1726615 (Refugee)
[2020] AATA 2099
•31 January 2020
1726615 (Refugee) [2020] AATA 2099 (31 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1726615
COUNTRY OF REFERENCE: Iraq
MEMBER:F. Simmons
DATE:31 January 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 31 January 2020 at 6:39pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect answers in visa application – religion – perceived Christian convert – particular social group – mixed religious marriage – three return visits to Iraq – honour killings – retribution from tribe – marriage proposal – medical procedures – passport renewal – state protection – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 46A, 48, 100, 101, 107, 107A, 108, 109, 119, 499
Migration Regulations 1994 (Cth), rr 2.12, 2.41; Schedule 2; Schedule 8, Visa Condition 8559CASES
Jalal v MIMA (2000) 60 ALD 779
MIAC v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27
Zhao v Minister for Multicultural Affairs [2000] FCA 1235Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his application for a protection visa and obtained permanent residence by making false representations. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 30 January 2019 and 17 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant arrived in Australia by boat [in] April 2010 as an unauthorised maritime arrival (UMA). He identified himself as Mr [name] born on [date].
On 2 August 2010 the applicant lodged an application for a refugee status assessment (RSA). This application was accompanied by a signed statement which states:
I am [an age] year old single male born in Al Basra, Iraq. My ethnicity is Arab and I do not have a religion. My parents and [specified family members] remain in Iraq.
Why I left my country:
My parents are Muslim background, my father is Shi'a and my mother is Sunni. I never believed or followed a particular faith.
When I commenced University, I had a good male friend who was a Christian. I became close with his sister. Our relationship developed as my friend had asked me to look out and protect her while I was in the Baath party. I had to be in the Baath party while a University student as it was compulsory.
Our relationship became very close and her family was happy for us to be together, I proposed to her, her parents had no objection except to insist that I convert to Christianity. They were Armenian Christians.
I assumed my father would be comfortable with my changing of religion and intended to tell my father later, that I also wanted to marry a Christian girl, [Ms A]. My father had never openly practiced Islam so assumed he would not care or object.
When I told my father of my intention to convert, my parents were horrified, they did not want me to be in the house, they stated that I was bringing shame to the family and the tribe.
I was disowned and ordered out of the house; he also asked me "what was my reason for wanting to convert as they had no association with Christians?" I was too scared to tell him the true reason as I feared he may have my girlfriend killed. I refused to answer him.
I went to my Aunts house; she also wanted to know the reason of my conversion. Soon after I arrived my father suffered from a heart attack, the family then put even more pressure upon me. I was so fearful of all my family and of returning home. However I told my relatives to pass the message to my father that I would not convert. I then sought the way to leave the country before they discovered I had. I could not proceed with my father's wish as I love my girlfriend and I want to marry her. However I was also afraid that if I did not then the family would seek to have me killed or a member of the tribe would have.
What I fear might happen if I go back to my country: If I go back then the tribe which is very large and part of the [larger tribe] will ensure that I am killed
Who I think will harm or mistreat me if I go back: The [Tribe 1] Tribe.
Why I believe they will harm or mistreat me if I go back: I have brought shame on the tribe who are Islam and I have converted or they will believe I have converted to Christianity.
Why I believe that the authorities in my country will not protect me if I go back: The Government would not protect me as they are against any conversion to Christianity as it is Islam Government. The Government have religious militia in order to stop any such behaviour.
On 4 August 2010 a delegate of the Minister found the applicant was not a person to whom Australia owed protection obligations.
On 15 December 2010 the applicant’s claims for protection were accepted by an Independent Merits Reviewer (IMR) who found that the applicant was a refugee. The IMR’s decision reproduces the statement set out above and summarises the applicant’s evidence to the IMR. This decision concludes:
The reviewer accepts the claims put forward by the claimant that he has incurred the wrath of his father and that his father would not hesitate in making public the claimant’s intentions to convert from Islam to Christianity.
The reviewer accepts the independent evidence that Iraq is wracked by sectarian conflict and that suspicion of apostasy or conversion from Islam might attract severe harm from militant Muslims and that given the current civil war, state protection cannot be guaranteed anyone facing such harm. Indeed, independent evidence cited above indicates that the claimant might even be subjected to state prosecution or police harassment [sic].
The reviewer accepts that the continuing sectarian conflict throughout Iraq makes relocation to a safe place not an option for the claimant.
In the light of the above evidence, the reviewer finds that the claimant has a well-founded fear of persecution for reason of religion.
On 9 May 2011 the applicant applied for a protection visa and this visa was granted on 11 May 2011.
[In] February 2012 the applicant returned to Iraq for [number of days]. While in Iraq, the applicant was issued an Iraqi passport in Baghdad [in] 2012. The applicant used this passport to travel to [Country 1] before returning to Iraq. [In] February 2013 the applicant returned to Australia.
[In] November 2013 the applicant returned to Iraq, arriving in Baghdad. He remained in Iraq for [number] days. [In] August 2014 he departed Baghdad and returned to Australia.
On 18 April 2017 he was sent a notice of cancellation. On 29 April 2017 the applicant provided a response to the notice.
On 30 October 2017 the Department made a decision to cancel the visa.
On 9 February 2018 the applicant was granted a resident return visa(subclass 155).
[In] July 2018 the applicant departed Australia and returned to Australia [in] October 2018.
The legislative power to cancel the visa
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.
Issues on review
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 dated 18 April 2017, 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) in the following respects:
The Notice of Intention to Consider Cancellation (NOICC) on the Departmental file reproduces the applicant’s responses to questions 42–46 of his Form 886C, all of which state ‘Refer to my statement’ and reproduces the following part of the applicant’s statement, dated 24 July 2010, which relevantly states:
Why I left my country:
My parents are Muslim background, my father is Shi'a and my mother is Sunni. I never believed or followed a particular faith...
...I assumed my father would be comfortable with my changing of religion and intended to tell my father later, that I also wanted to marry a Christian girl, [Ms A]. My father had never openly practiced Islam so assumed he would not care or object.
When I told my father of my intention to convert, my parents were horrified, they did not want me to be in the house, they stated that I was bringing shame to the family and the tribe...
I feared he may have my girlfriend killed ...the family would seek to have me killed or a member of the tribe would have.
What I fear might happen if I go back to my country:
If I go back then the tribe which is very large and part of the [larger tribe] will ensure that I am killed
Who I think will harm or mistreat me if I go back:
The [Tribe 1].
Why I believe they will harm or mistreat me if I go back:
I have brought shame on the tribe who are Islam and I have converted or they will believe I have converted to Christianity.
Why I believe that the authorities in my country will not protect me if I go back:
The Government would not protect me as they are against any conversion to Christianity as it is Islam Government. The Government have religious militia in order to stop any such behaviour.
The NOICC notes that on 24 July 2010 the applicant signed the declaration at question 65 of Form 866C which states in part that the information supplied on or with Part C of Form 866 is complete, correct and up to date in every detail. The NOICC states that based on this information and meeting all other relevant criteria the applicant was granted a Subclass 866 Protection visa on 11 May 2011.
Under the heading ‘Reasons for possible non-compliance with section 101(b)’, the NOICC provides details of the Department’s records about the applicant’s travel to Iraq in 2012 and 2013. The following information has not been disputed by the applicant:
· The applicant departed Australia [in] February 2012 on his Australian Titre de Voyage no. [number] and entered Iraq on the same date.
· The applicant departed Iraq [in] February 2013 and returned to Australia [in] February 2013 on his Australian Titre de Voyage no. [number].
· The applicant departed Australia [in] November 2013 on his Australian Titre de Voyage no. [number] and travelled to Iraq.
· The applicant departed Iraq [in] August 2014 on his Australian Titre de Voyage no. [number] and re-entered Australia on the same date.
The NOICC notes that on both occasions that the applicant departed Australia his Outgoing Passenger Card indicated that the country in which he would spend most time abroad was Iraq, and his main reason for overseas travel was visiting friends or relatives.
The NOICC notes that when interviewed by the Department at [the] Airport [in] August 2014 the applicant provided the following information: He had returned to Iraq to marry his girlfriend [but she refused] and to get [Medical Procedure 1]; he was in Iraq for nine months; he returned to Australia to have a [different medical issue] checked by doctors here because he didn’t believe the [Iraqi] [doctors’ medical diagnosis].
The NOICC notes that a search of his baggage by Australian Customs Officers uncovered his Iraqi passport ([number]). The NOICC notes that the Iraqi passport [number] is in the name [variant of the applicant’s name], born [date] and that it was issued in Baghdad [in] 2012 and expires [in] 2020.
The delegate’s decision notes that the applicant’s Iraqi passport [number] contained departure and arrival stamps and visas including the following: [Country 1] visa [number] valid for single entry [between] November [and] December 2012; Iraqi departure stamp for [a date in] November 2012; Iraqi entry stamps for [dates in] November 2012 and [November] 2013; [Country 1] visa [number] valid for single entry from [March] to [June] 2014; Iraqi departure stamp for [dates in] April 2014 and [August] 2014, entry stamp for [April] 2014 and [Country 1] entry and exit stamps.
The delegate considered that the Iraqi passport [number] was genuine because in order to obtain it the applicant would have had to provide the Iraqi authorities with a range of supporting documents such as his birth certificate, Iraqi identity card and Iraqi citizenship certificate and because he had used that passport to apply for visas for [Country 1] and travelled to and from Iraq and [Country 1] on that passport.
The delegate identified that the following information (in bold below) provided in Part C of the applicant’s protection visa application was incorrect:
· At questions 43, 44, 45 and 46 where you referred to your Statement of 24th July 2010 is incorrect as detailed below.
In your Statement of 24th July 2010 in response to the question "What do you fear may happen to you if you go back to that country?" [Iraq] [which corresponds to Q. 43 in your DIBP Form 886C] you claimed:
"If I go back then the tribe which is very large and part of the [larger tribe] will ensure that I am killed"
I consider that your claim that you would be killed for reasons of imputed religious grounds [your actual conversion to Christianity or your family or your tribe's belief that you had converted to Christianity] if you returned to Iraq is incorrect. I find that your claim is incorrect because you have voluntarily returned to Iraq on two occasions for approximately 1 year and 9 months and on both occasions you used your Iraqi passport no. [number] [which you obtained in Iraq during your first return there after your Protection Visa had been granted] to enter and to exit Iraq with no apparent issue. I consider given your voluntary travels back to Iraq under your true identity without significant issue and with no apparent change in your circumstances or in country information suggests you did not hold the claimed adverse profile nor were you of adverse interest to your family or your tribe at time of your protection visa application.
In your Statement of 24th July 2010 in response to the question "Who do you think may harm/mistreat you if you go back?" [to Iraq] [which corresponds to Q. 44 in your DIBP Form 886C] you claimed:
"The [Tribe 1] Tribe."
I consider that your claim that you would be harmed/mistreated by your tribe, the [Tribe 1], if you returned to Iraq is incorrect. I find that your claim is incorrect because you have voluntarily returned to Iraq on two occasions for approximately 1 year and 9 months and on both occasions you used your Iraqi passport no. [number] [which you obtained in Iraq during your first return there after your Protection Visa had been granted] to enter and to exit Iraq with no apparent issue. I consider given your voluntary travels back to Iraq under your true identity without significant issue and with no apparent change in your circumstances or in country information suggests you did not hold the claimed adverse profile nor were you of adverse interest to your family or your tribe at time of your protection visa application.
In your Statement of 24th July 2010 in response to the question "Why do you think this will happen to you if you go back?" [to Iraq] [which corresponds to Q. 45 in your DIBP Form 886C] you claimed:
I have brought shame on the tribe who are Islam and I have converted or they will believe I have converted to Christianity.
I consider that your claim that you would be harmed/mistreated by your tribe, the [Tribe 1], because you have brought shame on your tribe who is Muslim by your actual conversion to Christianity or by your tribe's belief that you had converted to Christianity if you returned to Iraq is incorrect. I consider that your claim is incorrect because you have voluntarily returned to Iraq on two occasions for approximately 1 year and 9 months and on both occasions you used your Iraqi passport no. [number] [which you obtained in Iraq during your first return there after your Protection Visa had been granted] to enter and to exit Iraq with no apparent issue. I consider given your voluntary travels back to Iraq under your true identity without significant issue and with no apparent change in your circumstances or in country information suggests you did not hold the claimed adverse profile nor were you of adverse interest to your family or your tribe at time of your protection visa application.
In your Statement of 24' July 2010 in response to the question "Do you think the authorities of that country can and will protect you if you go back? If not, why not?" [which corresponds to Q. 46 in your DIBP Form 886C] you claimed:
"The Government would not protect me as they are against any conversion to Christianity as it is Islam Government The Government have religious militia in order to stop any such behaviour."
I consider that your claim that you could not ask for protection from the [Iraqi Muslim] Government because the Government is opposed to any conversion to Christianity and because it has religious militia in order to stop any such behaviour if you returned to Iraq is incorrect. I consider that your claim is incorrect because you have voluntarily returned to Iraq on two occasions for approximately 1 year and 9 months and on both occasions you used your Iraqi passport no. [number] [which you obtained in Iraq during your first return there after your Protection Visa had been granted] to enter and to exit Iraq with no apparent issue. I consider given your voluntary travels back to Iraq under your true identity without significant issue and with no apparent change in your circumstances or in country information suggests you did not hold the claimed adverse profile nor were you of adverse interest to your family or your tribe at time of your protection visa application.
Consequently I consider that you have not complied with section 101(b) of the Act as you have provided incorrect answers to questions and incorrect answers in information provided in support of your application for a visa.
In the NOICC the delegate advised the applicant that the response he provides to the information provided and observations made and put to him in the NOICC may be used to reassess Australia’s non-refoulement obligations in relation to him.
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 that his response should provide reasons as to why he thought he had complied, or why he had not complied, with s.101(b) of the Act, why his visa should not be cancelled and provide any supporting evidence. He was advised of the timeframe within which he was required to respond in writing. He was advised of the two-step process when deciding whether to cancel his protection visa and that his written response would be taken into consideration. He was advised of the matters that would be taken into account when considering whether his protection visa should be cancelled, including r.2.41 of the Migration Regulations 1994 (the Regulations), and was advised to address these matters and any other matter he thought relevant in his response.
The NOICC also informed the applicant that his obligations under ss.104 or 105 of the Act continue. He was also informed of the provisions of ss.108, 109, 111 and 112 of the Act.
Response to the notice
In a statutory declaration dated 29 April 2017 in response to the NOICC, the applicant stated:
1- I applied for protection visa in Australia because of the reasons mentioned in my application for protection, these reasons are still continuing and i still fear going back to Iraq for the same reasons that i presented the department of Immigration and Border Protection.
2- My first trip to Iraq was for the period between [February] 2012 and [February] 2013, at that time i landed in Erbil airport and stayed in Erbil all the time between [February] 2012 to [February] 2013 (as you see from the entry and exit stamps on page 9 of the Australian travel documents numbered [number]), The reason why i went to Erbil to see the girl that i loved in Iraq ([Ms A]), my relationship with [Ms A] was the reason why I escaped from Iraq in the first place as I mentioned in my statement to the department upon arriving to Australia, [Ms A] was in Erbil at that time, I saw [Ms A] in Erbil many times in erbil although her family objected to my relationship with her, I was planning to bring her to Australia on partner visa, however I failed in my attempts to bring her with me to Australia because of her family objections to our marriage, I stayed all this time in Erbil because i was the holder of an Australian travel document, Iraqis who held an Iraqi passport were not allowed to stay more than one month as i believe, however because i was holding an Australian document, the Kurdish Authorities allowed me to stay all this period of time in Kurdistan, during this time I was in severe emotional breakdown as a result of my inability to convince [Ms A’s] family about my situation.
3- [In] march 2012, i obtained an Iraqi passport number [number], from Baghdad , i paid someone to get me this passport quickly, it was genuine passport, and it was easy to get new one because the fact that i had previous Iraqi passport (the one that i used to get out of Iraq in my way to Australia), the person who helped me told me that he will manage all the administrative procedures associated with the issuing of the passport, the reason why i obtained an Iraqi passport at that time was that i wanted to do [Medical Procedure 2] in [Country 1] which was famous of doing this sort of operations, also, because i heard some rumours that foreign travel passport holders (such as me) are not able to obtain visa to [Country 1] because I was holding convention travel document and not a normal passport, my [condition] was extremely bad, that is why I went to [Country 1] to this operation, therefore I used the Iraqi passport to get [a Country 1] visa, i used this passport between [April] 2012 and [May] 2012 (for the [Medical Procedure 2]) and between [dates in November] 2012 (because there was [an unrelated symptom developing] and i wanted to check on it), in my first trip to [Country 1] i used the land borders, while in my second trip to [Country 1] i used Baghdad airport in the way to [Country 1] and the land borders point in the way back to Iraq, again, i never stayed anywhere in Iraq apart from Erbil during this time.
4- [In] February 2013, I returned to Australia because i was not able to renew my airline ticket any further.
5- [In] November 2013 I went back to Iraq, this time i was not able to land in Erbil because airline tickets to Erbil were very expensive, therefore I landed in Baghdad, in the same day I went to Erbil by car, again i spent the whole time in Erbil till my departure from Iraq [in] august 2014, in the way back I took a car from Erbil to Baghdad, I never stayed in Baghdad, not even for one night, because I was threatened in Baghdad, all what I have done is taking car from Baghdad to Erbil and from Erbil to Baghdad just to get to the airport. During this time, I also tried my best to convince [Ms A’s] family about my relationship with [Ms A], however, things got worse when I heard some news about direction 62 which was issued in January 2014 which suggest that people who came to Australia were given the lowest priority in sponsoring family members from overseas, I stayed in Erbil because my love to [Ms A] was greater than anything in the world, months passed by without any outcome, in July 2014, i was told by [Ms A’s] family that they were leaving Iraq to [Country 2] because of the situation in Iraq, they therefore told me not to come back and not to try again to convince them, they even prevented her from seeing me, therefore, in august 2014 i left Iraq coming back to Australia.
6- During this time I travelled to [Country 1] between [dates in April] 2014 for [a Medical Procedure 1] operation,
7- I never stayed in any part of Iraq apart from Erbil in my both trips, i went to Erbil for the very compelling reasons represented by love to [Ms A] and my endless attempts to be with her or to get married to her, Erbil is part of the Kurdish autonomous region in Iraq, i did not go anywhere else in Iraq because i still fear for my life for the reasons i mentioned in my application for protection.
8- You referred to my use of the Iraqi passport as an indication that i have no problem with the Iraqi authorities in the border points or the airports, in fact, I sought Australia's protection not because I feared the Iraqi government, the agent of persecution in my case is not the Iraqi government but rather it is my tribe ([Tribe 1]) who are seeking to target me.
9- After [Ms A] left Iraq, i did not go to Iraq at all, because i have nothing left there, she was the only reason for me to go back to Erbil, my trips to [Country 1] were made for medical reasons and were done secretly, I did not leave Australia since 2013.
…
Did the notice comply with the requirements in s.107?
The Tribunal has considered whether the notice issued by the Minister’s delegate complied with s.107.
In considering whether the s.107 notice in this case is sufficiently particularised, the Tribunal has had regard to the comments of the Full Federal Court in the case of Zhao v Minister for Immigration and Multicultural Affairs (Zhao):[1]
Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as maybe open. The supporting information will include a description of any evidence upon which the grounds are based. The grounds, as particularised, may be inferences from the evidence and in that sense conclusionary.[2]
[1] [2000] FCA 1235.
[2] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 at [25]–[26].
Although that case dealt with s.119 of the Act rather than s.107 of the Act, the Full Federal Court subsequently indicated that the statements in the Zhao case ‘are of assistance in terms of the proper interpretation and application of s 107’.[3]
[3] Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 at [57].
Furthermore, the Federal Magistrates Court in SZEEM v Minister for Immigration (SZEEM) stated:
the requirement of ‘particulars’ must, in my opinion, also encompass particulars of the basis upon which the falsity is alleged, and these must be given with enough detail to allow the recipient a real opportunity to understand and attempt to answer the non-compliance allegation.[4]
[4] SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27 at [38].
The applicant’s representative submitted that the NOICC did not sufficiently particularise the possible non-compliance alleged and was therefore invalid. The applicant relied on SZEEM and Zhao and submitted that because of the significance of the consequences, a notice issued under s.107 must contain sufficient detail to tell the recipient what he or she must meet in any response.
As long as the notice refers to information that is alleged to be incorrect and a basis for why the information is incorrect, these are the particulars against which the Tribunal must assess s.108(b).
The Tribunal finds the notice is valid on the basis that it refers to the particulars of the applicant’s claims made in his protection visa application, namely:
a.If the applicant returned to Iraq the tribe that was very large and part of the [larger tribe] would ensure that he was killed;
b.The applicant feared he would be harmed/mistreated by the [Tribe 1] Tribe if he returned to Iraq;
c.The applicant stated that he brought shame on the [Tribe 1] tribe because he had converted or the tribe would believe that he had converted to Christianity.
The NOICC alleges that his two voluntary returns to Iraq under his true identity for extended periods of time without significant issue and no apparent change in circumstances indicate that the information he provided in his protection visa application (set out above) was incorrect at the time of the application.
The applicant’s response to the NOICC sought to address the concerns of the Department by arguing that it was wrong to infer from his two extended trips to Iraq that he provided incorrect information in his protection visa application. The applicant acknowledged returning to Iraq for the two periods identified by the delegate, but denied providing any incorrect information in his visa application, claimed he resided in Erbil for his two periods of residence in Iraq and that the tribe he feared did not operate in Erbil, and that he returned to Iraq for the ‘very compelling reason’ that he loved [Ms A] and wished to marry her.
The applicant contends that his statement signed on 24 July 2010 contains errors which he later corrected. In particular, his statement ‘suggests the applicant converted to Christianity’ which the applicant explained was inaccurate in his interview with the delegate and the IMR. The Tribunal notes that the question of whether the applicant has converted to Christianity is not clearly addressed in his statement, which states:
I have brought shame on the tribe who are Islam and I have converted or they will believe I have converted to Christianity.
The Tribunal accepts that the applicant did not claim that he had converted to Christianity in his interview with the delegate or the IMR. The Tribunal notes that the applicant submitted his application for a protection visa, including the statement made on 24 July 2010, when he applied for a protection visa on 9 May 2011.
The Tribunal does not accept the submissions, made on behalf of the applicant, that s.107 did not comply with the statutory requirements, because ‘the facts which the NOICC issuer relied upon were in itself incorrect’ as the information provided was not information given by the applicant.[5] The NOICC identifies the information the applicant provided in his protection visa application which is said to be incorrect. The fact that the applicant provided subsequent information that he had not actually converted to Christianity but that he would be perceived as a Christian convert does not mean that the delegate failed to particularise the information that the applicant provided in his protection visa application which is said to be incorrect.
[5] It is submitted that, as a result of errors in interpretation, there are mistakes in relation to the information provided in the statement that accompanied his protection visa application about the applicant’s involvement in the Ba-ath party (noting the Ba-ath party was not in power when the applicant was at university). It is unnecessary to deal with this further as the NOICC does not identify this information as the incorrect information.
Section 100 of the Act makes it clear that the answer to a question is incorrect even if the person who gave the answer, or who caused it to be given, did not know it was incorrect. Furthermore, the requirement to give correct information (s.101) is not altered by the subsequent correction of the error. In Jalal v MIMA, Finkelstein J stated:
Whether a non-citizen has given an incorrect answer in his or her application form, or has given incorrect information which is deemed to be an incorrect answer in the application form, is to be determined at the moment the answer is given or the information is provided. Thus, if a question on an application form has been incorrectly answered there will be non-compliance with s101 immediately upon the lodgement of the application form. In the case of incorrect information that is deemed to be an incorrect answer by operation of s99, there will be non-compliance with s101 at the instant the information is given. The fact that the correct answer is given some time later does not alter the character of what had previously occurred.[6]
[6] (2000) 60 ALD 779 at [17]. On appeal, the Full Federal Court observed that ‘[i]t may be, although it is not self evident, that, if the non-citizen corrects any incorrect information in accordance with s.105 before the grant of the relevant visa, then the visa may not be subject to cancellation under Subdivision C on the ground of the prior incorrect statement’; however the question did not arise, and the Court found it unnecessary to express any view about it: (2000) 102 FCR 63 at [19].
However, whether the applicant knew the answer was incorrect at the time it was given and any subsequent correction of the error would be relevant to the consideration of the discretion as to whether the cancellation power should be exercised: s.109(1)(c) and r.2.41.
The applicant did not correct this information or provide the correct information (that he had not converted to Christianity) in writing in accordance with s.105 of the Act. However, the Tribunal acknowledges that in his interview with the delegate and the IMR the applicant gave evidence that he had not actually converted to Christianity but maintained he would be at risk of harm because he would be perceived as a Christian convert. While the applicant’s evidence is that during the refugee assessment process he clarified that he did not claim to have converted to Christianity,it was his evidence that the following information provided in his protection visa application was correct at the time it was given:
a.If the applicant returned to Iraq the tribe that was very large and part of the [larger tribe] would ensure that he was killed;
b.The applicant would be harmed by [Tribe 1] if he returned to Iraq;
c.The applicant brought shame on [Tribe 1] because they would believe that he had converted to Christianity.
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.
Evidence before the Tribunal
There are no s.438 certificates on the files before the Tribunal. The Tribunal has considered the Departmental file in relation to the protection visa application, the Departmental file in relation to the cancellation of the protection visa, and the material on the Tribunal file.[7] The Tribunal sought and obtained a copy of the IMR’s decision in the applicant’s case as well as audio recordings of the applicant’s interview with the delegate and the IMR.
[7] [File numbers]
The Tribunal has considered all the evidence before it. The Departmental file records that when the applicant arrived in Australia he provided various dates of birth and aliases. These variations may be attributable to transliteration issues. As discussed at the hearing, the applicant’s identity is not an issue and, for the avoidance of doubt, the Tribunal places no adverse weight on this information.
In submissions dated 24 January 2019, it was submitted:
a.The NOICC is invalid because it does not provide sufficient particulars of the non-compliance in circumstances where the applicant did not claim he left Iraq because he feared the Iraqi government.
b.The applicant resided in Erbil for the duration of the two periods of the residence in Iraq. The tribe does not operate in Erbil. Therefore, there was not non-compliance of the type described.
c.The applicant entered Iraq via Erbil International Airport [in] February 2012 and departed Erbil International Airport [in] February 2013. It is submitted that the applicant stayed in Erbil for the duration of his first period of residence in Iraq with the exception of his travel between Iraq and [Country 1]:
i.The applicant travelled overland from Iraq to [Country 1] [in] April 2012 and returned to Iraq [in] May 2012;
ii.[In] November 2012 the applicant used Baghdad airport to travel to [Country 1] and he re-entered Iraq via [a named] border point [in] November 2012.
d.After returning to Australia, the applicant returned to Iraq on a second occasion [in] November 2013. The applicant entered via Baghdad International Airport and departed Iraq [in] August 2014 via the Baghdad International Airport and it is claimed he resided in Erbil during his second period of residence in Iraq.
e.[In] April 2014 the applicant travelled to [Country 1] from Iraq and returned to Iraq [later in] April 2014. He claims he did so to undergo [Medical Procedure 1].
f.The applicant submitted the following documents in support of his claims to have been resident in Erbil during the period of his residence in Iraq: a rental contract in the name of the applicant, dated [in] February 2012, for the period [February] 2012 to [August] 2012, for the property [Property 1]; and a rental contract in the name of the applicant, dated [in] November 2013, for the period [between] November 2013 [and] May 2014, for the property [Property 2].
The applicant appeared before the Tribunal on 30 January 2019 and 17 July 2019. At the hearing the applicant was asked about his travel to Iraq, his travel between [Country 1] and Iraq, how and why he obtained an Iraqi passport in 2012, and his activities in Iraq. The applicant told the Tribunal he left Iraq in 2013 and returned to Australia as [Ms A’s] father continued to delay and he was unable to renew his flight back to Australia after the period of one year. The applicant denied seeing relatives in Iraq and said he had contact with friends. When asked why he decided to go back to Iraq in 2013 the applicant said because of [Ms A]. Where relevant his evidence is discussed further below.[8]
[8] The Tribunal notes that at the hearing the applicant was asked why his entry interview listed his father’s phone number as an emergency contact. The applicant could not recall how his father’s number came to be recorded as an emergency contact. He may have provided this number to the Australian authorities in case he passed away in Australia or there may have been an issue with interpreting. There is no audio recording of the entry interview before the Tribunal. The Tribunal accepts that, because of the passage of time, the applicant cannot recall in what context he provided his father’s contact details. For the avoidance of doubt, the Tribunal places no adverse weight on this information and draws no adverse inferences from it.
The applicant told the Tribunal he travelled to [Country 1] in 2018 and returned to Australia. The applicant provided copies of his Australian Titre de Voyage with [a Country 1] visa for the period [specified between] May 2018 [and] August 2018. When asked, he denied travelling to Iraq. When asked whether he could produce his Iraqi passport, he said he had moved from place to place so he was not sure where he had put it. He claimed he found the cover but not the passport. Asked whether he had reported it lost, he stated he wasn’t aware that it was lost, and he always had the perception he had his passport with him but he had brought that passport to his lawyer and he made copies and he suspected that he lost it when he moved house. He has not reported the passport missing as ‘that passport is useless’ to him. It was put to him that he had used his Iraqi passport on his previous travel back to Iraq and he was asked to present his passport at the resumed hearing or explain why he could not do so.
After the hearing was adjourned on 30 January 2019. Before it resumed on 17 July 2019 the Tribunal received a submission dated 14 April 2019 which makes the following points:
a.The applicant believes his Iraqi passport may have been among the documents that were stolen from his car and he has recently added the loss of his Iraqi passport to an earlier police report.
b.The applicant maintains that he never used his Iraqi passport after 2014 and that in 2014 he only used his Australian Titre de Voyage. The applicant maintains he travelled to [Country 1] in 2018 and not to any other country.
c.The submission attached a statutory declaration by the applicant stating he could not produce his Iraqi passport. He gave evidence he travelled in and out of [Country 1] in 2018 and denied travelling to Iraq.[9]
d.The applicant was able to obtain a passport that was issued in Baghdad without being present in Baghdad because of bribery and this is supported by a country information report from Landinfo.
e.The applicant maintains he was unable to get a passport from Erbil itself because he thought that there is no such thing available in Erbil and also that the law requires him to present other evidence that he did not have with him in Erbil and therefore he sought his friend’s assistance.
f.The Danish Immigration Services report supports that the applicant can stay in Erbil as Asayish can approve the stay of a person who wishes to stay in the KRI for an extended period of time.
g.With respect to the Tribunal’s concerns that the phone numbers on the rental agreements did not have an Erbil area code, it was submitted the phone numbers were mobile phone numbers.[10]
[9] Tribunal file, f.150 (statutory declaration 16 April 2019).
[10] Tribunal file, f.131–141.
The Tribunal notes the applicant’s evidence to the Tribunal was that he had lost his Iraqi passport. For the purpose of this review and in the absence of any evidence to the contrary, the Tribunal accepts his evidence that he travelled to [Country 1] on his Australian travel document and that he did not travel to Iraq in 2018. For the purpose of this review, the Tribunal accepts that he was unable to produce his Iraqi passport because he has now lost the passport. This issue is not considered further.
The Tribunal has considered the post-hearing submissions dated 18 July 2019 and the country information referred to therein.
Findings and reasons
For the reasons that are set out in detail below, the Tribunal had serious concerns about the credibility of the applicant’s testimony and has concluded that he is not a credible witness. Before the Tribunal the applicant claimed that at the time he returned to Iraq he still feared harm from the tribe (as stated in his protection visa application) but he stayed for the whole duration of his periods of residence in Iraq in Erbil and his tribe had no existence in Erbil. However, the Tribunal found the applicant’s explanation as to how he obtained an Iraqi passport issued in Baghdad while remaining in Erbil was not credible and his evidence that he travelled to [Country 1] secretly for medical treatment was contrived and not credible. The Tribunal rejects as contrived, and inconsistent with the applicant’s conduct, his claim that he did not go outside of Erbil because he still feared for his life for the reasons he gave in his protection visa application. The Tribunal also found improbable his evidence that he returned to Iraq on two occasions to convince his girlfriend to marry him in circumstances where he remained in Iraq for prolonged periods of time but did not marry his girlfriend and now claims that he is unable to contact his girlfriend as she relocated to [Country 2] sometime in 2014 and her parents told him not to contact her.
Claimed reason for returning to Iraq
The applicant told the Tribunal that he had a ‘strong motive’ to go back to Iraq, which was that he wanted to marry the Christian woman ([Ms A]) he referred to his protection visa application. The applicant pointed to the fact that in his entry interview he told the Australian authorities he would return to Iraq to marry a Christian girl. The Tribunal notes that in his entry interview (a partial copy of which was provided to the Tribunal by the applicant) the following exchange is recorded:
Why did you leave your country of nationality?
I was in love with a Christian Armenian girl she was an Iraqi. I wanted to marry her but I had to change my religion. The girl and her parents didn’t agree until I changed my religion. I wanted to change but my parents + relative didn’t agree (Not practising religion) I came to this country seeking freedom because I still love her. Over there you cannot change your religion at all. [Ms A]. She was with me at university. My parents know I am here. When I made a decision I told them I am leaving. This is the main reason. I lost all the numbers for her contact
How will you contact her?
I promised one day I must go back to Iraq. If I am found suitable in this place I will go back and marry her. Or maybe we can go to any country that will marry us…
The Tribunal considers it is somewhat strange that the applicant did not retain the contact details of the woman he intended to marry when he travelled to Australia. However, the applicant told the Tribunal that [Ms A] subsequently emailed him and that they resumed contact and when he was interviewed by the IMR he provided the IMR with a telephone number to contact his girlfriend. As discussed at the hearing, the IMR was not able to make phone contact with [Ms A]. The IMR drew no adverse inferences from this fact; rather, the IMR considered it reflected favourably on the applicant that he was willing to have the IMR telephone his girlfriend without warning. In this context, the Tribunal has considered the applicant’s argument that his return travel to Iraq was consistent with his earlier statement that he would return to Iraq to marry [Ms A] and that his desire to marry [Ms A] was a compelling reason for returning to Iraq.
However, this is not a case where an applicant has returned to Iraq for a brief period of time in order to marry and then returned to Australia. This is a case where the applicant, who claimed in his protection visa application that the tribe would ensure that he would be killed if he returned to Iraq, nonetheless returned to Iraq on two separate occasions for prolonged periods of time. It is also a case where the marriage that he claimed he went to Iraq to enter into never actually occurred and where there are serious credibility concerns about his evidence about his activities and movements in his periods of residence in Iraq, including the circumstances in which he obtained an Iraqi passport.
The Tribunal acknowledges that the applicant has never claimed to fear harm from Iraqi authorities (only that they would not protect him from the harm he feared at the hands of the tribe) and that he claims that he only resided in Erbil and his tribe did not operate in Erbil so he did not have to face the feared harm. However, for the reasons set out below , the Tribunal is concerned that the fact the applicant voluntarily returned to Iraq on two separate occasions for a total period of year and nine months in circumstances where he claimed he still held the fears set out in his protection visa application indicates that he did not have a subjective fear of harm in Iraq, either at the time he voluntarily returned to Iraq in 2012 and 2013 or at the time he provided information about his claims in his protection visa application. Furthermore, for the reasons detailed below, the Tribunal did not find the applicant’s account of his movements and activities during his two periods of residence in Iraq to be credible and therefore does not accept his assertion that, while in Iraq, he resided solely in Erbil. These concerns are discussed in detail below.
First voluntary return to Iraq
The Tribunal is satisfied on the evidence contained in the applicant’s travel document and the airline ticket and boarding pass that the applicant did enter Iraq at Erbil International Airport [in] February 2012 and departed Erbil International Airport [in] February 2013. The Tribunal is satisfied that the applicant was issued an Iraqi passport in Baghdad [in] 2012. However, for the reasons that follow, the Tribunal does not accept that the applicant remained in Erbil during the period of his first stay in Iraq and finds his evidence about his movements in Iraq and how and why he obtained an Iraqi passport not credible.
The Tribunal finds not credible the applicant’s evidence about how he obtained the passport in Iraq in March 2012. Given the applicant’s evidence was that he remained in Erbil for the duration of the first period of residence in Iraq, the Tribunal asked the applicant why his passport indicates it was issued in Baghdad. The applicant acknowledged the passport states it was issued in Baghdad but he denied being in Baghdad when the passport was issued. When asked how he acquired his Iraqi passport, he said he acquired the passport through his [Friend A] because from time to time he went to Baghdad and he had connections in the passport office. Because he wasn’t there he gave [Friend A] money to get the passport issued and because he had connections he was able to get him the passport and the visa.
The Tribunal had difficulty understanding why the applicant would have gone to this trouble when the country information indicated that he would have been able to obtain a passport in Erbil if he lived there. The Tribunal put to the applicant country information as follows:
The passports are issued in Baghdad and in the provincial capitals. All passports are produced in Baghdad and therefore "Baghdad" is listed as the place of issue on all passports (Iraqi Embassy in Amman, meeting October 2010; Iraqi Embassy in Oslo, conversation March 2012; GDN, meeting in Baghdad April 2012). However, the passports are personalised locally in the provinces (Nezer Rahmatollah, meeting in Erbil November 2013). A complete list of all passport offices in Iraq is available on the website for GDN.
Iraqi citizens can apply for passports in the province in which they live, even if their ID documents are issued in another province.[11]
[11] >
The Tribunal noted that the same report provides the following information about obtaining passports from Baghdad: In Baghdad passports can be issued the same day ID documents are submitted and upon retrieving the passport fingerprints need to be submitted which are checked against the fingerprints submitted with the application. It also states that the following documents need to be submitted: a national ID card, an Iraqi nationality certificate, proof of residence, and two passport photos.[12]
[12] >
It was put to the applicant it was difficult to understand how he acquired the passport from the Baghdad office if he never went to Baghdad to be fingerprinted. The applicant then claimed, for the first time that he put his fingerprints on a blank piece of paper along with his signature and giving these documents and Iraqi documents to an associate. He claimed that his associate took these and got the passport and visa in Baghdad as with bribery and money you can go a long way in Iraq. He also claimed that the passport he obtained in Iraq was a genuine passport and this was proved by the fact that he had used this passport to enter and exit [Country 1] as he would not have been able to do so if it was a false passport.
The applicant said he would not have been able to obtain a passport in Erbil as his residency was recorded as in Baghdad. He said the situation in Iraq was not like in Australia: if you were recorded as a resident of Baghdad you were unable to get your passport from a different area because the records are in your father’s name, your name and place of residency and the residence card that states where you live. He said he had no idea if the situation had changed now, but this was the situation previously. His records for his family and place of residence were in Baghdad and his friend who helped him went to Baghdad as if they went to Erbil they would ask for documents that he did not have; for example, for his place of residence.
The Tribunal does not accept that the applicant arranged for an associate to obtain an Iraqi passport in Baghdad. The Tribunal found not credible the applicant’s claim that he met the requirements for fingerprints to be submitted upon application and retrieval of the passport by providing a friend with a piece of paper with his fingerprints on it. The Tribunal notes that the applicant has not produced any official proof of residence in Erbil in the relevant period and considers the fact his passport was issued in Baghdad [in] 2012 indicates he was present in Baghdad at this time. The Tribunal does not accept that the applicant has credibly explained why he would have bribed an associate to obtain a passport for him in Baghdad when the country information indicates he could have obtained a passport in Erbil if Erbil was in fact where the applicant he was living. While the Tribunal has considered information which indicates that passports can be obtained by bribery, the Tribunal remains concerned that the applicant’s evidence about how and in what circumstances his passport was obtained has shifted over time and undermines his claim that he was resident in Erbil at that time. The Tribunal is drawn to the conclusion that the reason he applied for a passport in Baghdad in 2012 is that he was resident in Baghdad at this time.
Compounding the Tribunal’s concerns, the applicant’s evidence about why he acquired an Iraqi passport in 2012, less than a year after being granted a protection visa in Australia, was not credible. When asked to explain why he obtained his Iraqi passport he told the Tribunal he required medical treatment as he had problems with his [health] at the time and that such treatment was cheaper in [Country 1] than Iraq. Friends gave him information about the treatment and doctors in [Country 1] so he took a name of a very famous doctor in [Country 1]. However, while the applicant claimed he required [Medical Procedure 2], he told the Tribunal that he did not undergo such surgery in [Country 1] as he had not checked whether this ‘[specialist]’ was in fact in [Country 1] before he travelled overland to [Country 1], and when he arrived in [Country 1] he discovered the famous [specialist] was in [another country] and he returned to Iraq the same way he had come. When asked whether he ever had [Medical Procedure 2], he stated he did not as it turned out he had [other symptoms] and now he has tablets. The Tribunal finds it strains credulity that the applicant would acquire an Iraqi passport so that he might obtain medical treatment in [Country 1] and travel overland to [Country 1] for medical treatment without making any appointment to see a famous doctor who he claims he wanted to treat him only to discover that this doctor was in [another country], ‘get bored’ and return to Iraq.
The Tribunal does not accept that the applicant has been truthful about why he obtained an Iraqi passport in 2012 and finds his evidence that he did so because he required medical treatment in [Country 1] is not credible. While the Tribunal accepts that he travelled to [Country 1] on two occasions during his first period of residence in Iraq, the Tribunal does not accept he travelled to [Country 1] for [Medical Procedure 2] as claimed in the response to the NOICC. The Tribunal notes that he claims on the second occasion he travelled to [Country 1] in 2012 he did so to check out [another condition] because he was concerned that it might be [serious] and that he subsequently had this [condition] checked in Australia. The medical records the applicant provided to the Department indicate that he had [this condition] examined by Australian doctors in 2015 ([diagnosis] was identified). However, these records do not refer to the applicant being treated in [Country 1] and a record from January 2015 records that the [condition] was [treated] in Iraq in May 2014.[13] The Australian medical records do not support the applicant’s claims that he travelled to [Country 1] for medical treatment in 2012. The Tribunal did not find the applicant’s evidence that he travelled to [Country 1] for medical treatment was not otherwise credible by reason of persuasive detail or corroborating documentation.
[13] Departmental file, f.129.
The Tribunal finds that the applicant obtained a genuine Iraqi passport when he was in Baghdad in March 2012. The Tribunal finds the applicant has not told the truth about his movements in Iraq or the reasons that he travelled between [Country 1] and Iraq in 2012. The Tribunal finds the applicant has provided false information to the Tribunal about how he obtained his Iraqi passport in an attempt to hide the fact that he did in fact travel to Baghdad during his first period of residence in Iraq. This, in turn, leads the Tribunal to disbelieve the applicant’s evidence that he resided in Erbil for the duration of his first voluntary return to Iraq and to disbelieve his evidence that he did not travel or reside in Baghdad because he was afraid of being killed by [Tribe 1].
Second voluntary return to Iraq
It is not in dispute that the applicant entered Iraq at Baghdad airport [in] November 2013 and departed Baghdad airport [in] August 2014. Asked why he decided to go back to Iraq in 2013 the applicant said because of [Ms A] and he claimed ‘he did not stay for long’. However, as the Tribunal put to the applicant, pages of his passport show he stayed in Iraq for [number] days, which the Tribunal considers to be a significant period of time. Furthermore, the Tribunal considers the fact that the applicant entered and exited Iraq through Baghdad International Airport casts doubt on his claims that he remained in Erbil for the duration of his second period of residence because he was afraid of being harmed by his tribe.
The Tribunal does not accept that the applicant, who had the means to fund his travel to Iraq and his travel between Iraq and [Country 1] as well as [Medical Procedure 1], travelled to Baghdad rather than Erbil because airline tickets were very expensive. To the Tribunal he stated he had a problem with [Ms A] and so had to leave urgently, but no such problem is referred to in his response to the NOICC. He claimed the difference in cost between flying to Erbil and Baghdad was about $500–$600. He added that he didn’t think it was a risk returning to Baghdad because he landed at night at Baghdad airport. He claimed he couldn’t find a flight to Erbil so he drove four to five hours to Erbil. He claimed his [Friend A] received him for a few days until he rented a place as he did not have a residency permit and he went to the Kurdish Security Department. He claimed he did not work in Erbil and stayed in Erbil because he hoped to convince [Ms A’s] family to allow them to marry.
The Tribunal also considers that the applicant’s claim that he remained in Erbil for the duration of his second period of residence in Iraq is undermined by the fact he travelled overland between [Country 1] and Iraq in April 2014. The applicant gave evidence he [had a physical condition] and [Ms A] always commented on how he looked so he travelled to [a named city] in [Country 1] and underwent [Medical Procedure 1] that cost about 700 AUD and that he paid for this procedure by borrowing money. He did not dispute that the cost of [Medical Procedure 1] cost more than it would have cost to fly direct to Erbil instead via Baghdad. His evidence was he travelled to [Country 1 overland]. He referred to a religious festival and he claimed he travelled to [Country 1] at this time as he would not attract attention. When information was put to him that he could have flown from Erbil to [Country 1] on [a named airline], he denied that there were flights between Erbil and [Country 1] at that time. Be this as it may, the Tribunal finds his conduct in travelling overland from Iraq to [Country 1] to obtain [Medical Procedure 1] is difficult to reconcile with his evidence that he kept a low profile in Iraq and only returned to Iraq because he want to marry [Ms A].
The Tribunal also found the applicant’s evidence about why he left Iraq via Baghdad airport rather than Erbil confused and unconvincing. He gave evidence that at the time he was to depart Iraq the flight was changed from Erbil and he couldn’t book a flight from Erbil to Baghdad. In the Tribunal’s view, the fact that the applicant departed Iraq from Baghdad International Airport casts further doubt on his claim that he resided solely in Erbil for his second period of residence in Iraq and his assertions that, while in Iraq, he avoided Baghdad or any other area of Iraq because he was afraid of being killed by his tribe. While it is possible that the applicant spent some time in Erbil during his second period of residence in Iraq, the Tribunal does not accept that he resided solely in Erbil during this period.
Stated reason for returning to Iraq and claims he only resided in Erbil
The applicant gave evidence that he returned to Iraq to marry [Ms A] and that he in Erbil during his two periods of residence in Iraq and his tribe did not operate in Erbil so he did not face harm. The applicant gave evidence that during both periods of residence in Iraq he was unemployed and relied on friends to lend him money. He gave evidence he did not have any problems living in Erbil. When asked what he would do in Erbil, he said he would go out and from time to time he would meet [Ms A]. In response to questions about how he was able to support himself in Iraq for a year and nine months and to travel to [Country 1] on multiple occasions including to undergo a $700 [Medical Procedure 1], the applicant gave evidence friends lent him money and he had some savings from assets sold in Australia.
The Tribunal found the applicant’s evidence about why he never married [Ms A] to be confused and unpersuasive. In the response to the NOICC he stated that her family objected to her relationship and things got worse when Direction No.62 was issued in January 2014. In evidence to the Tribunal he stated her parents did not let the marriage go ahead because they wouldn’t agree until he had citizenship and he could bring her to Australia. The Tribunal notes that on 19 December 2013, the Minister gave a written direction under s.499 of the Act in relation to the order of priority for the determination of Family stream applications with the lowest priority given to applications in which the applicant’s sponsor is a person who holds a permanent visa and who entered Australia as a UMA. However, while the applicant claims he was aware of this direction from at least January 2014, he nonetheless remained in Iraq until August 2014 and the Tribunal does not accept he has adequately explained why there was no clarity on whether the marriage would proceed at an earlier point in time. The applicant gave evidence in 2014 that [Ms A] and her family left Iraq and travelled to [Country 2] because the situation in Iraq was deteriorating because of Daesh (ISIS) and her parents told him not to contact her any more. He could not recall when she moved to [Country 2] although he subsequently said it was about two or three days before he returned to Australia.
When the Tribunal put to the applicant it was difficult to accept that it didn’t become clearer at an earlier point in time that there would be no marriage, the applicant’s evidence shifted. He initially said that her parents were not making the matter easy and also the problem was he didn’t put his matters in order. He didn’t have money for a house or accommodation; the reason on his side added to the fact that her parents procrastinated. At no stage in evidence to the Tribunal did the applicant suggest the fact that he had not converted to Christianity was a barrier to the marriage. Even if the Tribunal were to accept that there was a woman in Iraq the applicant was interested in marrying, the Tribunal does not find credible that it took one year and nine months for it to become apparent that the marriage would not proceed. The Tribunal considers that it makes little sense that the applicant would remain in Erbil attempting to arrange a marriage for a prolonged period of time without employment or spend money travelling to [Country 1] for [Medical Procedure 1] if part of the reason that the marriage had not occurred was that he didn’t have the money for accommodation.
With regard to the ability of Iraqis to relocate to Iraqi Kurdistan, independent sources indicate that upon entry into the Kurdish region, returnees are required to register with the Mukhtar Office and the Asayish Office in the neighbourhood in which they would like to reside and are then issued an Information Card (i.e. Residency Card) which allows them to move around the Kurdish region freely and access services. A source consulted by a joint fact-finding mission to the KRI undertaken by Denmark and the UK between 26 September to 6 October 2015[14] stated that it was possible to enter the Kurdistan region of Iraq without sponsorship, however, in order to work or settle in the region sponsorship was required although other reports indicate that the sponsorship requirement had been abolished and that selling sponsorships had become a business.
[14] Danish Immigration Service & UK Ministry of Immigration, Integration and Housing 2016, The Kurdistan Region of Iraq (KRI) - Access, Possibility of Protection, Security and Humanitarian Situation, 11 April 2016, p.14 < CIS38A8012737
The applicant has not submitted any official documentation (i.e a residency card) corroborating his claims that he resided in Erbil. In the response to the NOICC the applicant did not indicate that he had a sponsor or a residency card in Erbil and stated:
I stayed all this time in Erbil because I was the holder of an Australian travel document, Iraqis who held an Iraqi passport were not allowed to stay for more than one month as I believe, but because I was holding an Australian document, the Kurdish authorities allowed me to stay this whole period in of time in Kurdistan.
The Tribunal put to the applicant that country reports indicated that as an Iraqi from outside the Kurdistan region, to reside in Iraqi Kurdistan, he required a residency card to remain in Erbil for more than a month.[15] The applicant said yes, that is the case if he used his Iraqi passport but he was considered to be a foreigner because he used the Australian travel document. The Tribunal notes that the applicant’s Australian Titre de Voyage identifies the applicant as an Iraqi citizen and that his Iraqi passport was reissued while he was in Iraq and he used this passport to travel between Iraq and [Country 1]. The Tribunal could not locate any country information that supported his claim that he was treated differently from other Iraqis from outside the KRI because he held an Australian Titre de Voyage.
[15] Danish Immigration Service & UK Ministry of Immigration, Integration and Housing 2016, The Kurdistan Region of Iraq (KRI) - Access, Possibility of Protection, Security and Humanitarian Situation, 11 April, p.20 <>
The Tribunal found the applicant’s evidence about the basis upon which he was permitted to reside in Erbil was confused and shifted over time. It was not otherwise found credible by corroborating documentation (in the form of a residence card or permit). The applicant initially told the Tribunal he never obtained a residency card in Erbil. He claimed he had no card but told the Tribunal that when he arrived there they gave him a paper and told him he had to go to the department of security in Erbil. He claimed that because he had a friend he had connections and he was given a residency permit in Erbil for one year. When asked whether he had a residency permit, he said he provided his Australian travel document and he was told that because of that he was given a paper to stay. Asked if he had that paper he said no, because it was taken from him when he departed Erbil. When he received the NOICC, it was three years later and he did not keep these documents.
The applicant told the Tribunal he rented a flat in Erbil through a friend who previously lived in Baghdad and who has residency in Baghdad and Erbil. He provided a copy of a Residence Card and its translated copy, issued to [Friend A], from the Kurdistan Region Government, General Security Directorate (Asayish) in Erbil, dated [in] 2016. He gave evidence that it was this person ([Friend A]) who helped him rent a flat. When questioned about the address and location of the apartment, he stated it was located in [a location] about 15 minutes away from the centre of Erbil in a residential complex mostly populated by Arabs. Asked to provide a specific address, he gave evidence he stayed at [Property 3] (he didn’t have a number) for the duration of his stay apart from the time that he travelled. After initially stating his [Friend A] rented him the apartment, he clarified [Friend A] took him to a real estate office and his landlord was [name].
The Tribunal put to the applicant it would consider how much weight it could give the rental contract as these documents provided little information about where he was living. The Tribunal noted that the rental records from his first trip to Iraq said he was living at [Property 1] and it provided the name of the real estate office and three phone numbers none of which carried the area code for Erbil. In post-hearing submissions it was submitted that all the phone numbers listed on the rental contract were mobile telephone numbers and therefore it was plausible they belonged to individuals in Erbil. Be this as it may, the Tribunal considers that the rental contracts contain very little detail about the applicant’s place of residence in Erbil (e.g. only apartment names, no address and the dates on the documents only relate to part of the period that the applicant was in Iraq). Of concern: while one rental contract states the applicant stayed at [Property 1] during his first period of residence it is not consistent with the oral evidence provided at the hearing which was that he stayed at [Property 3] and did not have the number.
The Tribunal also considers the applicant’s evidence that he only resided in Erbil contrived, undermined by travel records that show he travelled in and out of Baghdad airport in 2013 and 2014 and inconsistent with the fact that he was issued an Iraqi passport in Baghdad in 2012. The applicant’s claims to have been resident in Erbil was not otherwise credible by reason of official documentation corroborating his claim that he was permitted to remain in Erbil and the Tribunal considers the documents (rental agreements) that have been provided lack probative value. While the applicant may have a friend who lives in Baghdad and has a residency card in Erbil, the Tribunal notes that the applicant made no formal request to have the Tribunal take evidence from this friend and, even if the applicant had a friend in Iraq who was prepared to tell the Tribunal that the applicant resided in Erbil, the Tribunal does not accept that such evidence could overcome the Tribunal’s concerns about the credibility of the applicant’s testimony about his reasons for returning to Iraq on two occasions for prolonged periods of time, the circumstances in which he acquired an Iraqi passport issued in Baghdad, his movements within Iraq, his reasons for travelling between Iraq and [Country 1], and the credibility of his claims that he resided solely in Erbil.
Overall, the Tribunal does not consider the applicant’s evidence about his residence in Erbil to be credible. The Tribunal is satisfied that he did not reside exclusively in Erbil for his two periods of residence in Iraq. The Tribunal has considered, but does not accept, the suggestion that the passage of time between the applicant’s claimed residence in Erbil and the issuing of the NOICC explains the problematic aspects of his evidence, including why he has no official documentation corroborating his claim that the Kurdish authorities permitted him to stay in Erbil. The Tribunal is concerned the applicant’s evidence about the basis upon which he was permitted to stay in Erbil was confused and shifted over time (for instance, the applicant initially told the Tribunal he did not have a residency card before suggesting that he did have a ‘paper’ given to him by the Kurdish authorities but it was no longer in his possession as it was taken from him when he departed Erbil whereas his initial response to the NOICC made no mention of a sponsor or a residency card or having documents taken from him when he departed Erbil). The Tribunal is satisfied that the applicant’s evidence about his residence in Erbil is not reliable and finds that his evidence that he resided solely in Erbil for his two periods of residence in Iraq is not credible.
Overall analysis
Having carefully considered the applicant’s evidence and the concerns set out above, the Tribunal has formed the view that the applicant is not credible witness.
The Tribunal finds that the applicant voluntarily returned to Iraq in February 2012 after he was granted a protection visa in May 2011. The applicant did not claim that his belief that he would be killed or harmed by his tribe or family had subsided or changed or that he took a calculated risk in returning to Iraq. Rather it was the applicant’s evidence that he remained at risk of harm but was able to avoid being harmed because he remained in Erbil for the duration of his two periods of residence in Iraq. For the reasons given above, the Tribunal finds that the applicant’s evidence that he resided solely in Erbil for the duration of his two return trips to Iraq is not credible. The Tribunal is also satisfied that the applicant has not told the truth about how and why he obtained an Iraqi passport in 2012 and considers this reflects very poorly on his credibility as a witness.
The Tribunal accepts that not every return to a country of claimed persecution leads to a conclusion that an applicant has provided incorrect information in their application for protection. The submissions made on the applicant’s behalf refer to the introduction of condition 8559 into the Regulations in June 2013, which contemplates the possibility of return in exceptional circumstances, although it is noted this condition does not apply to the applicant as he was granted a protection visa in May 2011. The submission also quotes the UNHCR ‘Handbook On Procedures And Criteria For Determining Refugee Status’ in relation to the issue of whether a refugee has voluntarily re-availed themselves of the protection of their home country, which states:
Where a refugee visits his former home country not with a national passport but, for example, with a travel document issued by his country of residence, he has been considered by certain States to have re-availed himself of the protection of his former home country and to have lost his refugee status under the present cessation clause. Cases of this kind should, however, be judged on their individual merits. Visiting an old or sick parent will have a different bearing on the refugee's relation to his former home country than regular visits to that country spent on holidays or for the purpose of establishing business relations.
With respect of obtaining and using a passport issued by the country of origin, the applicant’s representative notes that the UNHCR Handbook states that, in the absence of evidence to the contrary, obtaining such a passport will cease refugee status but refers to the PAM3 guidance which notes that, in contrast to the guidance in the UNHCR Handbook, the limited Australian case law on Article 1C(1) indicates that there is no presumption that obtaining a passport from the country of origin means that the refugee intends to re-avail themselves of the protection of that country.
The mere fact that the applicant returns to their country of origin does not, in and of itself, necessarily indicate that the stated fear of harm in that country at the time of their protection visa application was not genuine or that the statements made or questions answered were incorrect. All the circumstances of the case need to be considered. However, in this case the Tribunal considers it is appropriate to draw an inference that the applicant provided incorrect information in the way described in the NOICC. The Tribunal has reached this conclusion after considering the applicant's claims for protection, his evidence about his movements and activities during his return visits, his evidence about why he returned to Iraq on two occasions for extended periods of time, where he lived when he returned, and how and why he obtained an Iraqi passport less than a year after being granted a protection visa. Significantly, the applicant did not claim his circumstances had changed since he made a protection visa application or that the country information has changed such that the risk had diminished. Rather it was his evidence that he still feared harm for the reasons stated in his protection visa application and this was why he remained in Erbil, where he claimed his tribe did not operate, for the duration of his two periods of residence in Iraq, only travelled to [Country 1] ‘secretly’ for medical treatment and paid someone to obtain his Iraqi passport in Baghdad.
The Tribunal finds that the applicant voluntarily returned to Iraq twice, on both occasions for extended periods of time, and he has not provided a credible account of his activities and movements in Iraq. The applicant was unable to credibly explain why, if he intended to reside in Erbil, he entered Iraq via Baghdad International Airport in 2013 and departed Iraq by Baghdad International Airport in August 2014 or why he obtained an Iraqi passport issued in Baghdad in March 2012. His evidence that he travelled between [Country 1] and Iraq during his first period of residence secretly for medical treatment was not credible and, even if it were to be accepted that the applicant underwent [Medical Procedure 1] in [Country 1] in 2014, the Tribunal does not consider that travelling overland between [Country 1] and Iraq for such a purpose is consistent with his evidence that he kept a low profile in Iraq and only returned to Iraq to marry his girlfriend.
For the reasons given above, the Tribunal finds his evidence about his reasons for returning to Iraq on two separate occasions and his movements in Iraq not credible. The Tribunal does not accept that the applicant has credibly explained why, if the purpose of his return visit was to marry [Ms A], he remained in Iraq for almost a year and returned to Australia before travelling to Iraq on a second occasion, this time entering and exiting at Baghdad International Airport, and remaining in Iraq for nine months before returning to Australia. The Tribunal does not accept that during the two periods of his residence in Iraq the applicant was residing solely in Erbil, relying on friends and savings for financial support in the hope that his girlfriend would marry him. The Tribunal does not accept that the applicant only returned to Iraq for the compelling reason of marrying [Ms A].
In reaching this conclusion, the Tribunal has considered the applicant’s evidence that when he was interviewed by Departmental officers at [the] Airport [in] August 2014 he had photographs with [Ms A] from Erbil on his laptop which he claims were sighted by the customs officers. To the Tribunal he gave evidence that, because of the time that passed between his return to Australia [in] August 2014 and the issuing of the NOICC, he does not have the photographs of [Ms A]. These claims were not made in the response to the NOICC. Even if the applicant had photographs of a woman on his laptop when he was questioned in August 2014 this does not establish the nature of his relationship with this woman or that the relationship had exposed him to a risk of harm from his tribe or his family. Nor would such photographs answer the Tribunal’s concerns about the credibility of the applicant’s evidence about his movements during his prolonged periods of residence in Iraq.
The Tribunal is satisfied that the applicant never believed he was at risk of being killed by [Tribe 1]. The Tribunal finds his voluntary travel to Iraq on two separate occasions for a prolonged period of one year and nine months, his arrival and departure from the international airport in Baghdad indicates that at the time he made his application for protection he did not have a subjective fear that he would be harmed or killed by his tribe or his family because he would be perceived to be Christian convert.
The Tribunal is satisfied that the applicant provided incorrect information in his application when he stated that if he returned to Iraq he feared being harmed and mistreated by [Tribe 1] and that the tribe, which was very large and part of [larger tribe], would ensure that he was killed if he returned to Iraq. The Tribunal is satisfied that the applicant was not of any adverse interest to [Tribe 1], his family or anyone else at the time he made the application for a protection visa. The Tribunal is satisfied that the applicant was able to travel to Iraq on two occasions for a period of one year and nine months without encountering any difficulties because he was not ever of interest to [Tribe 1] or his family and that his claims that he would be harmed/mistreated by [Tribe 1] are incorrect.
The Tribunal finds that the applicant gave incorrect information in his protection visa application when he stated that:
·He fears that if he returned to Iraq the tribe that was very large and part of the [larger tribe] would ensure that he was killed;
·He believed that he would be harmed/mistreated by [Tribe 1] if he returned to Iraq;
·He had brought shame on [Tribe 1] because they would believe that he had converted to Christianity.
For the reasons given above, the Tribunal finds that the applicant gave incorrect information to the Department in his protection visa application and in doing so, he failed to comply with s.101 in the way described in the s.107 notice.
The Tribunal finds it unnecessary to consider whether the applicant gave incorrect information when he stated the government would not protect him as they were against any conversion to Christianity as it was an Islam Government.
Conclusion on non-compliance
100. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
101. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
102. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
· the correct information
· the content of the genuine document (if any)
· whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
· the circumstances in which the non-compliance occurred
· the present circumstances of the visa holder
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
· any other instances of non-compliance by the visa holder known to the Minister
· the time that has elapsed since the non-compliance
· any breaches of the law since the non-compliance and the seriousness of those breaches
· any contribution made by the visa holder to the community.
103. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
104. The Tribunal considers the correct information is that:
·The applicant did not leave Iraq because he feared being killed or harmed by [Tribe 1].
·The applicant did not convert to Christianity or intend to do so and he was not perceived or at risk of being perceived by his tribe as a person who had converted or who intended to convert to Christianity.
·The applicant did not fear that [Tribe 1], which is part of the [larger tribe], would ensure that he would be killed if he returned to Iraq.
105. This consideration weighs heavily towards the cancellation of his protection visa.
The content of the genuine document
106. This prescribed circumstance is not relevant in this case because the s.107 notice relied on s.101, not on s.103 (relating to bogus documents).
The circumstances in which the non-compliance occurred
107. The applicant came to Australia as an unauthorised maritime arrival and was granted a protection visa on the basis that he feared serious harm if he returned to Iraq.
108. The applicant’s evidence is that, to the extent that the information in his application indicates that he had converted to Christianity, this was incorrect and the incorrect information was provided as the result of misinterpretation. The applicant’s evidence is that he informed the delegate and the IMR that he did not claim to have converted to Christianity; he claimed he would be perceived as a convert to Christianity. For the purpose of this decision, the Tribunal is prepared to accept that the words ‘I have converted’ appear in the application as a result of misinterpretation, rather than as a deliberate decision to provide incorrect information.
109. The applicant does not otherwise concede that the information alleged to be incorrect in the NOICC was in fact incorrect. He maintains that when he stated he has brought shame on the tribe who are Islam and that they will believe he has converted to Christianity and that if he returns to Iraq the tribe will ensure he is killed and that he believes the tribe will harm or mistreat him this information was correct at the time it was given. He denies the allegation in the NOICC that he gave incorrect information to the Department in his application for a protection visa and the accompanying statement and has not provided any mitigating circumstances to explain why he would have provided incorrect information.
110. The applicant also argued in the alleged non-compliance occurred in circumstances where he had already told the Australian authorities that he would return to Iraq to see his girlfriend. The Tribunal accepts that the applicant’s entry interview indicates that he would like to return to Iraq to marry his girlfriend. However, this does not disturb the Tribunal’s finding that the applicant gave incorrect information in his protection visa application.
111. For the reasons given above, the Tribunal has concluded that the applicant has deliberately provided incorrect information in his application for a protection visa. This consideration weighs heavily towards the cancellation of the applicant’s visa.
Whether the decision to grant a visa to the visa holder was based, wholly or partly, on incorrect information
112. The decision of the IMR, a copy of which was obtained by the Tribunal, found that the applicant was owed protection obligations. The Tribunal considers the applicant’s claim to have brought shame on his tribe because of his perceived conversion to Christianity and his claim to fear harm from the tribe was central to his claims to fear harm in Iraq for reasons related to religion.
113. The Tribunal rejects any suggestion the IMR found the applicant was a refugee based wholly on the applicant’s oral evidence to the IMR. The Tribunal rejects the submission that the IMR’s decision was not based, at least in part, on the information provided in his protection visa application. The applicant’s statement was reproduced in the IMR’s decision and, as noted in the applicant’s submissions, the IMR found the applicant to be a credible witness.
114. The Tribunal considers that the IMR’s decision was based, at least in part, on the incorrect information the applicant provided in his protection visa application. The Tribunal is satisfied that if the applicant had provided the correct information, as set out above, the decision to grant the visa would not have been made.
The present circumstances of the visa holder
115. The applicant currently lives in [a named suburb] with two friends. He is single. He has no immediate family in Australia.
116. The applicant holds a permanent resident return visa which was granted on 9 February 2018. He has been living in Australia since 2010 (other than the periods in which he returned to Iraq). Previously he has been employed in Australia, but at the time of the hearing he relied on income support from Centrelink. He told the Tribunal he intended to seek work as [an Occupation 1].
117. The applicant has not provided any psychological or medical reports about his current state of health to the Tribunal. At the second hearing he told the Tribunal he had high blood pressure. Even if this is the case, there is no medical evidence before the Tribunal that indicate that the applicant suffers from any medical condition that might weigh against the cancellation of this visa.
118. The Tribunal gives this factor no weight in favour of not cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
119. The applicant has not conceded that he provided incorrect answers in his application for a protection visa.
120. For the reasons set out above, the Tribunal considers the applicant fabricated his evidence regarding his motivations and movements during his visits to Iraq and finds that he was not truthful in his evidence to the Tribunal.
121. The Tribunal gives this factor no weight in favour of not cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
122. There are no other known instances of non-compliance by the applicant. The Tribunal has given this factor some weight as a reason not to cancel the visa.
The time that has elapsed since the non-compliance
123. The relevant non-compliance in the present case took place when the applicant applied for a protection visa. Over nine years have elapsed since the non-compliance took place. The Tribunal gives this consideration weight in favour of not cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
124. There is no evidence before the Tribunal that the applicant has breached the law since the relevant non-compliance. The Tribunal gives this consideration some weight in favour of the applicant.
Any contribution made by the visa holder to the community
125. It appears the applicant has worked for periods during the time in which he has resided in Australia since being granted a protection visa. He told the Tribunal he has acquired a driver’s licence. He told the Tribunal he is not working as he has a problem with the language but he is planning to work as an [Occupation 1]. He told the Tribunal his ability to make other contributions to the community have been impeded by language barriers.
126. No evidence has been provided which suggests that he has made any other contribution to the community during the period of time in which he has been resident in Australia.
127. The Tribunal gives this consideration no weight in favour of not cancelling the visa.
Whether there are mandatory legal consequences to a cancellation decision
128. Since the applicant’s protection visa was cancelled his application for a Subclass 155 (resident return visa) was processed and on 9 February 2018 he was granted a Subclass 155 visa. Because the applicant is currently the holder of a Subclass 155 visa, he will not be an unlawful non-citizen or the holder of a bridging or other temporary visa as a consequence of this Tribunal’s decision. Accordingly, the applicant would not be prevented from applying for a visa by s.46A of the Act.
129. Under s.48(1)(b)(ii) of the Act, applicants who have had their visas cancelled since their last entry into Australia may only make a valid visa application for the classes of visas which have been prescribed by r.2.12 of the Regulations. These include partner, protection and bridging visas, among others. Non-citizens who held a protection visa that was cancelled are prohibited from making a further protection visa application while in the migration zone by s.48A(1B) of the Act. However, as the applicant left the migration zone in 2018, that is, after his visa was cancelled in 2017, and then returned to Australia in 2018, it would appear he is not precluded from making a further application for a protection visa.
130. The Tribunal acknowledges that pursuant to s.107A of the Act his resident return visa may be cancelled. However, as the applicant currently holds a permanent visa that is not the subject of this cancellation decision, the Tribunal finds that indefinite detention is not a possible consequence of the cancellation decision.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international obligations
131. The Tribunal finds that the applicant is a citizen of Iraq and the holder of a valid Iraqi passport, which he obtained when he returned to Iraq between 2012 and 2013, and 2013 and 2014. The Tribunal notes his evidence is that he has now lost this passport but has not identified any reason that he could not obtain a replacement. He has travelled to Iraq for extended periods on two separate occasions following the grant of his protection visa.
132. As the applicant currently holds a permanent resident return visa, he will not be liable to removal as a consequence of this cancellation decision. Because the applicant will not be removed from Australia as a consequence of this cancellation decision, the Tribunal does not consider that the cancellation of his protection visa would lead to his removal in breach of Australia’s non-refoulement obligations. Furthermore, as noted above, as the applicant has departed and re-entered the migration zone since the visa was cancelled s.48A(1B) does not appear to prevent the making of a further protection visa application.
133. In any event, the Tribunal does not consider that Australia has non-refoulement obligations with respect to the applicant. As discussed at the hearing, an international treaty obligation assessment was undertaken by the Department in relation to the applicant and the delegate found the applicant was not a person to whom Australia owed protection obligations. The applicant claimed he was not aware that an ITOA had been completed. This is surprising given the delegate’s decision, a copy of which was filed with the Tribunal, refers to the International Treaties Clearance Letter dated 15 August 2017 and sets out the following extract from this letter:
Refugees Convention:
Based on the available evidence, I am not satisfied there is a real chance that, if [variant of the applicant’s name] returned to Iraq, he would be persecuted for reason of his race, religion, nationality, membership of a particular social group or political opinion. I therefore find he is not a refugee and Australia does not have a non refoulement obligation in respect of him under the Refugees Convention.
CAT and ICCPR:
Based on the available evidence, I do not have substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Iraq, there is a real risk (as in real chance) that he will suffer significant harm. I therefore find he is not a person in respect of whom Australia has a non-refoulement obligation under the CAT or ICCPR.
Overall Finding on Non-Refoulement Obligations
I find that Australia does not have non-refoulement obligations to [the applicant].
134. On 30 January 2019 the Tribunal gave the applicant a copy of the ITOA assessment.
135. The Tribunal has considered the country information referred to in the submissions as well as the applicant’s evidence at the hearings on 30 January 2019 and 17 July 2019. However, the evidence before the Tribunal does not indicate that the applicant faces a real chance of serious harm or significant harm if he returns to Iraq. In reaching this conclusion, the Tribunal has had regard to the most recent DFAT report as well as the UNHCR Guidelines on protection claims from Iraq.[16]
[16] DFAT Country Information Report Iraq, 9 October 2018; UN High Commissioner for Refugees (UNHCR), International Protection Considerations with Regard to People Fleeing the Republic of Iraq, May 2019, HCR/PC/IRQ/2019/05_Rev.1.
136. At the hearing the applicant gave evidence that if he were return to Iraq he would still be at risk for the same reasons he gave in his protection visa application. As discussed at the hearing, the applicant’s evidence that he maintains that he would be at risk for the reasons set out in his protection visa application makes little sense in light of his own evidence to the Tribunal which was that [Ms A] left Iraq in 2014, he did not know her whereabouts, and he had not converted to Christianity and had no current intention to do so.
137. Furthermore, the Tribunal has found that in his protection visa application the applicant provided incorrect information when he stated he believed he would be killed or harmed by the tribe because he had converted or they believed he would convert to Christianity. The Tribunal does not accept that the applicant was ever of adverse interest to his tribe. The Tribunal does not accept that the applicant ever had a subjective fear of harm in Iraq. The Tribunal does not accept that the applicant would still be at risk in Iraq from his tribe or family because he mentioned that he had converted to Christianity and there was no going back.
138. Before the Tribunal the applicant expressed concerns that, in contrast to his life in Australia, he would not be free to express his religious views in Iraq and he would have problems because he did not believe in Islam. The Tribunal accepts that the applicant does not believe in any particular religion. The Tribunal notes that he told the IMR that he was formally a Muslim but in practice he was not a Muslim. He no longer records his faith as Muslim on forms as people who know him in Australia (he identified these people as people who came with him by boat) know he does not believe in religion. Generally in Australia he doesn’t talk much about religion and he doesn’t need to because he didn’t have to practise.
139. The Tribunal notes the applicant voluntarily returned to Iraq on two occasions for a cumulative period of nearly 20 months without incident. The Tribunal does not accept that the applicant is genuinely concerned that he would be unable to express his religious beliefs or views (including his non-belief in Islam or his belief in deism) or that he would be required to behave in any way that is inconsistent with his religious beliefs.
140. Before the Tribunal the applicant expressed concerns about the security situation in Iraq. The Tribunal accepts that there is generalised violence in Iraq. This applies to the whole of the population of Iraq and not specifically to the applicant. Although the applicant does not claim to have been kidnapped or harmed in Iraq in the past, he expressed concerns that if he returns to Baghdad he may be the target of kidnapping. Having considered his evidence and the country information, including the information about western returnees and kidnapping in Baghdad submitted by his representative[17], the Tribunal is not satisfied that there is a real chance or a real risk that the applicant would suffer serious harm or significant harm as a result of kidnapping or the security situation in Iraq generally for any other reason if he returns to Iraq now or in the reasonably foreseeable future.
[17] Tribunal file, f.132 (citing RA (Returns to Baghdad) Iraq CG [2017] UKUT 0018 (IAC) “Where a returnee from the West is likely to be perceived as a potential target for kidnapping in Baghdad may depend on how long he or she has been away from Iraq. Each case will be fact sensitive, but in principle, the longer a person has spent abroad the greater the risk. However, the evidence does not show a real risk to a returnee to Baghdad on this ground alone.”
141. The Tribunal considers that the applicant’s willingness to return to Iraq on two occasions for prolonged periods of time demonstrated that he does not have any subjective fear about returning to Iraq, and that there is no real chance that he will suffer serious harm if he were returned to Iraq. Having considered the country information submitted on his behalf and submissions made on his behalf, the Tribunal is not satisfied that there is any basis for concluding this situation has now changed.
142. In any event, for the reasons given above, as the applicant now holds a resident return visa he is therefore not going to be removed from Australia as a consequence of this decision. While it is possible that the Department may take steps in relation to the cancellation of his resident return visa this is by no means certain. If such steps were taken then the question of whether the cancellation would lead to his removal in breach of Australia’s non-refoulement obligations would be considered at that point in time.
Any other relevant matters
143. The Tribunal has considered the hardship that would be caused by cancellation. The Tribunal accepts that the applicant prefers to continue to reside in Australia on a permanent basis. The applicant is now a permanent resident of Australia and that he holds a resident return visa. He has access to income support here which he would not have access to in Iraq, and that he has been living in and has integrated to some extent into the local community here over the last nine years. The Tribunal accepts that he has resided in Australia, with the exception of time spent abroad, since 2010 and that he has not engaged in criminal activity.
144. While it is possible that the Department may take steps in relation to the cancellation of his resident return visa this is by no means certain. Given that the applicant holds a resident return visa, the Tribunal does not accept that: (a) indefinite detention is a possible consequence of this cancellation decision; or (b) removal from Australia is a possible consequence of this cancellation decision. In any event, given the applicant has voluntarily returned to Iraq on two previous occasions and his circumstances have not changed since this time the Tribunal does not accept that: (a) there is a real chance or a real risk that the applicant would suffer serious harm or significant harm for any of the reasons claimed if he returns to Iraq now or in the reasonably foreseeable future; or (b) that the applicant is at risk of harm or hardship that would weigh against the cancellation of the visa.
Conclusion
145. The Tribunal is mindful of the fact that a decision to cancel a protection visa requires careful consideration of the factors in favour of and against the cancellation of the visa. The applicant has been in Australia since 2010 and, apart from the non-compliance discussed in this decision he appears to have complied with Australian law during that time. However, for the reasons given above, the Tribunal found the information he provided in his protection visa application is incorrect. For the reasons given above, the Tribunal finds that his oral evidence at the hearing regarding his reasons for returning to Iraq in 2012 and then again in 2013, how he obtained his Iraqi passport, his movements while in Iraq and his explanation for his travel between [Country 1] and Iraq to be not credible. The Tribunal finds he returned to Iraq twice for significant periods after being granted a protection visa despite claiming in the visa application that he feared he would be killed by his tribe and maintaining to the Tribunal that on both occasions he returned to Iraq he remained at risk for the reasons set out in his protection visa application. The Tribunal finds that the information provided in his protection visa application was incorrect and that the correct information is that at the time of the application he did not fear being killed or harmed by his tribe.
146. The Tribunal finds that the information was also incorrect in that he did not intend to convert (and had not converted) to Christianity and that he was not perceived by his tribe as a convert to Christianity. In his response to the NOICC and in oral evidence to the Tribunal the applicant stated, correctly, that he had told the delegate and the IMR that he had not converted to Christianity. However, the applicant failed to concede that he had provided incorrect answers in his protection visa application and maintained that he would be at risk in Iraq because the tribe would believe he had converted to Christianity. For the reasons given above, the Tribunal found the applicant was not truthful in his evidence to the Tribunal. Furthermore, given that the applicant now holds a resident return visa, the Tribunal does not accept that: (a) indefinite detention is a possible consequence of this cancellation decision or (b) removal from Australia is a possible consequence of this cancellation decision. In any event, the applicant has voluntarily returned to Iraq on two previous occasions for prolonged periods of time without incident and his circumstances have not changed since this time.
147. Having carefully considered all of the above, the Tribunal concludes on balance the factors in support of cancelling the visa in this case outweigh the factors that weigh against cancelling it. In its assessment, the Tribunal places significant weight on the applicant’s return to Iraq on two occasions without incident for prolonged periods of time within three years of the grant of his protection visa, and its finding that the decision to grant the visa was based, at least in part, on the incorrect information provided in the applicant’s protection claims. While the Tribunal considered the applicant’s circumstances in Australia, including the passage now of almost 10 years since his arrival, it also notes that the applicant has no family ties in Australia and there is no evidence of any contribution to the community that would weigh in favour of not cancelling the visa. The Tribunal finds that the seriousness of the applicant’s actions in deliberately providing incorrect information in the application, without which he would not have been granted the visa, outweighs these limited factors in favour of not cancelling the visa.
148. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Ultimately after carefully weighing all of the above, the Tribunal considers the factors in favour of cancelling outweigh those against it and the Tribunal concludes the visa should be cancelled.
DECISION
149. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
F. Simmons
MemberATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
105Particulars of incorrect answers to be given
(1)If a non‑citizen becomes aware that:
(a) an answer given or provided in his or her application form; or
(b) an answer given in his or her passenger card; or
(c) information given by him or her under section 104 about the form or card; or
(d) a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2)Subsection (1) applies despite the grant of any visa.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Statutory Construction
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