1729353 (Refugee)

[2019] AATA 5954

1729353 (Refugee) [2019] AATA 5954 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729353

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Paul Millar

DATE:21 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 21 June 2019 at 7:01pm

CATCHWORDS

REFUGEE – protection visa – Iraq – Stateless – falsely claimed – applicant’s uncle received threats – international forces – threatening telephone calls – grenade attack – inconsistent evidence – untruthfulness as witness – applicant return to Iraq – lack of judgement – failure to declare sister – non-compliance not significant – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101-105, 107(2), 109(1), 424A
Migration Regulations 1994 (Cth), Schedule 2 r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

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).  The delegate cancelled the visa on the basis that the applicant provided incorrect information.  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 1 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s uncle. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.  The applicant was represented in relation to the review by his registered migration agent who attended the hearing.  The representative made submissions about the applicant’s case.[1] For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   [1] In this respect, the representative made submissions dated 28 January 2019, 17 February 2019 and oral submissions at the hearing.  The representative also made submissions dated 28 March 2019 in response to the issues raised by the Tribunal pursuant to s.424A of the Act.    

   RELEVANT LAW

2. 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. In the present case, 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.

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

3. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 with respect to what the delegate found to be incorrect information provided by the applicant in his protection visa application. To determine if this amounted to non-compliance it is necessary to examine the evidence before the Tribunal related to the applicant’s protection claims, in particular, the basis of those claims.

   Account of events on which protection claims are based as related to the Tribunal  

4. To the Tribunal, the applicant said that when he got married, he and his wife lived in the same house as his father-in-law who was also his [uncle].  The applicant’s brother Z and his wife, who was the sister of the applicant’s wife, also lived in this house from the time of their marriage. They married on the same day that the applicant married his wife.  While they were all living in that house, the applicant’s uncle worked for international forces from 2006 until he left Iraq in November 2008 to come to Australia.  For undertaking this work, the applicant’s uncle received threats either in the form of letters or over the telephone. The people making these threats, whose identities were unknown to the applicant’s uncle, said that they would come and get him because of the work he was doing.

5. After the applicant’s uncle left Iraq in November 2008, the applicant, his wife, his brother Z and Z’s wife all continued to live in the home of the applicant’s uncle.  The applicant said to the Tribunal that after his uncle left Iraq, pressure fell on them because of his uncle’s work for international forces.  In this respect threatening letters were left at the uncle’s home and this made them very scared. He thought that this began approximately two or three months after his uncle left Iraq and therefore in early 2009.  These letters contained threats that the applicant and family would be destroyed as they were agents for international forces.

6. On occasions they also found bullets left at the front of the door to their home. In addition, the applicant, his wife, his brother Z and his brother’s wife all received threats over the telephone and to each of their mobile telephones. The threats made over the telephone were similar to those made in the letters left at the house only that they also said that they would kidnap, kill and torture them and their young children.  Even when they changed their telephone numbers the people making these threats found out and continued to call them.  In addition, when the applicant and family members were on the street in the local area, people who had connections with militias who would say that they were traitors, working for Australian forces and words to the effect ‘we will get you and not leave you alone’.

7. Because of the threats they were receiving, in approximately April 2009, the applicant, his wife, his brother Z, his brother’s wife and all their children stopped living in the home of the applicant’s uncle.  They went to another part of the city and rented premises there.  They did not receive any threatening letters while they lived at this place.  However, they stopped living there after three months, because they heard from people in the area that people had been asking about them.  The applicant understood that to mean that the people who had been making threats to them had found out where they were living and so they had to go somewhere else.

8. They all moved to different premises some way out of the city and did not encounter any trouble or harm while living there.  In early 2010 they left those premises because the landlord wanted to repossess them.  It was not easy to find rental property in that area and so they returned to live at their uncle’s home.  However, they again received threatening letters and were very frightened.  Then, in June 2010, the applicant’s brother Z left the house and never returned.  A few days later, they went to live in the home of the applicant’s father.  They did this because, within those few days, another letter was left at the house threatening that they would be destroyed and not allowed to live.  They decided that they were not safe and that Z must have been kidnapped. 

9. The applicant stayed in his father’s home until he left Iraq in August 2010 to come to Australia.  His wife and children continued to live in his father’s home after he left Iraq.  He left Iraq without them as it was too expensive for all of them to leave.  He thought that if he could remain in Australia he could then apply to have his family join him here.  Although, in the period that he lived in his father’s house prior to leaving Iraq, he did not receive any threatening letters, after his departure, his wife began receiving threatening letters and threatening telephone calls.  The applicant understood that the people responsible had found out that he had been living there. In addition, his wife would hear people talk that “the people living in this house were being sought by militia members who had been released from jail”. 

10. In May 2011 a grenade was thrown at the home of the applicant’s father and both his father and his wife were injured for which they received treatment at hospital.  Following his discharge from hospital, the applicant’s father went to stay in a desert area on the edges of the city.  In that location, he did not receive threats or have difficulties with anyone.  The applicant said that he had other brothers living in Iraq but they had never received threats because nobody knew them. They were ‘far’ from his uncle.

11. The grenade attack affected the applicant’s wife mentally and, after her discharge from hospital, she and Z’s wife went to stay with another sister who lived in a different part of Iraq in a desert area.  She remained living there for approximately four years.   The Tribunal asked the applicant whether in the period of four years she was living with her sister in another part of Iraq, his wife received threats at all. In response, the applicant said that in approximately October 2013 his wife received a threatening telephone call. The caller said that they would get her and not leave her.  This caused the applicant’s wife to be depressed and anxious and she lived in fear.  It was from this time that she continued to receive threatening telephone calls.  She did not encounter any other type of threat or harm apart from that.

12. In December 2013 the applicant left Australia and returned to Iraq. He remained in Iraq for over two months and stayed with a friend in the city of X also in the south of Iraq.  This friend picked him up at the airport as the applicant said that it was not safe for him to move around. He considered that his life was at risk.   The friend had a [property] far out of the city and the applicant believed that location to be safe.  The applicant’s wife and Z’s wife came to the applicant where he was staying and remained with him until he went back to Australia in February 2014.  In this period, the applicant stayed inside in the house every day.

13. In August or September 2015 the applicant’s wife, Z’s wife and the sister they had both been living with for four years all left Iraq and they now live in [Country 1].[2]  When asked why they did not come to Australia, the applicant said that he had no right or means of applying to have them come here.  He said that they left Iraq and went to [another country] at a time when the way was open to Europe through the United Nations.  His wife did not leave Iraq before that time as she was hoping to come and join the applicant in Australia.  At the end of 2016, the applicant travelled to Europe and again saw his wife.

    Credibility discussion

    The applicant’s initial claim that he was stateless

    [2] The applicant submitted an identity card issued to his wife by what appears to be an organisation in [Country 1] (see folio 70 of the Tribunal file).

14. In the decision to cancel the applicant’s protection visa, the delegate stated that when applying for protection, the applicant maintained that he was stateless.  The delegate noted that the Independent Merits Review found the applicant to be stateless based on the applicant’s claims to that effect.  The delegate records that this was inconsistent with subsequent claims made about the applicant’s citizenship status when his wife applied for a partner visa. According to that application, the applicant is a citizen of Iraq. 

15. The Tribunal put this to the applicant at the hearing and he said that he is a citizen of Iraq.  He conceded that he falsely claimed that he was stateless when he applied for protection. He said that he did this because he was told by another person in the detention centre where he was held that if he claimed he was stateless he would not be sent back to Iraq.  Further, the applicant said that he did not bring this to the attention of the Department in fear that, if he did, he could be sent back to Iraq.  The applicant advanced broadly similar claims on these issues in his statutory declaration made on 25 April 2017.  In his declaration, he adds that he was also told by someone in the detention centre that if he said that he was stateless he would be released quickly.

16. The Tribunal can allow for the possibility that an applicant might advance false claims to assist him to achieve his objective of being able to be granted protection in the country to which he fled and to avoid harm he might genuinely fear in his country.  Put another way, the Tribunal can allow for the possibility that applicants for protection might advance an account of their reasons for leaving their country which is true, but, attempt to strengthen that account by making related claims that are false.[3]  Certainly, in his written statement of 28 January 2011, the applicant uses his claim to be stateless to emphasise and strengthen his claim for protection.  He does this in claiming that because he is stateless, he has no ‘real rights’ in Iraq and cannot access protection for the harm he claims to fear arising from his uncle’s service for international forces.

    [3] In this respect, the Tribunal acknowledges the representative’s submission that false evidence by an asylum seeker does not automatically imply rejection of refugee status and that people have different motives for giving false evidence.

17. However, as discussed below, the Tribunal holds concerns as to the credibility of the account of events on which the applicant actually claims protection, including a concern about his willingness to return to Iraq in late 2013, suggesting that he does not genuinely fear harm there.  Accordingly, the Tribunal sees the applicant’s  initial claim that he was stateless, a claim that he maintained throughout the determination of his application for a protection visa,  as reflecting untruthfulness on his part and as part of an overall  pattern of a willingness to advance false information to achieve his objective of being able to remain in Australia.  That includes his evidence as to the reasons he left Iraq, beyond his initial claim that he was stateless and did not have citizenship of that country.

    Concern about the applicant’s willingness to go back to Iraq in December 2013

18. A consistent theme of the applicant’s evidence to the Tribunal was that he lived in fear in Iraq due to the threats that came to him once his uncle left the country in November 2008.  Indeed, in his initial evidence, when asked if he ever received threats in person, he said that if the perpetrators of these threats had seen him on the street they would have killed him.  The Tribunal asked the applicant why, therefore, he chose to return to Iraq in December 2013.  In response, the applicant said that after receiving a threatening telephone call in October 2013 his wife was depressed and had [an illness]. He felt that it was necessary for him to go and be with her to try to make her calm.[4]  The Tribunal put to the applicant that his wife had received threatening telephone calls before that time and asked him why, therefore, she would need him to risk his safety to return to Iraq because of that one call in October 2013.

    [4] In his statutory declaration of 25 April 2017, the applicant advances the same explanation for his return to Iraq.

19. In response, the applicant just repeated the threat that was made to his wife in that particular telephone call and said that this made her very depressed.  The Tribunal asked the applicant to again confirm that she continued to receive threatening telephone calls after that particular call in October 2013. In response, the applicant said that was correct. The Tribunal asked the applicant why, in that case, he did not actually remain with his wife if the threatening telephone calls, on his account, made her anxious and unwell.  In response, the applicant said that he remained with his wife until he was sure his wife was better. He said that he could not stay forever with his friend.

20. The Tribunal asked the applicant why he did not go back to Iraq on another occasion if his wife was still receiving telephone calls which were making her anxious. In response, the applicant said that he could not do that because it was not safe.  The Tribunal asked the applicant why his wife could not have travelled out of Iraq to another country, for example, Dubai, where they could both stay temporarily to meet each other and for the applicant to console her.  The Tribunal asked the applicant why he and his wife would not have considered that step as opposed to the applicant having to risk his safety by going back to Iraq.

21. In response, the applicant said that they could not consider going to meet in some other country because of their limited finances. He then said that his wife would not be able to get out of Iraq and she did not have a passport.  The Tribunal asked the applicant whether his wife could not have applied for a passport.  In response, the applicant just said that there was no way for her to get out of the country before then saying they did not actually think about or consider the prospect of meeting each other in another country.  He then said that he had agreed with his friend, with whom he hid, that he would go and stay there.

22. The Tribunal put to the applicant that his wife had suffered injuries in May 2011 from a grenade attack at his father’s house, the Tribunal considering that to be a far more serious incident than one telephone call.  The Tribunal asked the applicant how his wife managed to cope following the grenade attack in May 2011 given that he was not in Iraq at that time. In response, the applicant said that his wife coped at that time simply because she just had to. When asked why she had to cope with it back and then, he said that it was because she knew he had left Iraq for her sake and she just had to ‘take it’.

23. The Tribunal asked the applicant why then this same attitude or approach would not have applied when his wife received this telephone call in October 2013.  The Tribunal asked the applicant why his wife could not have just simply coped as she had done in the past without him having to take the risk of going back to Iraq to assist her.  In response, the applicant said that his wife got very depressed after that telephone call in October 2013. He could not leave her by herself.  He said that although she did have her sisters with her, his presence was more important.

24. The Tribunal put to the applicant that it had difficulty accepting that he would return to Iraq in late 2013 having fled from the country in August 2010, according to his evidence, to save his life.  The Tribunal put to the applicant that it had difficulty believing that, in his claimed circumstances, he would have chosen to return there and remained there for over two months.  The Tribunal put to the applicant that it had difficulty accepting that he did this for the reasons he had advanced, essentially, to console his wife.  The Tribunal put to the applicant that his return to Iraq at that time could suggest that in fact he was not at risk of harm there on the basis he had advanced and for which he had been given a protection visa. In response, the applicant said that he returned to Iraq not to go to different places but because of his wife’s condition and her [illness].  His friend picked him up from the airport on his arrival and took him to a safe area. Even at the airport he made sure that he was disguised by wearing head covering and glasses so that he would not be recognised.

1. The Tribunal put to the applicant that it had difficulty accepting that he would return to Iraq to help his wife when he had fled Iraq to save his life, when the purpose of his flight would have been well known to his wife and when she had been able to cope following the grenade attack in May 2011.  Given that latter factor, the Tribunal put to the applicant that it had difficulty believing that a telephone call in October 2013 would have such a detrimental impact on her mental and physical health that she needed him to come to Iraq to assist her.  In response, the applicant said that he had already given the Tribunal his reasons for returning to Iraq. He risked his life so that her depression would get better.  The Tribunal asked the applicant what he planned to do if his wife’s depression returned after he left Iraq. In response, the applicant said that he was always calling his wife and telling her that she would come to Australia. 

2. The Tribunal finds the applicant’s evidence on this issue to be unconvincing.  The Tribunal does not believe that the applicant returned to Iraq in December 2013 for the reason he gives, namely, to console his wife.  The applicant was granted a protection visa in September 2013 and while the Tribunal questioned him about his wife’s well-being following the grenade attack in May 2011, the Tribunal can understand why he would not return to Iraq prior to knowing that he had the right to remain permanently in Australia.  While the Tribunal questioned the applicant as to why he and his wife would not meet in another country, the Tribunal can accept that this would involve logistical difficulties for them in terms of the expense of travel, obtaining a passport for his wife and the risk of her being harmed going to and from her hiding place to leave and re-enter the country.

3. The Tribunal also considered that the applicant’s wife may have become distressed when receiving the telephone call in October 2013 if she had not received any threats before then while staying with that sister.  However, the Tribunal could not see any plausible reason for the applicant to return to Iraq and remain there for two months to console his wife, having fled the country in late 2010 to save his life.  The Tribunal was incredulous that having just been granted protection the applicant would return to Iraq to see his wife.  All would have known that no matter how distressed she was, having been granted a protection visa, the applicant could commence the process of sponsoring his family to come to Australia, as he had originally intended.  In the meantime, the applicant’s wife was living with two sisters to whom she could turn for support and she and the applicant could speak to each other over the telephone.  Notwithstanding the applicant’s ‘covert’ return, using disguises and staying with a friend in another city in Iraq, the Tribunal does not believe that someone in the applicant’s claimed circumstances would risk returning to Iraq for the reasons he has given and this reflects untruthfulness as a witness.

4. The Tribunal has taken into consideration submissions made by the representative on this issue.  First, the representative submitted that the fact that the applicant chose to return to Iraq in late 2013 did not, thereby, demonstrate that the account of events on which his protection claims are based is false.  The Tribunal acknowledges that submission, but, finds that the applicant’s willingness to return to Iraq for the reasons he gives, in his claimed circumstances, to cast significant doubt over his credibility as a witness.  The representative referred to materials related to consideration of cessation of refugee status based on an asylum seeker’s return to the country of origin as a form of re-availing the protection of that country.  According to these materials, the reason for the return would be relevant to that consideration.

5. The Tribunal does not consider the applicant’s return to Iraq in that context.  The Tribunal, rather, is concerned that the applicant would risk returning to that country in his claimed circumstances.  The representative made reference to decisions of a British immigration appeal tribunal released in 2017 relating to people returning to Baghdad and stating that according to these decisions people can return for different reasons.  That may well be so, but, the Tribunal finds unconvincing the explanations put forward for the applicant taking the risk of returning to Iraq in his claimed circumstances.

6. The representative submitted that in returning to Iraq the applicant possibly demonstrated a lack of judgement, he was not mentally strong and he was under pressure due to his wife’s [an illness] and mental state.  The representative also referred to the circumstances under which the applicant claims he returned, namely, wearing disguise and staying at the home of a friend in secret in another city.  The Tribunal has considered all of those factors and still remains concerned about the applicant’s return to Iraq in circumstances where he claims his life is in danger.

   Concern about the adverse interest held in the applicant and his wife

7. According to the applicant’s evidence to the Tribunal, the threats made by telephone and letter to him and his wife, the disappearance of his brother Z and the grenade attack in May 2011, were all sourced in the work performed for international forces by the applicant’s uncle between 2006 and November 2008 (when his uncle left Iraq and came to Australia).  The Tribunal had difficulty accepting that the people making these threats, people the applicant appeared to claim were from militias, would sustain and pursue an interest in the applicant and his wife long after his uncle left Iraq. 

8. The Tribunal was willing to allow for some threats to continue after the applicant’s uncle left Iraq and possibly briefly beyond the applicant’s own departure in August 2010.  The Tribunal struggled to accept that this would escalate beyond that time, in May 2011 with a grenade attack and then persistent and enduring adverse interest in the form of threatening telephone calls to the applicant’s wife from October 2013 for a period of another two years.  When these concerns were put to him by the Tribunal, the applicant said that he had nothing more to add beyond his claim that these events occurred.   

9. The Tribunal is not persuaded by that response and finds highly improbable the applicant’s evidence that these threats would go on for a period of almost seven years from the time his uncle left Iraq in November 2008 until the applicant’s wife left Iraq in August or September 2015, the applicant maintaining that she continued to receive telephone threats up until that time.   The applicant’s evidence on this issue was a further reflection of untruthfulness.

10. The representative submitted that those affected by the uncle’s work for the international forces would have been imprisoned and, perhaps, at some point got released from prison and undertook the grenade attack in May 2011 as well as the threats the applicant’s wife received from October 2013 onwards.  It was submitted that they would have done this because they wanted to take revenge for what happened to them.  The Tribunal finds these claims to be highly speculative and not persuasive.  The Tribunal remains concerned that threatening behaviour would be continued for so many years after the applicant’s uncle left Iraq.

11. The representative also provided country information reporting that Iraqis who had worked as interpreters for international forces had been rejected by their own community in Australia, but, at the same time, could not return to Iraq because their lives were at risk due to their past work.  The representative provided a report about the government of the United States of America allowing those who worked as interpreters to enter that country, the representative submitting that this indicated the danger for those people that still exists in Iraq.  The representative provided country information about the continuation of anti-Western sentiment in Iraq, particularly in the Shia majority areas. 

12. The representative referred to the decision of the Independent Merits Review of 3 August 2012 which made reference to country information asserting that civilians who had worked for international forces, including their families, were at risk of harm.  The representative submits that country information is silent about the treatment of such people since that decision was issued.  The Tribunal accepts that all of this information could support the claim that the applicant’s uncle could be at risk of suffering serious harm if he was to return to Iraq given his past work for international forces. 

13. The Tribunal does not accept that this information demonstrates adverse interest by militia groups the applicant claims to fear, would be maintained over the period from late 2008 when the applicant’s uncle left Iraq through to late 2015 when the applicant’s wife left Iraq.  The Tribunal remains sceptical of that claim and that scepticism is reinforced by the other concerns the Tribunal holds about applicant’s credibility discussed in this decision.

    Evidence about place of residence in Iraq

14. When interviewed by an officer of the Department on 13 November 2010, the applicant declared his ‘most recent address’ in Iraq in the following terms.  He stated that from 1991 until 2008, he lived at ‘suburb 1’ in his native city and, from 2008 until 2010, he lived at ‘suburb 2’, in his native city.[5]  In the applicant’s protection visa application form, which the Tribunal understands he signed on 28 January 2011, he declared his ‘residential details’ in the following terms.  He stated that from 1991 until 2008, he lived at suburb 2 and, from 2008 until 2010, he lived at an address containing the names of suburb 1 and suburb 2.[6] 

    [5] See Department file [source deleted] between folios 50-51.

    [6] See Department file [source deleted] between folios 14-15.

15. In the applicant’s protection visa application form, which the Tribunal understands the applicant signed on 2 September 2013, he declared his “residential details” in Iraq in the following terms.   He stated that from 1991 until 2008, he lived at suburb 2 and, from 2008 until 2010, he lived at suburb 2.[7]  In his statutory declaration made on 28 January 2011, the applicant states that he lived in the same house as his uncle (who was also his father-in-law) prior to and after his uncle left Iraq in 2008.  In his declaration, the applicant refers to receiving written threats, the kidnapping of his brother in June 2010 and then ‘immediately’ leaving that house and going to live with his father where his family remained living as at the date of the declaration.[8]

    [7] See Department file [source deleted] at folio 21.

    [8] See Department file [source deleted] at folio 62.

16. In the applicant’s wife’s application for a partner visa, signed by her on 17 October 2013, the applicant’s wife declared her residential address as being suburb 1.   In that part of the form, where required to declare the addresses of places where she had lived in the previous ten years, the applicant’s wife declared one address, being suburb 1 and declaring that the period that she lived at that address was from September 1987 until “now”.[9]  In the applicant’s sponsorship form for his wife’s application for a partner visa, received by the Department on 22 October 2013, the applicant declared his “last permanent address” in Iraq as being suburb 2 and declared that he lived at that address from November 1979 until November 2010.[10]

    [9] See Department file [source deleted] at folios 29, 39 and 60.

    [10] See Department file [source deleted] at folio 114.

17. When he was interviewed by the delegate, in relating his account of receiving threats by letter after his uncle left Iraq in 2008, the applicant’s evidence as to when he lived in his uncle’s house and when he stopped living there, was broadly the same as that given in his statutory declaration. That is that he lived in his uncle’s house before and after his uncle left Iraq and until his brother was kidnapped or disappeared, following which he went to live in the home of his father.

18. In his evidence at his interview with the Independent Merits Review, conducted on 22 November 2011, the applicant again referred to remaining in his uncle’s home after his uncle left Iraq, receiving written threats left at that house in July, August and September 2009, going to live in another area ‘in the desert’ from that time and then returning to live at the home of his uncle at the end of 2009.   He told the Independent Merits Review about receiving more threats while living in his uncle’s home and then going to live at the home of his father after his brother was kidnapped.  However, he also said that less than one month after going to live there, his father was worried about him and asked him to leave. In that respect, the applicant said that he went with his wife and child to live in ‘another area in the desert’.[11]

    [11] See Independent Merits Review, Claimant’s case number [source deleted], 3 August 2012, at [31], [33].

19. All of this evidence appeared to be inconsistent with the evidence the applicant gave the Tribunal as to where he lived after his uncle left Iraq in November 2008.  In this respect, the applicant said that from the time of his marriage he lived in his uncle’s home with his uncle.  He said that he continued to live in his uncle’s home after his uncle left Iraq in November 2008.  He told the Tribunal that from that time he, his wife, his brother and his brother’s wife all received threats related to his uncle’s work and because of that, in approximately April 2009, six months after his uncle left Iraq, they all went to live in rented premises in another part of the city.  They ceased living in those premises after approximately three months because people in the area told them that there were others who were enquiring about them.  For that reason, they then lived in rented premises in another area, from approximately July 2009.  They did not encounter harm or trouble from anybody in that area but they stopped living there after a period of nine or ten months because the landlord wanted to take possession of the premises.

20. Therefore, in approximately February 2010, they resumed living at the home of the applicant’s uncle.  To the Tribunal, the applicant said that in June 2010, his brother disappeared or was kidnapped.  At that time they stopped living in the uncle’s home and went to live in the home of the applicant’s father.  The applicant said that he remained living there until leaving Iraq in August 2010.  He said that his wife remained living there until May 2011 when, after a grenade attack on his father’s house, she and the wife of the applicant’s brother fled to the home of another of her sisters, in another city. They remained living there until August or September 2015 when they left Iraq.

21. To put all of these claims into perspective, according to his earliest evidence, in the period just preceding 2008 and after that, the applicant lived at two addresses.  This is the tenor of his evidence at his interview in November 2010, in his protection visa application forms, in his statutory declaration made on 28 January 2011 and also at his interview with the delegate.  The tenor of this evidence is that the applicant lived at his uncle’s home and at his father’s home.  That appears to be inconsistent with the evidence he gave the Tribunal as set out above in relation to where he lived once his uncle left Iraq, the applicant claiming to have lived at two other locations in addition to the home of his uncle and the home of his father.

22. To the Independent Merits Review the applicant does refer to living at two other locations apart from the home of his uncle and the home of his father.  However, to that body, the applicant appears to have given a different account from the one he gave the Tribunal as to when he lived at these other places.  According to his evidence to the Independent Merits Review, it was not until September 2009 that the applicant and his family left the home of his uncle and returned there to live just a few months later.  To the Tribunal, the applicant said that he stopped living at the home of his uncle much earlier, in approximately April 2009 and did not return there until approximately ten or more months later.  Further, to the Independent Merits Review, the applicant said that he did not remain in his father’s home from June 2010 until leaving Iraq as he had told the Tribunal.  Rather, to the Independent Merits Review, the applicant said that he, his wife and child, left his father’s home at his father’s behest to go and live in a different place.

23. Finally, according to their evidence in relation to the application made by the applicant’s wife for a partner visa, they both had just one place of residence in Iraq (and not four as the applicant told the Tribunal).  Further, the applicant’s wife indicated that, as at the date of her application in October 2013, she was still living in the applicant’s native city.  That appears to be inconsistent with the applicant’s evidence to the Tribunal that his wife stopped living there in May 2011 following a grenade attack and went to live with another sister in another city, in another part of the country, where she remained for four years. 

24. Pursuant to s.424A of the Act, by letter dated 14 March 2019, the Tribunal put these discrepancies to the applicant.  In response, in submissions dated 28 March 2019, with respect to the applicant’s evidence when interviewed in November 2010 and his protection visa application form signed in January 2011, the representative pointed out misspelling or mistaken recording of the correct names for these addresses or locations. The representative confirmed that the applicant’s father’s house was the address referred to in this decision as suburb 1 and the house of the applicant’s uncle was the address referred to in this decision as suburb 2.  It was submitted that the interpreter used at the interview in November 2010 spoke a different accent and so misspelt the addresses given by the applicant and mistakenly recorded the applicant as living at his uncle’s home from 2008 when, in fact, the applicant began living at that home from the time of his marriage in 2004 or 2005. It was submitted that the applicant could not say why the names of both suburb 1 and suburb 2 were given as his address from 2008 in the protection visa application form.

25. The Tribunal makes allowance for mistakes in interpretation, particularly, with respect to writing in English addresses from another language in this case, Arabic.   The Tribunal is also willing to, for the same reason, allow for mistakes in interpretation with respect to the years in which the applicant lived in the home of his uncle in suburb 2 and the home of his father in suburb 1.  What remains a concern to the Tribunal, is that, according to this early evidence, the applicant lived in two locations in Iraq, the home of his uncle and the home of his father, whereas, to the Tribunal, the applicant lived in those locations and two other locations, in another area, to which he and his family fled because of threats they had received while living at the home of his uncle.

26. With respect to the protection visa application form the applicant signed in September 2013, it was submitted that the question was about the applicant’s last address in Iraq.  The interpreter at the time made a mistake and failed to accurately record the correct addresses at which the applicant lived.  It was submitted that the applicant did live in his father’s home from June 2010 when his brother went missing but this was not mentioned in the application form because the applicant left Iraq in August 2010, he was ‘moving from one place to another and so did not actually have an address.’ 

27. Again the Tribunal can allow for mistakes in interpretation, but, the concern remains that, according to this evidence, the applicant lived at two locations, when, to the Tribunal, he lived in four locations.  It was submitted that the applicant’s statutory declaration made in January 2011 correctly recorded him living at the home of his uncle prior to and after 2008.  However, what concerns the Tribunal is that, according to this declaration, the applicant lived at two addresses, not four as he told the Tribunal.  In his declaration, the applicant claims to have lived in the home of his uncle until June 2010 when his brother Z disappeared, following which he then went to live in his father’s home. While the applicant mentions in the declaration receiving threats while living in his uncle’s home, after his uncle left Iraq, he makes no claim to have fled from that home and lived in another area for some months as he told the Tribunal.

1. With respect to the application for a partner visa made by the applicant’s wife and her declaration that she just lived at the one address, namely, suburb 1, being the home of the applicant’s father, it was submitted that, at that part of the form, the applicant’s wife was asked to name the countries in which she had lived for 12 months or more in the past 10 years and to give her last permanent address in that country.  It was submitted that the applicant’s wife specified living in suburb 1 at the home of the applicant’s father because, at the time she made her application for a partner visa, she had moved to that house. 

2. The Tribunal rejects that submission because, to the Tribunal, the applicant said that, soon after the grenade attack in May 2011, the applicant’s wife stopped living in the home of his father and she went to live with her sister in another city in another part of Iraq.  To the Tribunal, the applicant said that she remained living at that place until she left Iraq in 2015.  The representative submitted that the applicant ‘confirm[ed]’ that his wife moved to live with her sister in another city in Iraq in 2014 after the applicant returned to Australia. Prior to that time, the applicant’s wife was living in his father’s house in suburb 1.  The Tribunal rejects that submission because the applicant did not give that evidence at the Tribunal hearing.  As stated above, he said that soon after the grenade attack in May 2011 his wife went to live with a sister in another city in another part of Iraq.  That is inconsistent with her partner visa application indicating that as at 2013 she was still living in the home of the applicant’s father.

3. With respect to the sponsorship form signed by the applicant for his wife’s application for a partner visa, and the applicant’s claim in that form that he lived at his uncle’s home in suburb 2 from the time of his birth until leaving Iraq, it was submitted that the applicant, in that part of the form was asked to give his last permanent (not temporary) address in the country in which he had lived for 12 months or more during the previous 10 years. It was submitted that by specifying the address of his uncle, the applicant was giving his permanent address.  The Tribunal does not accept that submission, given that, after his uncle left Iraq, because of threats he was receiving, the applicant stopped living at his uncle’s home.  As he told the Tribunal, he rented premises in another area for some months before returning to the home of his uncle, but, again, leaving that place once his brother disappeared.  In those circumstances, once his uncle left Iraq, it would be difficult to consider the uncle’s home as the applicant’s last permanent address in Iraq.

4. With respect to the applicant’s evidence at his interview with the delegate, but also the evidence about his places of residence discussed above, it was submitted that the applicant’s evidence was consistent having mentioned that he lived at his uncle’s home in suburb 2 as he had told the Tribunal.  The Tribunal does not dispute that the applicant, at all of these different stages, has mentioned living in his uncle’s home.  What concerns the Tribunal is the omission of any claim that, at some point after his uncle left Iraq, he stopped living in that home and rented premises in another area because of threats that he and his family had been receiving.  To the delegate, the applicant says that he lived in the home of his uncle up until the disappearance of his brother following which he went to his father’s house. What concerns the Tribunal is that the applicant did not claim, as he did to the Tribunal, that, in fact, in that period, he fled from his uncle’s home to live in another area for some months prior to his brother’s disappearance.  As discussed above, what also concerns the Tribunal is the evidence arising from the partner visa application made by the applicant’s wife which makes no mention of her going to live in another city in another part of Iraq from May 2011.

5. With respect to the applicant’s evidence at his interview with the Independent Merits Review, it was submitted that the account the applicant gave at that time in 2011 would be more accurate than the account he gave to the Tribunal, as to the periods in which the applicant fled from the home of his uncle and went to live in another area. The Tribunal agrees with that submission to the extent that it is not concerned with the applicant’s ability to give precise dates as to when he fled from his uncle’s home and when he returned there.  What concerns the Tribunal, on this issue, is that, to the Tribunal, he said that after going to live in his father’s home from June 2010, he remained living there until leaving Iraq. In contrast, to the Independent Merits Review, he said that less than one month after going to live in his father’s home, his father asked him to leave for his safety and the applicant went with his wife and child to live in another area.

6. On this issue, the representative just reiterated the account the applicant is recorded as giving the Independent Merits Review that, after June 2010, he went to live at his father’s home but stayed less than one month before going to stay in another area in the desert prior to leaving Iraq. The representative then submitted that it is reasonable to expect the applicant to be unable to remember events that occurred 11 years ago and so any discrepancy should be overlooked on that basis.  If the representative is claiming that the applicant did only stay in his father’s house less than one month and went to live somewhere else before leaving Iraq, that is not the evidence he gave the Tribunal.

7. The representative made general submissions about the lapse in time since the applicant lived in Iraq and that this should be taken into consideration. In this respect the representative referred to guidelines on the assessment of credibility issued by the Tribunal. It was submitted that the Independent Merits Review considered the applicant’s evidence about where he lived prior to that particular review and found the applicant to be credible.  The representative referred to judicial dicta about the need for caution when assessing evidence given at interviews conducted with asylum seekers soon after their arrival in Australia.  The representative also submitted that evidence given by the applicant at the interview conducted with him in November 2010 and in his protection visa application form signed in January 2011 could not be considered as incorrect information in the context of assessing the cancellation of the applicant’s visa.

8. The Tribunal has carefully considered the submissions and the materials put forward.  The Tribunal is not bound by findings made by the Independent Merits Review. The Tribunal is willing to allow for the fact that the lapse in time since relevant events occurred may explain apparent inconsistencies in evidence.  Further, the Tribunal is also willing to overlook from the applicant’s early evidence in 2010 and 2011, the omission of any claim that he lived in other areas in Iraq apart from the home of his uncle and the home of his father.  The Tribunal could also be willing to overlook the same omission in his protection visa application form he signed in September 2013.  

9. However, the Tribunal remains concerned that in his statutory declaration and at his interview with the delegate, the applicant made no claim to have fled from the home of his uncle and lived in another area due to threats he was receiving.  The Tribunal considers that the applicant could have given that evidence at those opportunities.  It still concerns the Tribunal that in the sponsorship form he signed for his wife’s application for a partner visa, the applicant gives only one former address in Iraq (his uncle’s home).

10. Notwithstanding the lapse in time since the applicant left Iraq, the Tribunal considers that the applicant can be reasonably expected to relate a consistent account of whether he stayed in his father’s home all of the time from June 2010 until leaving Iraq, as he told the Tribunal, or whether, in that period, he actually stayed elsewhere, as he is recorded as telling the Independent Merits Review.

11. Further, the Tribunal is most concerned at the inconsistent evidence arising from the applicant’s wife’s application for a partner visa.  According to the representative’s submissions, the applicant has tried to retract the account he gave the Tribunal as to when his wife stopped living at the home of his father.  Even allowing for the lapse of time since the relevant events occurred in this respect, the applicant can still reasonably be expected to give a consistent account of at least the year his wife went to live with her sister in another city.  In these respects, the applicant’s evidence about where he and his wife lived in Iraq is inconsistent and this further reflected poorly on his credibility.

    Evidence about the siblings of the applicant’s wife

12. In her application for a partner visa where asked to provide the details of all of her brothers and sisters, including “full, half, step and adopted” siblings, the applicant’s wife declared having three sisters, that their country of current residence was Australia and, in terms of their marital status, that two were married and one was not.[12]  She declared that the applicant had a sister who was married and currently living in Iraq.  In letters in support of the application, both the applicant and his wife stated that all of the siblings of the applicant’s wife live in Australia.[13]  Further, these claims are made in the context of a request that the visa be granted because the applicant’s wife was in a dangerous situation, in fear of harm from militias due to her father having worked for international forces in Iraq. 

    [12] See Department file [source deleted] at folios 44-46, 52.

    [13] See Department file [source deleted] at 86, 86.

13. The tenor of this evidence is that the applicant’s wife is alone in Iraq, whereas, to the Tribunal, both the applicant and the applicant’s uncle said that from May 2011 and for a period of four years, the applicant’s wife lived with two of her sisters, one of them being the wife of the applicant’s brother who was kidnapped in June 2010.   These two sisters appear not to have been declared by the applicant and his wife in her application for a partner visa.  Pursuant to s.424A of the Act, by letter dated 14 March 2019, the Tribunal put these discrepancies to the applicant.

14. In response, the representative submitted that the failure of the applicant’s wife to declare her sisters in Iraq was an honest human error. Further, it was an error on her part and not an error on the part of the applicant. The representative enclosed documents submitted by the applicant’s uncle with his application to reside in Australia which declare the applicant’s wife and two sisters in Iraq in addition to his other children (sons and daughters) included in his application to reside in Australia.[14]  The Tribunal acknowledges that information, but, this still does not explain why, when applying for a partner visa, both the applicant and his wife advanced claims that she was in Iraq on her own and did not declare that she had in fact two sisters with whom, according to the applicant’s evidence to the Tribunal, she lived after he left Iraq.  This inconsistency only further reflected the lack of credibility in the evidence before the Tribunal about the applicant and his circumstances in Iraq.

    [14] See folios 91 – 113 of the Tribunal file.

15. Relevant to this issue, at the hearing, the applicant’s uncle said that when dealing with Australian authorities to come here he was told that he could bring three sons and three daughters with him.  Of the three daughters he took with him, two were single and one was divorced.  He then said that he did have three daughters who remained in Iraq, namely, the applicant’s wife, Z’s wife and their sister with whom they went to live following the grenade attack. He also confirmed that they all now live in Europe.  The Tribunal acknowledges this evidence but that does not explain or excuse the applicant and his wife, in her application for a partner visa, representing that she was alone in Iraq and did not have sisters living there.

    Finding on whether there was incorrect information such that there was a ground for cancellation

16. Considered cumulatively, the concerns that the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.  The Tribunal accepts that the applicant’s uncle worked for international forces.[15]  However, the Tribunal finds that it has no credible evidence that, after the uncle left Iraq in 2008, the applicant and his family suffered harm including threats or attacks.  The Tribunal finds that it has no credible evidence about the lives of the applicant, his wife and relevant family members, from the time the applicant’s uncle left Iraq.  The Tribunal therefore disbelieves the applicant’s claim about his brother Z disappearing or being kidnapped.  The Tribunal has no credible evidence that the applicant or any member of his family suffered harm in Iraq and that anyone in Iraq seeks to harm them. 

    [15] In this respect, the applicant submitted documents to the Tribunal as evidence of his uncle's service in Iraq for international troops (see folios 41, 43, 44, 46, 49-52 of the Tribunal file).  One of these documents, folio 52, is a letter addressed to the applicant's uncle [Country 2] [details deleted].  Folio 45 of the Tribunal file is a travel document issued to the applicant's uncle for his travel to Australia. 

17. The Tribunal has no credible evidence as to why the applicant left Iraq in 2010.  The Tribunal has no credible evidence as to why the applicant returned to Iraq in December 2013. Because he is not a witness of truth, the Tribunal also finds it has no credible evidence as to the true circumstances under which the applicant remained in Iraq at that time.  The Tribunal has no credible evidence as to why the applicant returned to Australia in early 2014 and why he does not want to return to Iraq.  In making these findings, the Tribunal also finds it has no credible evidence as to why the applicant’s wife left Iraq in 2015 with her sisters.

18. In reaching these findings, the Tribunal also took into account the evidence given by the applicant’s uncle.  In this respect, the applicant’s uncle provided an undated letter in which he narrated an account of his work for international forces.[16] As stated above, the Tribunal accepts that the applicant’s uncle did this work.  In this letter, the uncle went on to state that he used to live and work in [Country 2] and the Tribunal accepts that evidence as credible.  The applicant’s uncle then stated that he submitted both [Country 2] and Iraqi documents to Australian authorities when applying to come and live in Australia.  He believes that may have caused some confusion that affected family members during the processing of their applications for Australian residence.  The Tribunal acknowledges this submission but it has no bearing on the concerns the Tribunal holds about the applicant’s credibility as discussed above.  It has no material relation to the applicant’s willingness to falsely claim that he was stateless when he applied for a protection visa.

    [16] See folio 42 of the Tribunal file.

19. The applicant’s uncle also gave evidence at the Tribunal hearing. In this evidence, the applicant’s uncle said that the applicant was under threat in Iraq.  The applicant’s uncle said that the applicant’s father, for possibly four or five years, had been living in his current location because of threats that had been received.  The applicant’s uncle referred to the grenade attack on the home of the applicant’s father in May 2011. He said that, to his knowledge, in that attack, the applicant’s father was injured and the applicant’s wife was depressed and had [an illness]. He said that the applicant’s wife moved away and went to live with another one of his daughters in another part of Iraq as the applicant himself claimed.

20. In this evidence, the applicant’s uncle appeared to claim that the house where the grenade attack occurred was that house in which the applicant’s father was living as at the time of the hearing.  That appeared to be inconsistent with the applicant’s claim that his father left that house after the grenade attack and went to live in another area.  However, the applicant’s uncle also told the Tribunal that he suffered from [a disease]. In addition, he said that because he was sick, his family did not tell him everything.

21. On that basis, the Tribunal was willing to understand or interpret the applicant’s uncle’s evidence in a way that was favourable to the applicant.  In that respect, the Tribunal understood the applicant’s uncle to be claiming that after he left Iraq the applicant encountered threats and that a grenade attack occurred in May 2011 during which the applicant’s wife and father were injured and, following which the applicant’s wife went to live elsewhere for her safety.  Even giving the evidence of the applicant’s uncle that interpretation, it does not outweigh or excuse the concerns the Tribunal holds about the applicant’s overall credibility.  This is especially the case when the applicant’s uncle was in Australia at the time all of these claimed events occurred and he did not witness them himself.  Accordingly, the Tribunal does not give evidentiary weight to these claims made by the applicant’s uncle and remains of the view that the account of events on which the applicant’s protection claims are based, as set out above, is false.  

22. In reaching these findings, the Tribunal also took into consideration documents submitted by the applicant purportedly corroborating the grenade attack on his father’s home in May 2011.  Those documents comprised medical and police records relating to this incident and the injuries suffered and treatment received by the applicant’s wife and father.[17]  The contents of these documents do not persuade the Tribunal to accept the credibility of the applicant’s account of events on which his protection claims are based.  The contents of these documents do not outweigh the concerns the Tribunal holds about his willingness to return to Iraq, his highly improbable account of sustained interest held in him and his family by the groups he claims to fear in Iraq and the aspects of inconsistent evidence given by him as discussed above.

    [17] See folios 47-48, 59-67 of the Tribunal file.

23. In addition, available country information indicates that fraudulent documents are widely available in Iraq and genuine documents obtained through fraudulent means (and, therefore, containing false information) are also common in Iraq.[18]   In its letter of 14 March 2019, the Tribunal put this to the applicant in terms of the weight it would give these documents. No direct response was received by the Tribunal beyond the representative urging the Tribunal to consider the documents.  The Tribunal finds that the contents of these documents are false and does not give evidentiary weight to them.

    [18] See DFAT Country Information Report Iraq, 9 October 2018 at 5.38.

24. The representative made reference to a letter from the Department to the applicant’s wife in January 2014 advising her that it would be some years before her application for a partner visa was processed.  The representative submitted that while the letter advised of delay, it would still have given the applicant’s wife some hope that she would be able to come to Australia and that was why she remained in Iraq until late 2015.   That may well be so, but that does not deal with or explain the concerns the Tribunal holds about the applicant’s credibility which are discussed above.

25. The Tribunal agrees with the delegate that the applicant advanced incorrect information when he applied for protection.  The applicant claimed, at that time, that he was stateless, when, in fact, he held citizenship of Iraq.  The applicant, himself, concedes this and, in effect, concedes that he advanced incorrect information when he applied for protection.  In reaching this finding, the Tribunal considered submissions made by the representative on this issue.  The representative submitted that the applicant’s claim when he applied for protection that his citizenship at birth was ‘stateless’ should be considered as correct because he did not have the citizenship of any country at that time.  While the representative makes that claim, it is conceded by all that the applicant gave incorrect information in claiming that he was stateless and did not hold the citizenship of Iraq. 

1. The representative also submitted that statelessness did not, by itself, justify the grant of refugee status.  It was submitted that, in addition, the applicant would still have had to have a well-founded fear of persecution based on a convention ground.  The Tribunal acknowledges this submission, but, the fact remains that, the applicant gave incorrect information in applying for a protection visa, namely, his claim that he was stateless.  Accordingly, 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?

2. 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).

3. 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 holder to the community.

4. 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 Procedural 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.

   Factors related to the non-compliance [19]

   [19] Factors related to what was the correct information; what was the content of the genuine document; was the visa grant based wholly or partly on incorrect information; the time elapsed since non-compliance; the circumstances under which non-compliance occurred (how or why did it occur).

5. The incorrect information for which the applicant’s visa was cancelled was his claim that he was stateless when, in fact, he was a citizen of Iraq.  The representative submitted that whether or not the applicant was stateless did not form the basis on which the Independent Merits Review found he was entitled to protection. It was submitted that his protection claims were essentially based on the work his uncle did for international forces.  While the Tribunal agrees that the applicant did advance those protection claims, he did also claim, as discussed above, that he was stateless and the tenor of his claims was that this was a reason he would not be afforded protection in Iraq for the harm he feared.  Therefore, the incorrect information could not rightly be said to be insignificant as the representative purports to claim.

6. With respect to the circumstances under which the applicant claimed he was stateless, he said that this was based on advice he was given in a detention centre and a fear, at that time and after, that if he revealed his Iraq citizenship he could be sent back to Iraq.  The Tribunal has discussed those matters above in its assessment of the applicant’s credibility and, based on a cumulative consideration of its credibility concerns, finds that the applicant is not a witness of truth and the account of events on which his protection claims are based is false.  Therefore the claimed circumstances under which he put forward the incorrect information are not matters in his favour in deciding if his visa should be cancelled.  The Tribunal acknowledges that it has been some years since the applicant maintained this claim that he was stateless.

   Factors related to the applicant’s other or subsequent behaviour [20]

   There appear not to be any other instances of a failure on his part to comply with Australian law.  The applicant himself said that he had not breached any other laws when this was put to him at the hearing.

   Factors related to the applicant’s circumstances [21]

   [20]  Factors related to the subsequent behaviour of the applicant; other instances of non-compliance and their seriousness.

   [21] Factors related to the present circumstances of the applicant; international obligations potentially breached; best interests of the child and family unity; hardship caused to the applicant, his wife and child; non-refoulement obligations such that the applicant is not returned to serious or significant harm; consequences of cancellation, rendering the applicant being in Australia unlawfully and subject to detention; any  inability to make another visa application without Ministerial intervention; cancellation leading to others losing their visa entitlement and the applicant’s contribution to the community.

7. The applicant is a [age]-year-old man from Iraq.  He was born in [Country 2] and in 1991 was expelled from there with his family to Iraq.  He concedes that he gained citizenship of Iraq at some point after that. The applicant is married and has, at least one child. His wife and child are living in Europe. He has a father and brothers in Iraq.  The applicant is a Shia Muslim and his native city is in the province of Dhi-Qar.  In this context and in terms of considering Australia’s international obligations, including non-refoulement obligations, the Tribunal considered relevant country information about Iraq.

8. In this respect, country information indicates that the Shia population of Iraq is approximately 23 million.[22]  The Shia population is concentrated in the south and east of Iraq, which includes the area in which the applicant’s native city is located.[23]  They face little or no official discrimination as the majority community with a dominant role in the government.[24]  Societal discrimination against Shias is highly unlikely in Shia majority areas where the applicant lives.[25]  Instances of violence against Shias in Shia majority areas is isolated and violence between or among Shias affects those involved in the militia groups that carry out that violence as opposed to ordinary civilians.[26]  DFAT assesses a moderate risk of violence for Shias during their religious festivals and pilgrimages.[27]  In terms of security more broadly, southern Iraq, including the province in which the applicant’s native city is located, is more secure than other parts of the country.[28]  Both Sunni and Shia Iraqis who have sought asylum overseas and returned to the south of Iraq have done so without significant difficulty.[29]

   [22] See DFAT Country Information Report Iraq, 9 October 2018, at 2.9 – 2.10.

   [23] See DFAT Country Information Report Iraq, 9 October 2018, at 2.12.

   [24] See DFAT Country Information Report Iraq, 9 October 2018, at 3.32.

   [25] See DFAT Country Information Report Iraq, 9 October 2018.  At 3.32 DFAT states:

   “[R]eported instances of societal discrimination, particularly in relation to economic and employment opportunities, are likely to be associated with patronage and nepotism, such as not having the right contacts to secure access to jobs or housing. In areas where Shi’a are not the majority religious group, employment discrimination is likely to be more pronounced, but still closely linked to patronage and nepotism. Relocation to Shi’a areas substantially reduces the risk of discrimination.”

   At 3.34, DFAT states that Shias do not face official discrimination and do not face societal discrimination in Shia majority areas.

   [26] See DFAT Country Information Report Iraq, 9 October 2018, at 3.33.

   [27] See DFAT Country Information Report Iraq, 9 October 2018, at 3.34.

   [28] See DFAT Country Information Report Iraq, 9 October 2018, at 5.15.

   [29] See DFAT Country Information Report Iraq, 9 October 2018, at 5.16.  Related to this statement is also the following statement from DFAT at 5.24:

   “DFAT is aware of considerable evidence that Iraqis who are granted protection return to Iraq, sometimes only months after securing residency in Australia, to reunite with families, establish and manage businesses or take up or resume employment. The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. DFAT has limited evidence to suggest that voluntary returnees face difficulties in assimilating back into their communities.”

   The Tribunal notes that DFAT discusses the situation of ‘Bidoon’ from Kuwait but in relation to those who are stateless -  see 3.80 – 3.85.

9. From this country information, the Tribunal infers that the applicant is free to seek accommodation and employment in his native city and will not encounter discrimination in doing so as a Shia.  Given the applicant does not belong to a Shia militia, the risk of him being harmed in intra Shia violence that occurs in the south of Iraq is remote.  Given instances of anti-Shia violence are isolated and acknowledging risk at Shia religious festivals, the Tribunal infers that the risk of the applicant suffering serious harm due to anti-Shia violence and in the context of the overall security situation in the province where his native city is located is remote.

10. The Tribunal discussed this country information with the applicant and put these inferences to him.  In response, the applicant said that he will be targeted because his uncle assisted international forces.  The representative made the same submission a number of times. For the reasons given above, although the Tribunal accepts that the applicant’s uncle assisted international forces, the Tribunal disbelieves the applicant’s claims about him and his family being threatened after the applicant’s uncle left Iraq.  The applicant’s uncle said that if the applicant returned to Iraq he would not find employment. The applicant has not claimed that he was denied employment in Iraq and he will return to his native city in a part of Iraq in which Shias are the majority and so discrimination against him is highly unlikely.

11. The representative submitted country information about various events in the south of Iraq where the applicant’s native city is located.   This covered the removal of Iraqi troops from that part of the country due to pressure from Shia militias there.  Another topic was protests held in that part of the country in 2018 related to grievances over the supply of electricity and water as well as unemployment.  Another source referred to anti-Western sentiment in Iraq generally including in Shia majority areas.  This included a protest in Basrah when the United States Embassy in Israel was moved to Jerusalem.  General claims were made in these references to the security situation in Iraq being fluid.

12. The Tribunal has considered this information but remains of the view that the risk of the applicant suffering serious harm in Iraq is remote.  While Shia militias have a presence in the south of the country, it is members of those groups who are most likely to suffer harm in violence between them and the applicant does not belong to those groups.  Notwithstanding the removal of Iraqi troops, country information indicates that security is better in that part of the country.  The Tribunal acknowledges that the security situation may change but the Tribunal must make an assessment based on available country information. The representative has not produced country information that conflicts with or would cause the Tribunal to depart from the country assessment made by DFAT on which the Tribunal relies in this decision.

13. The Tribunal acknowledges protests that take place there over living conditions, but, there is no credible evidence before the Tribunal that the applicant was denied employment in Iraq.  He did not claim protection on the basis of living conditions, but, rather, on the basis of his uncle’s former service for international forces.  For the reasons given above, the Tribunal does not accept his claims about harm suffered on the ground.  While the Tribunal also acknowledges anti-Western sentiment, country information relied on by the Tribunal, and, as set out above, indicates that Iraqis have returned to Iraq after seeking asylum in western countries without significant difficulty.

14. The representative also submitted that a real chance of serious harm could exist even if that chance was only ‘10%’.  The Tribunal acknowledges this claim, but, based on available country information, finds that the risk of the applicant suffering serious harm in Iraq is remote.  The representative complains that this issue and country information relevant to that issue was not explored with the applicant by the delegate.  Whether or not that is so, the issue and relevant country information was discussed with the applicant at the Tribunal hearing and the applicant had ample opportunity to make whatever submissions he wanted to make on that issue.  Those submissions and those of his representative have been dealt with above. 

15. For the reasons given, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in Iraq.  For the same reasons, the Tribunal finds that there is not a real risk that he will suffer significant harm.  Whatever risk exists of the applicant suffering harm in Iraq, it is not such that it would be a ground for finding that the applicant’s visa should not be cancelled.  The cancellation of the applicant’s visa does not lead to breach of any international obligations Australia might hold towards this applicant.

16. With respect to other relevant factors, aside from the risk of the applicant suffering serious or significant harm on return to Iraq, the Tribunal accepts that having to leave Australia and return to Iraq will cause this applicant some upheaval given he has lived here since 2010.  However, his immediate family, in the form of his wife and child, are not in Australia.  As indicated above, the applicant does have family members in Iraq who can help him to re-integrate into life there.  He has the additional option of seeking to be granted permission by the country where his wife and child reside to reunite with them there.  While the applicant appears not to be able to make any other visa application, cancellation of his visa does not affect any other family member in Australia.  It may mean that the applicant goes into detention pending his removal from Australia. However, the amount of time the applicant spends in detention can be shortened by his willingness to leave the country.

17. With respect to the applicant’s contribution to the community in Australia, when this was discussed with him at the Tribunal hearing, the applicant said that he had been acting as the carer for a friend, helping him with tasks around the house.  This arrangement ceased once the applicant found work [in Occupation 1]. He thought that someone else was now caring for this friend.  In terms of his present circumstances in Australia and when that was discussed with him, the applicant said that human rights were respected here.  None of these matters make valid reasons as to why his visa should not be cancelled.

    Formal finding on whether visa should be cancelled

18. The Tribunal acknowledges that the only instance before it in which the applicant has not complied with Australian law is the provision of a false claim when he applied for protection.  Further, that instance of non-compliance occurred some years ago.  Nevertheless that instance of non-compliance is not insignificant.  In addition, while the applicant said he committed non-compliance to avoid being sent back to Iraq the Tribunal finds that the account of events on which his protection claims are based is false.  As discussed above, the Tribunal also finds that there is not a real chance that the applicant will suffer serious harm in Iraq nor a real risk that he will suffer significant harm there. 

19. His work [in Occupation 1] and his assistance to a friend do not justify any decision to allow him to remain here.  He is free to return to his native city where he said he has family members.  He can decide whether to seek to reunite with his wife in the country where she lives at the same time that he integrates into life in Iraq.  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.  Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.[30]

    [30] The Tribunal had access to the Department files specified on the first page of this decision. Any contents of those files relevant to the grounds on which this review has been determined are discussed above in this decision.

    DECISION

20. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

    Paul Millar
    Member