or fear this occurrence again in future. The applicant was unwise and reckless to return to Iraq as it placed him in the position where his visa could be cancelled. However, the sole reason that he did return is not a persuasive reason to find that the information the applicant provided in his application for a protection visa and accompanying statements was incorrect. The Tribunal is not satisfied he provided incorrect answers to questions in his protection visa application simply because he returned to Iraq in the circumstances described.
109. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice.
110. 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
111. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Tania Flood
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 2040

12 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice