1728177 (Refugee)

[2018] AATA 5358

1728177 (Refugee) [2018] AATA 5358 (10 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1728177

COUNTRY OF REFERENCE:                  Iraq

MEMBER:David McCulloch

DATE:10 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 10 December 2018 at 3:11pm

CATCHWORDS

REFUGEE – Protection visa – Iraq ­­­­­– Saddam Hussein regime – Faili Kurd – Sunnis – Sunni extremist groups – ethnicity and religion – imprisoned – voluntary travel to Iraq – divorce – decision under review set aside and substituted

LEGISLATION

Migration Act 1958 s, ss.101 – 105,107(2), 109(1)

CASES

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant provided incorrect answers in his application for the protection visa contrary to s.101(b) of the Act and further determined to exercise the discretion to cancel the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 5 December 2018 at 9.30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

4. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of Immigration of any incorrect information of which they become aware and of any relevant changes in circumstances.

7. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

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

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance in the following respects:

   Evidence of non-compliance:

   On [Date] the visa holder arrived in Australia as an irregular Maritime Arrival.

   [In]  February 2012 he lodged a Protection Obligations Determination (POD) request. [In] February 2012 he signed a Statutory Declaration explaining his reasons for leaving Iraq and seeking asylum in Australia.

   [In] July 2012 the visa holder lodged an application for a Protection visa. As part of this application he provided a Form 866 —Application for a Protection (Class )CA) visa. The visa holder provided the following information in the Form 866 (in italics):

   At question 1 of part C of the Form 866 the visa holder provided the following information:

   Family name: [Name]
   Given names:  [Name]
   Date of birth: [Date]

   At question 42 of part B of the Form 866

   I am seeking protection in Australia so that I do not have to go back to (give name of country or countries) the visa holder stated "Iraq"

   In response to the following questions 43 to 48 of part C — 'Your reasons for claiming protection' of the Form 866, the visa holder stated "Please refer to all information provided in support of my request for Protection Obligation Determination including but not limited to my Statutory Declaration and my POD interview".

   The visa holder re-submitted his signed Statutory Declaration lodged on the [February 2012], explaining his reasons for leaving Iraq and seeking asylum in Australia. This effectively addresses questions 42-48 of the Form 866.

   The visa holder's statutory declaration stated the following:

   1.       I am a [age deleted] Faili Kurd. I am a devout Shi'a Muslim. I am an Iraqi citizen. I make this Statutory Declaration in support of the assessment of my claims to be a refugee under the Refugees Convention. Below I set out my fears of being persecuted, because of my ethnicity and religion, if I am forced to return to Iraq.

   7.       I was born in [City 1], Iraq. As Faili Kurds and Shia Muslims, my family and I suffered a lot under Saddam Hussein's regime.

   14.      At the [date], I was arrested by security forces while I was leaving a Shia Mosque, where I had gone for prayers. I was imprisoned in [a prison]. I was never charged with any offence and I was not tried in a court or tribunal. The only reasons for my arrest were that I was Kurdish Faili and Shia. While in prison, I was tortured and beaten on many occasions. One of the ways I was tortured was with electric shocks applied to different part of my body. I was also badly beaten many times. One soldier, in particular, would beat me badly on my back. He would say that he was going to beat me until I would be unable to have any children.

   15.      I was held in prison for about [a period of five years]. I suffered from depression and anxiety, because of having being tortured and beaten while in prison. I saw a psychiatrist [name] after I was released from prison.[Information deleted].

   22.      In around [2005], while living in [Town 1], I received a threat letter. The letter was thrown in our yard. The letter threatened that if I did not leave [Town 1], I should consider myself dead. A bullet was contained inside the letter. The letter was not signed. I believe that Sunnis living in the area sent this threat to me because I am Shia. If people had found out that I was Fail Kurd, I would have been seriously harmed immediately, without even a threat letter as warning.

   23.      Because of this threat, we had to leave the house in [Town 1] and move back to[Town 2], which was a Shia area.

   24.      Even while living in predominantly Shia area, my wife and I felt unsafe and feared for our lives. Sunni extremist groups explode bombs in Shia areas in order to kill Shias.

   25.      Two of my [relatives], [names deleted] were killed, one in 2005 and one in 2010. They were very close to me. They spent a lot of their time at my house while they were growing up. I thought of them as my own sons, especially as I did not have children of my own.30.       The killings of my two [relatives] upset me greatly and made me even more fearful for my life and safety in Iraq.

   31.      I have also experience widespread discrimination in Iraq as a Kurdish Faili. Kurdish Failis have no rights in Iraq. We are powerless. Kurdish Failis are not represented in the government.

   32.      Because of my lifetime of experiences of persecution as a Faili Kurd and Shia Muslim, I continue to feel fearful, at present, of being harmed in Iraq because of my ethnicity and religion.

   33.      I cannot practice my Kurdish culture or wear my Kurdish dress. I cannot speak Kurdish Faili in public. The situation for Kurdish Failis is worse than before, as the existing Iraqi government discriminates against minorities, because it is divided along tribal, religious and political lines. As a Kurdish person, I do not belong to any tribe. I would have to pay money to tribes to try to obtain any tribal protection and even then, the protection would be unreliable, because it would be based on money and not genuine tribal connections. I also do not belong to any political party.

   34.      Kurdish Failis are now a minority in Iraq, because of the deportations and executions of many Kurdish Failis during Saddam Hussein's regime. Kurdish Failis have historically being persecuted in Iraq and hatred towards Kurdish Failis by other Iraqi nationals continues in Iraq.

   35.      The Iraqi government is not able to protect me or my wife. The government has no power in Iraq. Tribes rule in Iraq.

   36.      I believe that I will be killed by Iraqi nationals generally, Sunni Muslims and Sunni extremist groups if I were forced to return to Iraq, because of my Kurdish Faffi ethnicity and my Shia religion.

   37.      I cannot relocate anywhere in Iraq, because the whole of Iraq is unsafe. My life would also be in danger in Kurdistan region of Iraq, as Kurds in those areas are Sunni Muslims. As a Shia Muslim, I would be harmed by those Sunni Kurdish people.

   38.      I could also be harmed in Iraq by Sunni insurgents for having sought the protection of Australia. I could be considered a supporter of Western countries, especially as Australia is one of the countries that contributed to the Coalition forces in Iraq.

   39.      I felt that I had lost hope in Iraq. I do not see myself as having a future there.

   40.      I feel worried and anxious about what would happen to me if I were returned to Iraq. I would see that as a death sentence. I also feel depressed and sad about my experiences in Iraq. I do not like to remember or talk about those experiences.

   [In] August 2012, based on this information and meeting all other relevant criteria, the class XA subclass 866 Protection visa was granted.

   [In] [early 2015] the visa holder departed  [an Airport] on his Australian Titre De Voyage, number [deleted]. Upon departure he was questioned by Department of Immigration and Border Protection Airport Inspectors as to his travel plans. The visa holder advised he would be travelling to Iraq for two months as was stated on his departure card.

   The visa holder returned to Australia [in mid] 2015 on his Titre De Voyage and stated on his incoming passenger card he had spent most of his time in Iraq.

   The above indicates the visa holder has voluntarily travelled to Iraq for period of more than five months since the grant of his Protection visa without experiencing any apparent issue. This indicates he also engaged with the Iraqi authorities multiple times without apparent issue. This is inconsistent with his claims as stated in his Protection visa application, that authorities discriminate against him and are unable to protect him from harm.

   On his outgoing passenger card the visa holder claimed he would spend two months in Iraq. The visa holder spent more than five months in the country where he claimed if he returned he believed he would be killed. The visa holder did not suffer any apparent harm during his five months stay. This indicates he does not have the adverse profile as claimed and he was not specifically targeted by Iraqi nationals generally, Sunni Muslims and Sunni extremist groups for any of the reasons claimed at the time of his Protection visa application.

   I consider the following information provided in the Form 866 —Application for a protection (Class XA) visa is incorrect:

   ·At question 42, where it asks "I am seeking protection in Australia so that I do not have to go back to (give name of country or countries)' the visa holder stated he is a [age deleted] Faili Kurd who is a devout Shi'a Muslim and Iraqi citizen. He had a fear of being persecuted, because of his ethnicity and religion. The visa holder also stated he was born in [City 1] Iraq. As Faili Kurds and Shia Muslims, he and his family suffered a lot under Saddam Hussein's regime. This is incorrect as after the visa holder was granted a Protection visa he was issued an Australian Titre de Voyage which he used to travel back to "Iraq" the country he was seeking Protection from and subsequently returning to Australia without any apparent issue of persecution of his ethnicity or religion arising.

   ·At question 43 where it asks "Why did you leave that country"? The visa holder claimed while living in [Town 1], he received a threatening letter from Sunnis living in the area, stating if he did not leave [Town 1], he should consider himself dead. Inside the letter was a bullet, the letter was not signed; the visa holder believed this happened because he is a Shia Muslim. He believes if people had found out he was Faili Kurd, he would have been seriously harmed immediately. Because of this threat the visa holder left the house in [Town 1] and moved back to a Shia area. The visa holder claimed even living in a predominantly Shia area, both he and his wife felt unsafe and feared for their lives. Sunni extremist groups were exploding bombs in Shia areas in order to kill Shias. The visa holder also stated two of his [relatives] he was very close to were killed, this made him more fearful for his life and safety in Iraq. This information is incorrect, because after being granted a Protection visa the visa holder applied and was issued an Australian Titre de Voyage which he used to voluntarily travel to Iraq, the country he was seeking protection from and subsequently returned to Australia without apparent issue. There is no evidence of harm or issue during the voluntary travel to Iraq from Sunni extremists, Sunni Muslims, Sunni insurgents or Iraqi nationals generally as claimed would occur at the time of his Protection visa application. The visa holder engaged with the Iraqi authorities upon his arrival into the country, he travelled on his Australian issued Titre De Voyage which states his nationality as Iraqi without experiencing any apparent discrimination as claimed in his Protection visa application. He stated in his Protection visa application he could be considered a supporter of Western countries if he returned to Iraq, especially as Australia is one of the countries that contributed to the Coalition forces in Iraq. The visa holder's voluntary travel to Iraq without apparent issue indicates he is not identified as a supporter of Western countries as claimed when he lodged his Protection visa application.

   ·At question 44 where is asks "Have you experienced harm in that country"? The visa holder stated he was not tried in a court or tribunal or charged with any offences but was [imprisoned]. He stated the reason for his arrest was because he was a Kurdish Faili and Shia. While in prison, he was tortured and beaten on many occasions. The visa holder also claimed he was imprisoned for about [a period of] five years. Having been tortured and beaten in prison he suffered from depression and anxiety. He sought help from a psychiatrist [deleted]. The psychiatrist is well-known,[in the area]. This information is incorrect as it was the visa holder's choice to travel to Iraq for an extended period of time indicating he felt safe enough from the Iraq authorities to undertake optional travel there, which indicates he does not fear the current Iraqi Government as claimed. Upon the visa holder's return to Australia from Iraq he did not indicate he faced any detention or experienced any harm from the authorities whilst in Iraq. This indicates he did not hold his claimed profile of fear or harm from the current Iraqi Government.

   ·At question 45 where it asks "What do you fear may happen to you if you go back to that country"? The visa holder stated he has experienced widespread discrimination in Iraq as a Kurdish Faili, as he has no rights in Iraq. The visa holder stated Kurdish Faili's are not represented in the government. He stated because of his lifetime of experiences of persecution as a Faili Kurd and Shia Muslim in Iraq, he continues to feel fearful of being harmed because of his ethnicity and religion. The visa holder states he cannot practice his Kurdish culture, speak Kurdish in public or wear Kurdish dress. He claims the existing Iraqi government discriminates against minorities due to division along tribal, religious and political lines. As a Kurdish person, he does not belong to any tribe, he stated he would have to pay money to tribes to try to obtain any tribal protection even so the protection would be unreliable, because it would be based on money and not genuine tribal connections. He stated he does not belong to any political party. He claims Kurdish Failis are now a minority in Iraq, due to deportations and executions of many Kurdish Failis during Saddam Hussein's regime. Kurdish Failis have historically been persecuted in Iraq and hatred towards them by other Iraqi nationals continues in Iraq. Because of his Kurdish Faili ethnicity and Shia religion he believes he will be killed by Iraqi nationals, Sunni Muslims and Sunni extremist groups if he were to return to Iraq. Based on the above information this is incorrect because, the visa holder's voluntary travel to Iraq for an extended period of time indicates he did not face significant discrimination from the Iraq authorities or experience any issued from Sunni Muslims, Sunni extremists or Sunni insurgents and did not hold the claimed adverse profile as stated in the Protection visa application. Since there is no indication he experienced any harm or issues from the Iraqi authorities or Iraqi militia groups during his voluntary travel to Iraq, I consider he did not hold the profile of risk of harm as he claimed in his Protection visa application. On the visa holder's return to Australia from Iraq he did not indicate he faced any detention or experienced any harm whilst in Iraq. This indicates he did not hold his claimed profile of fear of harm from them.

   ·At question 46 where it asks "Who do you think may harm/mistreat you if you go back"? The visa holder claimed he could be harmed in Iraq by Sunni insurgents for having sought the protection of Australia. He could be considered a supporter of Western countries, especially as Australia is one of the countries who contributed to the Coalition forces in Iraq. Based on the above information this appears to be incorrect because, after being granted a Protection visa the visa holder applied for and was issued an Australian Titre de Voyage. He used this travel document to voluntarily travel to Iraq which is the country he claimed he had a fear of returning to because of persecution he claimed to have suffered from Sunni insurgents, Sunni Muslims and Sunni extremist groups. He voluntarily engaged with Iraqi authorities when entering and departing Iraq using this travel document. There is no indication he experienced any harm or issue from the Iraqi authorities, having presented his Australian documentation which also states his nationality as Iraqi. There is no evidence he experienced harm or other issues, during his voluntary travel to Iraq from Sunni extremists, Sunni Muslims, Sunni insurgents or Iraqi nationals generally as he claimed would occur at the time of his Protection visa application. I consider he did not hold the profile of risk of harm as claimed in his Protection visa application.

   ·At question 47 where it asks "Why do you think this will happen to you if you go back"? The visa holder stated because of his lifetime of experiences of persecution as a Faili Kurd and Shia Muslim, he continues to feel fearful of being harmed in Iraq because of his ethnicity and religion. He stated he cannot locate anywhere in Iraq, as the whole of Iraq is unsafe. His life would be in danger in the Kurdistan [deleted]region of Iraq, as Kurds in those areas are Sunni Muslims. As a Shia Muslim, he would be harmed by those Sunni Kurdish people. The visa holder claimed to feel worried and anxious about what would happen if he were returned to Iraq. He stated he would see this as a death sentence. He also stated he felt depressed and sad about his experiences in Iraq and did not like to remember or talk about them. Based on the above information, I consider this answer to be incorrect because, the visa holder voluntarily travelled to Iraq through official border crossings with his Australian Titre De Voyage travel document which states his nationality as Iraqi, and would identify him as a supporter of a Western country which he claimed is of adverse interest to the Iraq authorities. I consider the Iraq authorities would have known when he arrived in Iraq, and even though he was an Iraqi citizen travelling on an Australian travel document there is no indication he was of any interest to the Iraqi authorities or that he experienced any discrimination. I also consider if he was of adverse interest to the authorities or insurgent groups as claimed in his Protection visa application the Iraqi authorities would not have allowed him to depart Iraq. There is no evidence that the visa holder was of adverse interest to Sunni insurgents, Sunni Muslims, Sunni extremists or Iraqi nationals generally during the voluntary travel to Iraq. Since there is no indication he is of any adverse interest to the Iraqi authorities, insurgent or extremist groups, I consider he was not of interest to the Iraqi authorities, insurgent or extremist groups as claimed in his Protection visa application.

   ·At question 48 where it asks "Do you think the authorities of that country can and will protect you if you go back"? The visa holder claimed the Iraqi government is not able to protect him or his wife as the government has no power in Iraq. He stated Tribes rule in Iraq and he claims to have experienced widespread discrimination in Iraq as a Kurdish Faili. He has also claimed Kurdish Failis have no rights in Iraq, are powerless and are not represented in the government. Based on the above information I consider this to be incorrect because, the visa holder voluntarily engaged with the Iraqi authorities when he travelled into and out of Iraq through official border crossings with his Australian Titre De Voyage travel document which he claimed is of adverse interest to the Iraqi authorities. I consider the Iraqi authorities would have known when he arrived in Iraq, and had ample time to locate and harm him if they intended to. I also consider if he was of adverse interest to the authorities or insurgent groups as claimed in his PV application the Iraqi authorities would not have allowed him to depart Iraq. Since there is no indication he experienced any adverse response or action from the Iraqi authorities on his return, I consider he did not hold the profile as he claimed in his Protection visa application.

   The above information indicates the visa holder did not hold the adverse profile he claimed in his Protection visa application.

   The Protection visa was granted on the basis the visa holder satisfied the Minister he engaged Australia's protection obligations under the Refugee Convention. He maintained, he has a fear of being persecuted, because of his ethnicity and religion, if he was to return to Iraq.

   This claim was fundamental to the determination the visa holder was a person to whom Australia has protection obligations.

   As the incorrect information provided was material to this determination it appears the visa holder may not have engaged Australia's protection obligations.

   Consequently I consider the visa holder has not complied with section 101(b) of the Act as he has provided incorrect answers to questions and in information provided in support of his application for a visa. If the visa holder has failed to fill in his application form in such a way no incorrect answers are given or provided his visa may be cancelled.

1. Shortly before the Tribunal hearing a submission was provided by the applicant’s migration agent which sets out the following explanation by the applicant in relation to his return to Iraq:

   ·The applicant stresses that he has only travelled back to Iraq once since the grant of his PV application. He says that his wife has previously travelled willingly and tried to convince him to accompany her however he responded that since migrating from Iraq he promised he will never enter Iraq due to the harm and physical memories that he personally experienced. Additionally he says that Iraq no longer had a place in his hear and he no longer felt to belong to that country.

   ·The applicant says that he has entirely not travelled outside Australia. In particular he never travelled despite his wife insisting on him to travel with her to Iraq when she did so earlier.

   ·The applicant also was never told or warned by officers at the Department of Home Affairs that he was not permissible to re-enter Iraq. Rather he says officers at the airport who asked him about his trip said he was fine to travel.

   ·The applicant is eager to draw a clear picture for assessors about the main reason that pushed him so hard to take this trip to Iraq despite him not wanting to step back. As it is now clear enough through notes previously made to the Department the applicant at that time experienced family breakdown however it was not the usual divorce or a simple separation nor were the reasons easily accepted.

   ·The applicant and his previous spouse come from a very traditional and cultural tribe who consider cheating and affairs in relationships serious and can lead to blood shed between the two tribes (families). After the husband became certain that his wife had built an affair with his friend he was in a position to divorce his wife despite him being broken and angry. Unfortunately the reasons of the divorce were then passed on to the families in Iraq and the wife's family had found out. This was when things got worse because problems and anger escalated between the two families and the wife's blood was declared free.

   ·This meant that a tribal war could soon happen and the applicant hearing this news had no choice rather to travel to Iraq to settle the problems. Therefore the sole reason that pushed him to travel to Iraq and put his life in great risk was to prevent bloodshed within the family. They even wanted to kill the other man whom the wife had an affair with. They spared his blood as well. This was a way to take revenge and purify their honor.

   ·The whole story including having to deal with the families and their revenge for each other as well being broken by his wife whom he loved made him mad but he controlled himself. His mental health was deeply affected and he became isolated, always sick and unable to deal with simple everyday tasks. He became forgetful and began to experience a bad physical health as well.

   ·The applicant says that he could not refuse his family's orders or else he would have been responsible for all the bloodshed that would have been done between the two tribes should he not have travelled to Iraq and should he had not intervened to calm his family down. He was even forced by his family as also a way to take revenge is to remarry. However, once he returned to Australia and after his visa was cancelled he also divorced his wife as he could not sponsor her. His life is broken in parts and with no physical or emotional support he is left with no mercy rather he would love to be protected as he is not able to live anywhere in the world.

   ·The applicant says that he may not have a lot of ties in Australia however, having spent this many years here he feels safe and that alone has given him a sense of belonging and has made him feel a human. He will be protected and can live a life with at least the basic human rights that anyone would wish to have. His past experiences in Iraq including imprisonment, torture and migration as well as the recent events in his relationship in addition to his visa cancellation have taken a lot of his health and he has lost so much of his life. He would finally want to settle and to have a family, children and a peaceful living.

   ·The applicant says that he and his wife were married for almost 15 years when they separated upon the applicant discovering his wife's affair with another man. This man was the applicant's friend and whom he had good relationship with. This affected him more because he felt betrayed not only by his beloved wife but also a good descent friend. The applicant says that they never had a chance to have any children. But they had a happy marriage life until he realised his wife's cheating and betrayal.

   ·The applicant says that despite him voluntarily returning to Iraq he took great care not to travel directly to Baghdad airport as he says that [deleted] Prison is located nearby and he fears from it.

   ·The applicant says that he stayed close to family and did not relocate much. He entered Iraq through [deleted] airport and travelled through to Iraq by car.

   ·The applicant says that he initially intended to stay in Iraq for a maximum of twenty days but his family insisted for him to stay longer as they had missed him and had not seen him for such a long time. But also problems were not settling as quick. During his stay he avoided the streets and remained indoors and spent time at home.

   ·The applicant says that he is in danger and it is risky entering Iraq. However, there are always sacrifices made by one even if that costs one's own life. He says that it cost him his visa but also all the time he felt unsafe in Iraq.

   ·The applicant says that since the family found out that the wife had married the other man anger escalated once again and problems have risen between the families. So the applicant says that not only tribal problems await him in Iraq rather it is the political, social and cultural reasons that leave no peace or right to live in Iraq. The applicant acted in the most decent and honest ways to save innocent lives. He never provided incorrect answers and he insists that he remains a refugee who fears to return back as he has not place to live and no rights to claim.

   ·The applicant says that despite him breaching his visa condition he is truly lucky to be alive and to have saved many lives. He says that his visa should not be cancelled and that he believed he is still is severe danger in Iraq. He says that every case is different and his case must be treated special and different due to the main reason that pushed him to breach those conditions.

2. Also provided by the migration agent are reports from a psychologist and a psychiatrist in Australia indicating mental health difficulties suffered by the applicant including suffering from chronic post-traumatic stress disorder. The medical reports provide a history of the applicant consistent with his original claims for protection and relating his separation from his wife and why he needed to return to Iraq in 2015.

3. Also provided are two statutory declarations both [dated] November 2018 from individuals who indicate they are neighbours of the applicant. They attest to the applicant being a person of good character.

4. On the day of the Tribunal hearing, an undated statement signed by the [relatives] of the applicant was provided, indicating the importance of the applicant’s return to Iraq to deal with family issues between the applicant’s family and that of the applicant’s wife as a result of her being unfaithful to the applicant. The presence of the applicant was necessary to avoid blood shedding.

5. The applicant also provided on the day of the hearing medical reports concerning treatment by the applicant in Australia for [on going medical injuries] and other physical conditions.

   Assessment

6. While civil law concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in administrative decision-making, in cases where the existence of certain facts forms the basis for the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision maker must be satisfied about the existence of the facts before exercising the power. In this respect, the obligation is on the decision maker to be so satisfied and not on the former visa holder to establish the facts or grounds do not exist: refer Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ) at [25] and [32].

7. In deciding whether the ground for cancellation is made out, it is appropriate for the Tribunal to have regard to the nature of the allegations and the gravity of the consequences: Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Flick and Perry JJ) at [120]. The cancellation of a protection visa is a very serious matter, entailing as it does the denial of a permanent ability of the applicant to reside in Australia and having been granted on the basis of a risk to the applicant of serious or significant harm to the applicant on return to his home country. As such, any factual findings should be based on logical and probative material and not speculative information or inexact proofs. This is the approach the Tribunal has taken in the review of the evidence and in making a finding.

8. In the Tribunal hearing the applicant reiterated his urgent need to return to Iraq in 2015 to settle a potential serious dispute between his own family and that of his wife’s family due to his wife being unfaithful. He indicated that he had not wanted to return to Iraq, had indeed not done so when his wife had urged him to return with her in 2013. He indicated that he only stayed for as long as five months at the urging of his [relatives].

9. The applicant indicated that he stayed with several of his [relatives] in Iraq. He indicated that he stayed indoors. He did not practice his religion publicly, but prayed at home.

10. In the hearing, the applicant provided an account of his detention for more than five years from [date deleted] and psychiatric treatment for many years after release that was consistent with claims made as part of the protection visa application.

11. The applicant in the application form for the protection visa in response to specific questions (42 to 48) simply makes reference to his supporting statement. The delegate in the s.107 notice refers to these specific questions and then extrapolates parts of the applicant’s detailed statement in each case as responses to respective questions. In each case, the delegate states that the extrapolated information must be incorrect because of the applicant’s return to Iraq.

12. These conclusions of incorrectness, particularly in relation to claimed past events that have faced the applicant or others, are based not on detailed or specific contrary evidence but on the broader issue of the applicant having returned to Iraq. This also applies to the applicant’s claims as to what he fears if he would return to Iraq. It is essentially claimed that the applicant indicated in the application that he could not return to Iraq; however, he has returned to Iraq and therefore the claims underpinning the assertion that he could not return to Iraq are incorrect.

13. Examples of difficulties the Tribunal has with instances of claimed incorrectness of claims made by the applicant follow. The delegate indicates that it is claimed that applicant and his family suffered a lot under the regime of Saddam Hussein. It is claimed that this is incorrect on the basis that the applicant returned to Iraq. As Saddam Hussain is no longer in power such a claim by the delegate is not supportable. The delegate indicates that past claims of harm suffered by the applicant and his family due to being Shia Muslim are incorrect because the applicant returned to Iraq. The fact of the applicant returning to Iraq is not overly probative of the untruthfulness of claimed past events. It is claimed that the applicant’s claims of being in prison and subsequently seeking psychiatric help are not correct because the applicant returned to Iraq. Again, the fact of the applicant returning to Iraq is not overly probative of the untruthfulness of prior detention and subsequent psychiatric help. The claimed detention occurred over 30 years ago in quite a different political environment to that which exists today. The fact of the applicant returning to Iraq recently is not overly probative that the detention did not occur many years ago in a different political environment.

14. It is also claimed that responses in the written statement which go to the question of whether the applicant would be harmed or mistreated if he returned to Iraq and claims that he would be harmed if he were to return to Iraq are incorrect because the applicant did return for a period of five months. The Tribunal does accept that return could be seen as inconsistent with aspects of the applicant’s written statement which go to these questions. However, as discussed below the issue of the degree to which the applicant acted discreetly on return in relation to his ethnicity and religion is relevant.

15. The Tribunal has concerns as to the sweep of the delegate’s conclusions of incorrectness based on his return only, without any other evidence to indicate incorrectness. For the purpose of this decision, the Tribunal accepts that the s.107 notice is valid.

16. However, the Tribunal is not satisfied that it has been substantiated that the applicant has provided incorrect information as to what occurred to him and others in Iraq based on him and they being Faili Kurds, and the claimed fears that the applicant holds as a result of returning to Iraq. The fact of the applicant returning to Iraq as being the only indicator of claimed incorrectness is not sufficiently probative to cause the Tribunal to find that the underlying claims for protection and held fears are incorrect.

17. As the Department of Foreign Affairs and Trade, Country Report – Iraq, 9 October 2018 and its predecessors make clear clear, together with other independent information of the situation in Iraq over time, there has been a complex interplay and variability over time of persecution and the risk of harm being directed towards a variety of ethnic and religious groups. The dynamics of persecution and harm directed towards different groups has had a degree of fluidity, including being dependent upon who has been in power. Further, as the decision of the delegate in the original application for the protection visa makes clear, the applicant’s ability to avoid serious harm is based on his capacity to keep his Faili Kurd ethnicity hidden from the rest of the Iraqi population. The delegate finds in that decision that, if the applicant did not take such steps to hide his ethnicity, he would face a real chance of being persecuted.

18. On that basis, the fact of the applicant returning to Iraq for some months does not of itself undermine the credibility of the applicant’s underlying claims because it would be expected that on such temporary return the applicant would be discreet in relation to his ethnicity. As indicated, in the hearing the applicant indicated that he stayed indoors at the homes of his siblings and did not publicly practice his religion.

19. The requirement to be discreet in relation to a refugee criterion or Convention[1] attribute would still result in the applicant meeting the protection criteria. However, that ability to be discreet to avoid harm makes it plausible and not of itself irrational that the applicant could return to the country where he claims to have feared harm and act in a discreet manner to avoid harm for a temporary visit.

    [1] 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

20. The issue of discretion reinforces the Tribunal’s view that the temporary return of the applicant to Iraq for a period of five months is not sufficient to demonstrate to the Tribunal’s satisfaction that his underlying factual claims and response to questions in the application for the protection visa are incorrect.

21. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

    DECISION

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

    David McCulloch
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)    purports to have been, but was not, issued in respect of the person; or

    (b)    is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)    was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)    giving particulars of the possible non‑compliance; and

    (b)    stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)    stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)    setting out the effect of sections 108, 109, 111 and 112; and

    (e)    informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)     requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)    otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)    visas of a stated class; or

    (b)    visa holders in stated circumstances; or

    (c)    visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)    visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)    considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)    having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.