1731064 (Refugee) [2022] AATA 1546 (3 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1731064
COUNTRY OF REFERENCE: Iraq
MEMBER:James Lambie
DATE:3 May 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 03 May 2022 at 5:53pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect answers given in visa application – fear of harm from militia – religion and imputed political opinion – two voluntary extended returns to home country with no harm – initial claim of losing passport at sea – found in possession of valid passport used before and after arriving in Australia – later claim of surrendering passport to people smugglers and them returning it to his brother – travel to third country on Australian titre de voyage, then to home country on own passport – compassionate and compelling reasons for travel – father’s serious illness and surgery – time in home country declared on incoming passenger cards – discretion to cancel visa – vague and inconsistent claims of activities and interest to militia – limited adverse profile – late provision of some supporting documents – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 46, 48A, 101(b), 107(1), 108, 109(1), 438
Migration Regulations 1994 (Cth), r 2.41; Schedule 8, Visa Condition 8559CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Housam Slayman v MIMA [1997] FCA 841
MIAC v Khadgi (2010) 190 FCR 248
Saleem v MRT [2004] FCA 234
Singh v MIEA (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tarasovski v MILGEA (1993) 45 FCR 570
Wan v MIMA (2001) 107 FCR 133
Zhao v MIMA [2000] FCA 1235Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Department of Home Affairs (the Department) to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that [the applicant] had not complied with s.101(b) of the Act in respect of the answers he had provided in his protection visa application. 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 23 February 2021, 13 April 2021 and 24 January 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by…
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CaseChat Overview and Summary
The Administrative Appeals Tribunal (AAT) considered a decision to cancel a protection visa granted to an Iraqi national. The applicant had claimed to fear harm from militias in Iraq due to his religion and imputed political opinion. The Department of Home Affairs had cancelled the visa under section 109 of the Migration Act 1958, finding that the applicant had failed to provide correct information in his visa application and subsequent interactions with the Department.
The primary legal issues before the Tribunal were whether the applicant had failed to comply with section 101(b) of the Migration Act by providing incorrect information, and if so, whether the cancellation of his visa was appropriate. Specifically, the Tribunal had to determine if the applicant's claims regarding his fear of harm in Iraq and the status of his Iraqi passport were truthful and consistent with his subsequent actions. The Tribunal also considered whether the delegate had reached the necessary state of mind to issue a notice of intention to consider cancellation and if that notice complied with statutory requirements.
The Tribunal affirmed the decision to cancel the visa, finding that the applicant had provided incorrect information regarding his identity and protection claims. The Tribunal was not satisfied that the applicant's claims of fearing harm from militias were credible, particularly in light of his two voluntary extended returns to Iraq using his own passport, for a cumulative period of approximately six months. The Tribunal found the applicant's explanations for these returns, including the initial loss of his passport and its subsequent return via people smugglers, to be implausible. The Tribunal concluded that the applicant had likely always had access to his passport and had deliberately concealed his travel to Iraq to avoid scrutiny of his protection claims. The Tribunal found that the applicant's actions and the inconsistencies in his statements cast significant doubt on the reliability of his original claims, leading to the conclusion that he had not complied with section 101(b) of the Act.
The Tribunal affirmed the delegate's decision to cancel the applicant's protection visa. The Tribunal found that the reasons for cancellation, including the provision of incorrect information and the implausibility of the applicant's explanations for his travel history, outweighed the reasons submitted by the applicant for not cancelling the visa.
The primary legal issues before the Tribunal were whether the applicant had failed to comply with section 101(b) of the Migration Act by providing incorrect information, and if so, whether the cancellation of his visa was appropriate. Specifically, the Tribunal had to determine if the applicant's claims regarding his fear of harm in Iraq and the status of his Iraqi passport were truthful and consistent with his subsequent actions. The Tribunal also considered whether the delegate had reached the necessary state of mind to issue a notice of intention to consider cancellation and if that notice complied with statutory requirements.
The Tribunal affirmed the decision to cancel the visa, finding that the applicant had provided incorrect information regarding his identity and protection claims. The Tribunal was not satisfied that the applicant's claims of fearing harm from militias were credible, particularly in light of his two voluntary extended returns to Iraq using his own passport, for a cumulative period of approximately six months. The Tribunal found the applicant's explanations for these returns, including the initial loss of his passport and its subsequent return via people smugglers, to be implausible. The Tribunal concluded that the applicant had likely always had access to his passport and had deliberately concealed his travel to Iraq to avoid scrutiny of his protection claims. The Tribunal found that the applicant's actions and the inconsistencies in his statements cast significant doubt on the reliability of his original claims, leading to the conclusion that he had not complied with section 101(b) of the Act.
The Tribunal affirmed the delegate's decision to cancel the applicant's protection visa. The Tribunal found that the reasons for cancellation, including the provision of incorrect information and the implausibility of the applicant's explanations for his travel history, outweighed the reasons submitted by the applicant for not cancelling the visa.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision. What are the issues before the Tribunal? 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.Has the delegate reached the requisite state of mind to give the applicant the s.107 notice? Section 107 is only engaged if the Minister or delegate considers that the applicant has not complied with one of the provisions mentioned in s.107(1). If a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the applicant has not complied with one or more of the relevant provisions. The Tribunal has considered submissions made by the applicant, the terms of the s.107 notice given to the applicant, and the language used by the delegate to inform the applicant of her intention to consider cancellation. In the present matter, 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?What were the particulars of the non-compliance set out in the notice? On 11 April 2017, the delegate issued a notice under s.107 of the Act advising that they considered that [the applicant] did not comply with s.101(b) of the Act, that is, the Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act. The non-compliance was identified and particularised in the s.107 notice in the following respects:[In] September 2010 you arrived on Christmas Island as an undocumented Irregular Maritime Arrival. You identified yourself as [applicant name] born [Date] in Babil, Iraq, who left Iraq in 2006 and has since resided in [Country 1], where you were found by UNHCR to be a refugee and where you also studied your Master of [Subject 1] at [University 1].On 4th March 2011 your claims for Protection were accepted and DIBP found that you met the definition of a refugee set out in Article 1 A of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.On 1st May 2011 you applied for a Protection visa subclass XA-866.In your DIBP Form 866 Part C-Application for an applicant who wishes to submit their own claims to be a refugee you provided the following answers:In the section "Details of applicant":Q. 1 What is your full name?You replied:Family name: “[applicant surname]” Given names: “[applicant given names]” Q. 2 Name in your own ethnic script or charactersYou wrote your name in what appears to be Arabic script. Q.3 What other ways do you spell or write your name? Also write in your own script or characters (if applicable)You replied “[Alias]"In the section “Travel to Australia”:Q. 28 Details of your current travel documentType of document (e.g. passport): “N/A”Q. 30 Have you ever had, or used, any other passport or travel document? You ticked the “Yes” box and replied:Type of document (e.g. passport): “False passport”Document number: “Unknown”Country of document: “Unknown”Name on passport: “Unknown”Where is it now? “Smuggler took it” In the section “Your reasons for claiming protection”: Q. 41 I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries)You replied: “Iraq”.Q.42 Why did you leave that country?You replied: “See statement attached to RSA application”. Q.43 What do you fear may happen to you if you go back to that country?You replied: “See statement attached to RSA application”Q. 44 Who do you think may harm/mistreat you if you go back?You replied: “See statement attached to RSA application” Q.45 Why do you think this will happen to you if you go back? You replied: “See statement attached to RSA application”Q. 46 Do you think the authorities of that country can and will protect you if you go back? If not, why not?You replied: “See statement attached to RSA application”The Statement dated 19th December 2010 referred to at questions 42, 43, 44, 45 and 46, relevantly states:"I, [applicant name] ...Introduction:1. I am a citizen of Iraq. I do not have right to citizenship or a right to reside in any other country.2. Iain Arab and a Shia Muslim.3. I was born on [Date] in [city] IRAQ.The country to which I fear returning5. I fear returning to Iraq ...Why I left that country6. Our town was mainly populated by Shia Muslims. A prominent leader in our town Ali-Alsastani, was a peaceful clerk who was supported by many of the town people.7. I was a follower of Ali-Alsastani and supported his peaceful approach for unity between the Shia and Shia Muslims. He was calling for peace from all parties.8. The Shia's broke up into 2 different groups, one group was supporting Ali Alsasta11i and the other group supported Moktada Al Sadir. The Moktada Al Sadir started the Mahdi militia...What I fear my happen to me if I return to that country and why20. I believe if I return to Iraq I be killed for reasons of imputed political opinion and religious grounds ... The militias control the political scene which I oppose. I openly discussed this with my friends and other educated prominent people in our community. I was threatened by the Militia that my thinking was un-Islamic and that I would be punished with dead for having insulted their leader.Who I think may harm/mistreat me in that country and why21. I believe ff I return to Iraq I would be at a real risk of facing serious harm by the militia and Al Mahdi army.Why I think the authorities of that country cannot or will not protect if I were to go back to that country22. The Militia hold positions in government. I could not ask for protection and anyway they can’t protect themselves. Why I think relocation to another area in my country is not a reasonable option23. I attempted to relocate and I was unable to subsist in Baghdad. The Militia would still be able to find and therefore I fear returning.”On 3rd May 2011 you signed the declaration at Q. 65, of Form 866C which states in part:“I, [applicant name], Perth IDC…do solemnly declare:The information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail.”Based on this information and meeting all other relevant criteria, you were granted a Class XA, Subclass 866 Protection visa on 4 May 2011. Reasons for possible non-compliance with section 101(b): Departmental records show that you departed Australia [in] May 2012 on your Australian Titre de Voyage no. [Number 1]. According to your Outgoing Passenger Card, you indicated that the country in which you would spend most time abroad was [Country 2], and your main reason for overseas travel was visiting friends or relatives.Departmental records show that you returned to Australia [in] September 2012 on your Australian Titre de Voyage no. [Number 1]. According to your Incoming Passenger Card, the country in which you spent the most time abroad was Iraq.Departmental records show that you departed Australia [in] July 2013 on your Australian Titre de Voyage no. [Number 1]. According to your Outgoing Passenger Card, you indicated that the country in which you would spend most time abroad was Iraq, and your main reason for overseas travel was visiting friends or relatives.Departmental records show that you returned to Australia [in] September 2013 on your Australian Titre de Voyage no. [Number 1]. According to your Incoming Passenger Card, the country in which you spent the most time abroad was Iraq.When interviewed by DIBP at [Airport 1] [in] September 2013 you provided the following information:·You had spent the duration of the trip in Iraq visiting your father who is ill, apart from 5 days in [Country 3].·You were in possession of an Iraqi passport number G[Number 2] which is yours.·Your actual name is as it is in your Iraqi passport i.e. [Alias]·[Alias surname] is your great grandfather’s name, [Alias first given name] is your first given name, [Alias second given name] is your second given name and [Alias third given name] is your third given name and also your grandfather’s name.·Your Titre de Voyage surname of [applicant surname] is the name of your tribe in Iraq.You have therefore spent approximately 6 months outside Australia within approximately 2 years and 4.5 months of being granted your Protection Visa. DIBP at [Airport 1] photocopied your Iraqi passport number G[Number 2] in the name [Alias] born [Date], issued in Baghdad [in] 2008 and expiring [in] 2016. Your Iraqi passport number G[Number 2] contained the following departure and arrival stamps and visas:·Issued on 5th May 2008 [Country 1] Multiple Entry Visa no. [Number 3] and Student Pass valid for multiple entry and stay in [Regions of Country 1] until 25th May 2009. ·Issued on 23rd April 2009 [Country 2] tourist visa no. [Number 4] valid until 22nd May 2009 for single entry and for 1 month stay. ·[May] 2009 entry stamp for Holy Najaf International Airport, Iraq. ·[June] 2009 departure stamp from Iraq [port name too pale to read]·Issued 29th September 2009 [Country 1] Multiple Entry Visa no. [Number 5] and Student Pass valid for multiple entry and stay in [Regions of Country 1] until 16th September 2010. ·[May] 2012 entry stamp for Holy Najaf International Airport, Iraq.·[August] 2012 departure stamp from Baghdad International Airport, Iraq.·[July 2013] entry stamp for Iraq. ·Issued 8th September 2013 [Country 3] visa no. [Number 6] valid for single entry and 30 days stay. ·[4]/1392 entry stamp for [Country 3] [port name illegible] ·[7]/1392 exit stamp from [Airport 2], [Country 3].·[September] 2013 departure stamp from Holy Najaf International Airport, Iraq.On 20th December 2014 you sent an email to DIBP requesting that DIBP allow you to apply for Australian citizenship 4 months earlier than your eligibility date of 4th May 2015 "because' I get job overseas and want to get my citizenship before I travel. "On 7th May 2015 you applied for grant of Australian citizenship. In support of your identity you submitted a certified copy of the biodata of your Iraqi passport no. G[Number 2] plus a different Iraqi nationality certificate to the one which you had provided to DIBP when you applied for RSA. The photo on the Iraqi nationality certificate which you provided for your Australian citizenship application bears a more recent photo and does not have the 5 dry stamps/stickers and 3 wet stamps/seals along the bottom of the document nor the triangular wet stamp/seal on the left page which the other Iraqi Nationality Certificate had.According to DFAT Country Report - Iraq - I 3/0212015 [accessed on 21st February 2017];Exit and Entry Procedures5.30 A valid travel document (usually a passport) and appropriate entry visa for the intended destination is required for exit from Iraq. For Iraqi nationals returning on their Iraqi passport, the border official checks and registers the passport number, name and date of birth of the bearer.Therefore I consider that:·The Iraqi passport number G[Number 2] is a genuinely issued document, and that therefore your claim in your Protection Visa application form 866C of 1st May 2011 and your RSA statement of 19th December 2010 that you used a false passport to travel to Australia was incorrect.·Your Iraqi passport G[Number 2] is genuine because in order to obtain it you would have had to provide the Iraqi authorities with a range of supporting documents such as your birth certificate, your Iraqi identity card and your Iraqi citizenship ce1tificate and because you have used that passport to apply for visas for [Country 3], [Country 2] and [Country 1] and because you have travelled to and from Iraq, [Country 3], and [Country 1] on that passport.·Your Iraqi passport G[Number 2] would have been checked by Iraqi officials both on your returns to and your exits from Iraq. On your returns Iraqi officials would have registered the passport number and the name and date of birth of the bearer. On your exits from Iraq Iraqi officials would have checked that you had the appropriate entry visas for your intended destinations.·You have returned to Iraq twice in your true identity of [Alias] without significant issue and there has been no apparent change in your circumstances or country information.Your Protection visa was granted on the basis that you satisfied the Minister that you engaged Australia's protection obligations under the Refugees Convention. You have consistently maintained at time of your protection visa application that you could not return to Iraq because you would face serious harm from the militia and the Mahdi army because of your imputed political belief and religious grounds. These claims were fundamental to the determination that you are a person to whom Australia has protection obligations. As the incorrect information you provided was material to this determination it appears you may not have engaged Australia's protection obligations.I consider that the following information provided in and in support of your application for a protection visa is incorrect:In relation to your DIBP Form 866 Part C -Application for an applicant who wishes to submit their own claims to be a refugee:·At question 30 where you stated that you had used a false passport whose document number, country of document and name on the passport were unknown to you and which had been taken by [the] smuggler.I find that this claim is incorrect because it is apparent that you have used your Iraqi passport no. G[Number 2] in the name [Alias] to apply for visas for [Country 3], [Country 2] and [Country 1] before your Protection Visa subclass 866 was granted and because you have travelled to and from Iraq, [Country 3], and [Country 1] on that passport before your Protection Visa subclass 866 was granted. Furthermore, you have travelled back to Iraq twice since your Protection visa subclass 866 was granted without impediment or issue and on both occasions you used your Iraqi passport no. G[Number 2] to enter and to exit Iraq. Your Iraqi passport no. G[Number 2] in the name [Alias] was in your possession when you returned to Australia [in] September 2013 and you admitted that it was your passport and that your actual name is as it is in your Iraqi passport i.e. [Alias].·At questions 43, 44, 45 and 46 where you referred to your RSA Statement is incorrect as detailed below.In your RSA statement of 19th December 2010 in response to the question "What do you fear may happen to you if you go back to that country?" [Iraq] [which corresponds to Q. 43 in your DIBP Form 886C] you claimed:What I fear my happen to me if I return to that country and why20. I believe if I return to Iraq I be killed for reasons of imputed political opinion and religious grounds…. The militias control the political scene which I oppose. I openly discussed this with my friends and other educated prominent people in our community. I was threatened by the Militia that my thinking was un-Islamic and that I would be punished with dead for having insulted their leader. I find that your response that you would be killed for reasons of imputed political opinion and religious grounds if you returned to Iraq is incorrect because you have voluntarily returned to Iraq on two occasions for approximately six months and on both occasions you used your Iraqi passport no. G[Number 2] to enter and to exit Iraq with no apparent issue. I consider given your voluntary travels back to Iraq under your true identity without significant issue and with no apparent change in your circumstances or in country information suggests you did not hold the claimed adverse profile nor were you of adverse interest to the militia or al Mahdi at time of your protection visa application.In relation to your claims in your RSA statement of 19th December 2010 in response to the question "Who do you think may harm/mistreat you if you go back and why?" [to Iraq] [which corresponds to Q. 44 and Q. 45 in your DIBP Form 886C] you claimed:Who I think may harm/mistreat me in that country and why.21. I believe if I return to Iraq I would be at a real risk of facing serious harm by the militia and Al Mahdi army. I find that your response that you would be at a real risk of facing serious harm by the militia and Al Mahdi army is incorrect because you have voluntarily returned to Iraq on two occasions for approximately six months and on both occasions you used your Iraqi passport no. G[Number 2] to enter and to exit Iraq with no apparent issue. I consider given your voluntary travels back to Iraq under your true identity without significant issue and with no apparent change in your circumstances or in country information suggests you did not hold the claimed adverse profile nor were you of adverse interest to the militia or Al Mahdi at time of your protection visa application.In relation to your claims in your RSA statement of 19th December 20 IO in response to the question "Do you think the authorities of that country can and will protect you if you go back? If not, why not?" [to Iraq} [which corresponds to Q. 46 in your DIBP Form 886C] you claimed:Why I think the authorities of that country cannot or will not protect me if I were to go back to that country22. The Militia hold positions in government. I could not ask for protection and anyway they can’t protect themselves. I find that your claim response that you could not ask for protection in Iraq from the Militia because they hold positions in government is incorrect because you voluntarily returned to Iraq on two occasions for approximately six months and on both occasions you used your Iraqi passport no. G[Number 2] to enter and to exit Iraq with no apparent issue. I consider given your voluntary travels back to Iraq under your true identity without significant issue and with no apparent change in your circumstances or in country information suggests you did not hold the claimed adverse profile nor were you of adverse interest to the militia or Al Mahdi at time of your protection visa application.Consequently I consider that you have not complied with section 101(b) of the Act as you have provided incorrect answers to questions and incorrect answers in information provided in support of your application for a visa. If you have failed to fill in your application form in such a way that no incorrect answers are given or provided your visa may be cancelled.Section 110 of the Migration Act 1958 states that visa cancellation provisions apply whatever DIBP's source of knowledge of the visa holder's non-compliance (please seep. 17 of this NOICC). Therefore the above-mentioned incoming and outgoing DIBP passenger cards and your Iraqi passport which contains the above-mentioned visas, arrival and departure stamps for [Country 3], [Country 1] and [Country 2] as well as your departure and arrival stamps for Iraq was in your possession on your return to Australia [in] September 2013 show that:·Your Iraqi passport number G[Number 2] is not a false passport and·Your true identity is [Alias] and·Your Iraqi passport number G[Number 2] has been used both before and after you were granted your Australian Protection visa subclass 866 and·You voluntarily returned to Iraq on two occasions for approximately six months and·On both occasions you used your Iraqi passport no. G[Number 2] under your true identity to enter and to exit Iraq with no apparent issue and with no apparent change in your circumstances or in country information and·Therefore you did not hold the claimed adverse profile nor were you of adverse interest to the militia or al Mahdi at time of your protection visa application and·Therefore you have submitted incorrect information at the above stages in relation to your application for a Protection visa subclass XA-866.Therefore your Protection visa subclass XA-866 is liable for consideration of cancellation under section 101 (b) of the Migration Act 1958.Possible reassessment of non-refoulement obligations:The response you provide to the information/observations made and put to you in this Notice may be used to re-assess Australia's non-refoulement obligations in relation to you.Your response to the following additional information will also be considered:It is noted that in your initial interactions with the department, you claimed that you were a Shia and a follower of Ali-Alsastani. You claimed that you were threatened to be killed by militia because your thinking was considered to be un-Islamic and you were seen as someone who had insulted their leader, Moktada Al Sadir. You claimed that upon return to Iraq, you feared being killed for reasons of your political opinion and your religious beliefs and that you could not avail yourself of state protection.As noted above in this Notice, you have returned to Iraq for a cumulative period of 187 days since the grant of your Protection visa. Your actions appear to be in contradiction with your claims that you would be seriously harmed or even killed by the Mahdi Army/militia if you returned to Iraq.Your voluntary return to Iraq and your extended periods of stay in Iraq could indicate that you do not hold the alleged adverse profile as claimed in your Protection visa application.Your voluntary re-entry to Iraq on two occasions and your extensive periods of residence there on these occasions, without incident, may also lead to a finding that Australia does not have non-refoulement obligations in relation to you.
Decision
Reasons for decision
The applicant submitted the following reasons why the visa should not be cancelled (as summarised by the delegate in her decision record):The visa holder submits there was no non-compliance and the grounds for cancellation set out in the NOICC do not exist in this case.The visa holder refers to similar visa cancellation cases that have been set aside at the Administrative Appeals Tribunal, citing the tribunal was not positively satisfied of the incorrectness of the answers to questions particularised in the NOICC to warrant visa cancellation on the basis of return to country of reference.The visa holder submits the grounds for cancellation identified by the Department in its NOICC are not made out and they do not positively demonstrate the visa holder knowingly provided misleading information in his application for Protection visa.The visa holder returned to Iraq due to compassionate and compelling reasons, to visit his father who had fallen seriously ill at the urging of his family; and that this does not necessarily mean his voluntary return to Iraq means his claims for protection were false.The visa holder submits his Protection visa is not subject to visa condition 8559, which prohibits Protection visa holders who were granted their visas on or after 3 June 2013 from travelling to the country from which they sought protection, unless they have permission from the Department. The visa holder submits his reasons for returning to Iraq would satisfy the Department's definitions set out in the policy in PAM 3, which includes visiting seriously ill family members or attending the funeral of a close relative; therefore cancellation of his visa would not be appropriate in this case.The visa holder also submits in applying the logic set out in the NOICC, it cannot be assumed by the Department in every instance a Protection visa holder seeks to return to their country of reference suggests fraudulent protection claims.The visa holder claims he has always been truthful in all of his interactions with the Department and he is a law-abiding member of the Australian community.Departmental decision to cancel the applicant’s visa under s.109 of the Act The Department proceeded to cancel the applicant’s Class XA, Subclass 866 (Protection) visa in a decision made on 30 November 2017. The delegate found that there was evidence of non-compliance by the applicant insofar as he had failed to give correct information regarding his identity and protection claims in Form 866C of his protection visa application. The delegate made the following findings:I note and accept the visa holder did provide to the Department at his entry interview on Christmas Island on 17 September 2010 his name as both [Applicant Name] and [Alias]. I find the name [Alias] and his family composition information provided at the same interview are consistent with the explanation he provided in his response to the Notice of Intention to Consider Cancellation of a visa (NOICC) and the name in his Iraqi passport.In view of the answers provided to questions 30, 43, 44, 45 and 46 for his Form 866G, his voluntary return to Iraq on two occasions for a total period of six months after the grant of his Protection visa, as well as on the basis of conflicting information provided by the visa holder in his response in relation to his Iraqi passport, I have decided the visa holder did not comply with section 101(b) of Subdivision C of the Migration Act.At his entry interview with the Department on Christmas Island on 17 September 2010, the visa holder stated he lost his Iraqi passport at sea somewhere between [Country 1] and [Country 4]. This conflicts with the visa holder's claims in his written response to the NOICC that before travelling to Australia, he had surrendered his Iraqi passport to people smugglers prior to obtaining a false passport for his planned flight to Australia, which did not eventuate.The visa holder claims the people smugglers returned his Iraqi passport by post to his brother who lives in [City, Country 5]. [In] May 2012, the visa holder departed Australia on his Australian issued Titre de Voyage and met his brother in [City, Country 5], where he was reunited with his Iraqi passport which he used for his onward travel to Iraq.I find the visa holder's claims his genuine Iraqi passport was returned to his brother after having had it confiscated in transit to Australia to be implausible. I hold the view the visa holder has likely always had access to his Iraqi passport and had deliberately departed from Australia on his Australian Titre de Voyage, then used his Iraqi passport for his onward travel to Iraq in an attempt to conceal from the Department his voluntary travel back to his country of reference, knowing that doing so would place his claimed adverse profile into question.Upon his return to Australia [in] September 2013, Department staff at [Airport 1] located the visa holder's Iraqi passport number G[Number 2] in his possession. The travel stamps and visa labels contained within the visa holder's Iraqi passport clearly indicate he used it for travel prior to his travel to Australia as an IMA and for subsequent travel to Iraq after the grant of his Protection visa. I also find the visa holder returning to Iraq voluntarily under his true identity on his Iraqi passport without any apparent harm indicates he was, and is not, of interest to the militia as claimed in his Protection visa application.I also find the visa holder's short visit back to Iraq between May and June 2009 via Najaf Airport without apparent harm, after he had allegedly fled to [Country 1] and was accepted as a refugee by UNHCR in 2007, further suggests he did not hold a real fear of harm or persecution by the militia upon return to Iraq.In view of the above considerations, I do not accept the visa holder's claims there was no non-compliance and I am satisfied he has not complied with section 101(b) of Subdivision C of the Migration Act.-Since the grant of his Protection visa, the visa holder returned to Iraq twice in his true identity of [Alias] for a total period of approximately six months without significant issue and without any apparent change in his circumstances or country information.I find the visa holder's voluntary return to Iraq after the grant of his Protection visa, and to areas in Iraq still known for intra-Shia violence indicates he was not of adverse interest to the militia as claimed at the time of his Protection visa application. The visa holder voluntarily spent approximately six months in Iraq since his visa was granted without any apparent harm or impediment.While I accept there were compassionate reasons for his return to Iraq, I consider the length of time is quite significant for a person claiming to fear harm or even death upon return to his country of reference.I find the visa holder's conflicting information regarding the whereabouts of his Iraqi passport casts significant doubts on the reliability of his comments submitted. I hold the view the visa holder has likely always had access to his Iraqi passport, or at least had knowledge of its whereabouts. However, the visa holder concealed the existence of the Iraqi passport from the Department to avoid scrutiny of his movements which would have brought into question the credibility of his protection claims, particularly his temporary return to Iraq from [Country 1] in 2009 after he had been accepted as a refugee by the UNHCR. The visa holder did not provide comment on this issue in his response.On 5 September 2017, a further assessment in relation to the visa holder's new information found him not to be a refugee under the Refugees Convention and not to be a person in respect of whom Australia has a non-refoulement obligation under the CAT or ICCPR.In view of the above considerations, I am satisfied the visa holder did not comply with section 101(b) of Subdivision C of the Migration Act 1958.Having decided under section 108 of the Act that there was non-compliance in the way described in the notice issued under s107 of the Act, I have considered all of the prescribed matters set out in regulation 2.41 of the Migration Regulation 1994. Whilst I have considered the visa holder's response to the non-compliance and reasons to not cancel his visa, I find the reasons for cancellation outweigh the reasons to not cancel in these circumstances.Evidence:
Ratio Decidendi
Legal Principle Established
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