1731064 (Refugee)

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 affirmed
LEGISLATION
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 8559
CASES
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 555
Sun 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 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 his registered migration agent, who attended only the first Tribunal hearing.
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 4^th 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 1^st 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 characters
You 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 document
Type 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 returning
5. I fear returning to Iraq ...
Why I left that country
6. 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 why
20. 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 why
21. 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 country
22. 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 option
23. 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 5^th 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 25^th May 2009.
·Issued on 23^rd April 2009 [Country 2] tourist visa no. [Number 4] valid until 22^nd 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 29^th 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 16^th 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 8^th 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 20^th 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 4^th May 2015 "because' I get job overseas and want to get my citizenship before I travel. "
On 7^th 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 21^st February 2017];
Exit and Entry Procedures
5.30 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 1^st May 2011 and your RSA statement of 19^th 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 why
20. 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 19^th 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 19^th 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 country
22. 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.

The delegate states in the NOICC that they considered that the applicant has not complied with section 101(b) of the Act as he had provided incorrect answers to questions 30, 43, 44, 45 and 46 in Form 866C of his application for a protection visa.
If the applicant has failed to fill in his application form in such a way that no incorrect answers are given or provided, his visa may be cancelled. The NOICC states that by failing to comply with section 101(b) of the Act, the applicant’s Class XA, Subclass 866 (Protection) visa is liable for cancellation under s.109 of the Act.
Response to the NOICC
The applicant responded to the NOICC through his representative on 8 May 2017. The delegate summarised the applicant’s response in her decision record as follows:
The visa holder disputes there was any non-compliance because the reason for his two returns to Iraq were based on compassionate and compelling reasons.
·   For the travel period of [May] 2012 to [September] 2012, the visa holder claims he returned to Iraq to see his father, who had fallen seriously ill. He had initially planned on returning to [Country 2] to visit relatives, however shortly before the visa holder left Australia, his father suffered a suspected stroke, his plans changed and he travelled to Iraq to see his father, help care for him and provide support to family members.
·   For the travel period of [July] 2013 to [September] 2013, the visa holder claims he    returned to Iraq due to his father's health deteriorating, requiring heart surgery in Baghdad. The visa holder claims his father urged him to return to see him and he feared he would not survive the surgery. The visa holder remained in Iraq for three months so he could tend to his father and provide support to other family members. The visa holder claims this is consistent with what he informed airport officers upon his return to Australia at [Airport 1] [in] September 2013.
·   The visa holder also disputes the Department's findings that he provided false and misleading information in his application for Protection visa.
·   The visa holder maintains he was not in possession of his Iraqi passport for his journey to Australia. He was issued a false passport by a people smuggler after he completed his university studies in [Country 1]. The people smugglers took his genuine passport as a security, as it was initially planned he would travel by boat to [Country 4] and from there travel by plane to Australia. The false passport issued to the visa holder did not contain any of his own information.
·   When the visa holder arrived in [Country 4], he was informed by the people smuggler he would be travelling to Australia by boat, rather than by air. Therefore, the visa holder no longer required the false passport. In view of this, the visa holder insists he was not incorrect in stating in his Protection visa application that he had previously used a false passport.
·   The visa holder claims the people smuggler arranged to return the visa holder's genuine Iraqi passport to his brother. The visa holder met his brother at [Airport, Country 4] following his departure from Australia [in] May 2012 and was reunited with his Iraqi passport, which he used to re-enter Iraq.
·   The visa holder maintains he has at no time provided incorrect answers or information to the Department in his application for Protection visa. He claims he did not use his genuine Iraqi passport to enter Iraq to try and mislead the Australian government, and claims this is supported by the fact he entered Iraq as his place of travel on both incoming passenger cards.
·   The visa holder also disputes he provided incorrect information regarding his identity to the Department in his Protection visa application. The visa holder claims he provided to the Department his true name and submits the following explanation of his original name:
First name: [Alias first given name]
         Father's name: [Alias second given name]
         Grandfather's name: [Alias third given name]
         Great grandfather's name: [Alias Surname]
         Tribal name: [Applicant Surname]
·   The visa holder claims all of the above names hold relevance to him and his true identity and he explained to the Department during his interview on Christmas Island that this was his true name, however the Department simplified his name to [Applicant Name, comprised of First given name and Tribal name].
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.
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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:
The Tribunal has before it a range of material, including, relevantly:
(a)the applicant’s protection visa application, which was lodged on 1 May 2011;
(b)the applicant’s identity documents submitted to the Department, being his Iraqi passport, Iraqi nationality certificate, Iraqi driver licence, UNHCR card, titre de voyage, Queensland industry authority card, Australian driver licence, student identity card and Medicare card;
(c)the NOICC under Section 109 of the Act dated 11 April 2017;
(d)the Notification of Cancellation and Record of Decision of Whether to Cancel under Section 109 of the Act, both dated 30 November 2017 (delegate’s decision);
(e)the application for review form dated 9 December 2017, which included a copy of the delegate’s decision;
(f)Department file [Number 7] concerning the cancellation of the applicant’s protection visa, which includes:
· the applicant’s response to the NOICC, being his representative’s written submissions dated 8 May 2017; and
· the applicant’s statement of claims dated 19 December 2010.
(g)Department file [Number 8] concerning the applicant’s protection visa application, which includes:
·the applicant’s statement of claims dated 19 December 2010; and
·copies of the applicant’s qualification certificates and academic transcripts.
(h)all documents submitted to the Tribunal in support of his application for review, including:
·a statutory declaration from the applicant, sworn on 31 March 2021;
·a character statutory declaration from the applicant, sworn on 15 January 2021;
·a statutory declaration from the applicant, sworn on 3 February 2018, including documents relating to his father’s hospitalisation, dated 20 August 2012 and 10 July 2013;
·the applicant’s statement of claims dated 19 December 2010;
·the applicant’s representative’s pre-hearing written submissions dated 2 April 2021;
·the applicant’s representative’s undated submissions outlining recent country information on Iraq;
·the applicant’s representative’s undated written submissions which were previously submitted to the Department for the purposes of an International Treaties Obligation Assessment;
·the applicant’s identity documents, being his untranslated Iraqi identity documents, previous passports which expired in 2011 and 2016, titre de voyage, Queensland change of name certificate, construction and security provider licences, Australian driver licence and heavy vehicle driver licence, and Queensland industry authority;
·a witness statement from [Dr A], the applicant’s older brother, dated 23 March 2021;
·various support letters from the applicant’s friends and community associates;
·employment reference from [Mr B] from [employer] dated 2 June 2019;
·the applicant’s medical records;
·the applicant’s qualifications certificates;
·the applicant’s notice of assessment issued by the ATO for the financial year ended 30 June 2017; and
·the applicant’s application for study at [University 2], as well as the genuine temporary entrant assessment form; and
(i)country information on Iraq, referred to below.
Hearing:
The Tribunal conducted hearings on 23 February 2021, 13 April 2021 and 24 January 2022. The applicant’s representative attended the first hearing only. The Tribunal hearings were conducted with the assistance of interpreters in the Arabic and English languages.
A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.438 of the Act.
The s.438 Certificate dated 18 December 2017 states that the material contained in the documents in folios 1-10 and 65-66 of Department file number [Number 7] should not be disclosed to the applicant, because “the disclosure of this information would be contrary to the public interest, because the documents or information demonstrate Departmental investigative processes, the disclosure of which may compromise the ability to perform these investigations in the future.” This certificate was not signed. However, a signed version of the certificate was received from the Department on 8 December 2021.
The Tribunal considered the validity of the Certificate. The applicant was invited to comment but did not seek to make submissions in respect of it. The Tribunal determined the Certificate to be valid for the reasons claimed. The material covered by the Certificate, however, is considered by the Tribunal not to be germane to the issues before it and has been disregarded.
At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department to cancel his protection visa under s.109 of the Act. The Tribunal noted that a delegate of the Department had formed a view that the applicant had provided incorrect information in his application for a protection visa. As a result of this, the applicant was served with a NOICC of his protection visa and given an opportunity to comment on those grounds.
The Tribunal noted that the Departmental delegate had formed a view that the applicant had not complied with the requirements of section 101(b) of the Act, referring amongst other things to the answers the applicant had provided in his application for a protection visa regarding his identity and protection visa claims. The Tribunal noted that based on all of the evidence before them, the delegate proceeded to find that the applicant had provided incorrect information in his protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.
The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in his protection visa application, the material on the Departmental cancellation file, material provided to the Tribunal at review and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the section 107 NOICC, and if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant’s benefit.
The Tribunal noted that the applicant was granted a Class XA, Subclass 866 (Protection) visa on 4 May 2011. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision record and suggested to the applicant and his representative that the Tribunal might take the applicant’s claims for protection in his protection visa application lodged with the Department on 1 May 2011 as having been read. The applicant and representative agreed.
The applicant told the Tribunal that he was born in Iraq in [Year]. He obtained his bachelor’s degree in [Subject 1] from [University 3] in 2005. In early 2006, he opened a small [shop]. He claimed that he was targeted by ‘the militia’, which is why he left his hometown of [city] and moved to Baghdad. From there, he left for [Country 1]. Soon after arrival, he went to the UNHCR and obtained a refugee card. He was told that it would take a long time for resettlement in a third country, so he obtained a job in [Country 1] helping students prepare applications and also enrolled in a master’s degree. After 2 years, the UNHCR told him there was still a long wait for resettlement. It was then that he decided to come to Australia by boat as a refugee.

The Tribunal brought the applicant back to his protection claims. He said that his [shop] was close to his family’s home. It became a popular place for people to gather, mostly friends of his. He and his friends, he said, had views on political, social and religious matters and would discuss them. More and more people would gather there and participate in conversations and discussions and this is what attracted the interest of the militia.
The Tribunal asked what it was about this informal gathering that attracted the interest of the militia. He said it was a small town and that everybody knew everybody. In particular, the playing and downloading of music onto mobile devices was contrary to the religious beliefs and sensitivities of the Shia militia. Members of the militia, he said, first started coming to the shop pretending to want to buy things. Then they would stay and deliver ‘religious guidance’ on music and technology. This led to a disagreement. The applicant cursed the militia and its leader. The militia leaders cursed him back, threatened to kill him and left the shop. He told the Tribunal that he took the threats seriously. He said that the militia had killed many people over the previous three years, including a cousin of his. His father advised him to go and stay with a brother in Baghdad.
He said he did not feel safe in Baghdad. There were a lot of bombings and militia killings at the time. His brother wanted him to go with him to [Country 6], where two of their brothers were living, but he could not obtain a visa. He travelled to [Country 1], where he ultimately obtained his master’s degree, but it was not easy to get a job. The work he had been doing there, assisting other students, dried up after 2 years. In January 2009, he made contact with a people smuggler in [Country 4] and asked about obtaining passage to Australia. The smuggler told him to wait. His [Country 1] visa expired in May 2009. He travelled to [Country 2] to see his mother, who advised him not to take the illegal option, but he felt his options were disappearing.
In July 2009, he was accepted into a [Course 1] program in [Country 1] and was able to obtain a further student visa and thereby regularise his migration status. He contacted the smuggler again, who again told him to wait. He contacted another smuggler in about December 2009 but was arrested. His visa was cancelled, and he spent some five months in detention. He was released in about May 2010 and made contact with a third people smuggler. On 2 August 2010, he travelled from [Country 1] to [Country 4]. He waited in [Country 4] until 23 August 2010 until he boarded the boat and arrived in Australia 4 days later. He had paid US$8750 in total for his passage.
The Tribunal suggested to the applicant that the tuition fees for the three years of the [Course 1] program for which he had been accepted, and for which he had been granted a visa in [Country 1], were in the order of what he had paid for passage to Australia. Why, then, had he decided to come to Australia? He said that had contacted the first smuggler after completing his master’s degree in 2008. At the time, all the money he had was US$5000. He said that, as he had previously explained, his work had dried up and he did not think he could support himself for the [years] it would take to complete [Course 1] – he needed an additional two years because his English was not then of an adequate standard. This had not been such an obstacle to his master’s because he had completed it by coursework. The Tribunal put it to him that, notwithstanding his claimed straitened circumstances, he was still able to come up with the additional US$3750 for the people smuggler and also to fly back to Iraq and [Country 2] to visit his parents from time to time. Further, in [Country 1], he had all the opportunities he had been seeking: he had been accepted into the [Course 1] program and been granted a visa to complete it. He also had the funds for tuition and the likely prospect of teaching work while undertaking the degree. He said that his master’s degree had come with subsidised accommodation, but that accommodation in [City, Country 1] was expensive. Further, he did not feel safe in [Country 1] because he had been targeted as a Shia.
The Tribunal put it to the applicant that this was a new claim. He said that, when he first came to [Country 1], he felt generally uneasy because of the attitude of other students to his Shia identity. While he was there, the [Country 1] government had adopted an explicit anti-Shia policy, and this caused him fear. The Tribunal indicated that it might accord less credence to a new claim made so long after first seeking a protection visa. In addition, it may cause the Tribunal to question the motives of making a fresh claim at this time.
The applicant told the Tribunal that, at the time he was interviewed by the delegate, this matter had not arisen. He said that he had chosen Australia to be his new homeland and did not have [Country 1] on his mind at the time. He said that, because there was so much suffering in Iraq, he had always wanted to live in a place where he felt safe. He had identified Australia as such a place. He said that pursuing his studies in [Country 1] would be very hard for him. In Australia, he could secure his future. The Tribunal put it to him that, despite the claimed difficulties in [Country 1], he was well on the way to completing advanced studies in his field and had been accepted to undertake a [Course 1]. He had also, in being granted a further student visa in [Country 1], presumably having convinced the government that he had the means and ability to undertake that course of study. He agreed but said that the [Course 1] application was only for the purposes of regularising his immigration status in [Country 1], as a step to completing his planned travel to Australia. The Tribunal put to him that the reasoning behind this plan was not readily apparent: he had a record of achievement in [Country 1], was on the way to further achievement, and had the security of a visa. The path he had instead chosen was to pay exorbitantly for the services of a people smuggler, with all the personal and financial risks that that entails, and to enter Australia as an irregular maritime arrival with no guarantee that his protection claim would be accepted. Further, there was the risk that his qualifications might not be recognised and/or that additional studies would be required for him to work in his chosen field. He said it was more honourable to him to be [an Occupation 1] in Australia than to have a [Course 1] and to be live under persecution or to be effectively stateless.
The Tribunal put to the applicant that the limited country information it had on anti-Shia policy in [Country 1] indicated that restrictions applied only to proselytization. He maintained that this reflected anti-Shia attitudes in [Country 1] and made him feel unsafe.
The Tribunal asked the applicant to turn to the issue of his passports and titre de voyage. His Iraqi passport, number G[Number 2], was issued [in] 2008 and expired [in] 2016 (“the G passport”). He had held an earlier Iraqi passport, number H[Number 9], issued [2003] with an expiry date of [2011] (“the H Passport”). He explained that the H passport, issued only a couple of weeks before the US invasion, was used to enter [Country 3] and [Country 1] in 2006. While he was in [Country 1], in 2008, the Iraqi Government cancelled the passports issued by the Saddam-era regime. He presented the H passport at the Iraqi embassy in [City, Country 1] and was issued with the new G passport.
The applicant said that, as he had explained in his interview with immigration officials when he first entered Australia, he had entered [Country 1] legally on a visa. He had been asked if he had ever been issued with another passport, to which he responded that he had been given a fake [Country 6] passport to travel from [Country 1] to [Country 4] but that he had refused to use it. He said that this had not been recorded with complete accuracy by the Immigration officials.
The Tribunal put to the applicant that his account of what happened with his G passport was of singular importance to his application. The Department had reached a conclusion on his account of this which underlay its decision as to his motivations and the veracity of his claims to be a refugee. The Department had determined that he had always possessed the G passport and had travelled out of and into Australia on his titre de voyage in order to conceal his entry into Iraq. He agreed that this was what the Department had decided but that its decision was incorrect. He also agreed that his account of what happened was that he was separated from the G passport and was not reunited with it until later. The Tribunal asked him to carefully relate his account of what happened to this passport.
The applicant told the Tribunal that he gave the passport to the people smuggler when he was in [Country 4]. He said that he had wanted to keep it as evidence of his identity, but the smuggler had instructed that no-one was to keep any passports or mobile phones with them. He said that most of the other passengers threw their mobile phones into the sea, but that he kept his. He handed the passport to the smuggler. The Tribunal asked why he would give the passport to the smuggler rather than destroy it. He said that the main organiser of the smuggling venture was [a Country 3-]-Australian. He had two associates who were either Iraqi or from [part of Country 3]. He handed the passport over in the belief that he could get it back if he needed it in the future, as evidence of his Iraqi nationality and that he had been in [Country 1] on a visa. The Tribunal asked what motivated him to leave his passport with a people smuggler, given that he would have no control over what happened to it thereafter. He said it was not the right thing to do, but he was told to this just as he was about to board the boat. The Tribunal asked again why he would not destroy it. He said there was no time to think about it, as the boat was just about to go. The Tribunal suggested that, however, he had had enough presence of mind to keep his mobile phone. It was put to him that placing his passport in the hands of a people smuggler would make him a hostage to fortune. He said that it was a quick decision, which was hurried by the instructions of the people smuggler. Some of the passengers had passports and some did not. He said he was not thinking. The Tribunal suggested that he had considered it, because he made the decision to conceal his mobile phone. He said that passports were surrendered as they boarded the boat. The instructions as to the mobile phone was a day or two later, when they were at sea. That gave people time to keep the messages and telephone numbers they needed.
The Tribunal put it to him that placing his valid, undamaged passport into the hands of someone he did not know was a grave risk. He said that he had no time to think about it. In response to the Tribunal’s question, he said that he could not remember if he had ever taken a photocopy of his passport in case he lost it. He did not take a photograph of the passport because he was only using an old Nokia which did not have a camera. He said the old model of Nokia had been noted in the paperwork at Christmas Island detention centre. The Tribunal asked if this was unusual, given that he had operated a [shop]. He said he had lost all of his belongings into the sea on the failed crossing from [Country 1] to [Country 4]. He said the police had been shooting at the boat. He said that, after being released from immigration detention in [Country 1] he had no money, so could only afford an old Nokia.
The Tribunal suggested that an aspect of the applicant’s story that had rung false to the Department was that he had given the passport to a people smuggler, who was decent enough to pass it on to his brother despite the uses to which it could have been put. He said it was passed on to his brother in exchange for money. The Tribunal asked how the smuggler made contact with his brother. He said it was his brother who had transferred money to the smuggler for the voyage to Australia, so his brother already knew how to contact him. He said, during the six or seven hours travelling to the boat departure point, he had called his brother and told him that he had given his passport to the smuggler. He asked his brother to please retrieve it from the smugglers, even if they asked for money. He said he had been thinking of the possibility that the smugglers might use the passport for something wrong. The Tribunal asked why this was the first time he had mentioned this version of events. He said that nobody had asked him directly about this before. The Tribunal noted that had had lawyers acting for him who had looked into his circumstances. They had made written submissions, describing how he came to be reunited with his passport, and had not mentioned this. He said that, now that he had re-read those submissions, he had noticed many mistakes.
The Tribunal put it to the applicant that to put forward a version of events with new details causes the Tribunal concern about his credibility. It suggested that his evidence was inconsistent with his statement of 3 February 2018, in which he said he said that, while in [Country 1], he had given the smuggler his brother’s address and details in [Country 6], and the smuggler had mailed the passport to him. He had instead told the Tribunal that his brother had already been dealing directly with the smuggler and then, at the applicant’s request, made contact with the smuggler and requested the return of the passport. He said that, in [Country 4], before leaving the house to board the boat to Australia he gave the passport and his brother’s address to the smuggler. On the way to the boat, which was a seven-hour drive, he called his brother and gave him the smuggler’s number because he was not sure the smuggler would send the passport on. The Tribunal reiterated that this did not seem to be consistent with the statement of 3 February 2018: the sense of paragraph 19 of the statement is that the smuggler simply returned it as requested. The Tribunal noted that that statement of 3 February 2018 was prepared after the cancellation decision was made, having had the opportunity to consider the delegate’s criticism of his evidence, and with the assistance of lawyers. He maintained that his evidence was consistent: the difference was that it was being given in more detail at this hearing.
The Tribunal asked how much was paid for the return of the passport. He said the smuggler asked his brother for USD$1,000. The Tribunal suggested there was a cheaper alternative: he could have contacted the Iraqi embassy and reported his passport lost or stolen. The passport would be cancelled, and he could then simply have it replaced. He said he wanted that passport itself: it had evidence in it which would help him in the future. He said the dealings with the passport were not part of the deal with the people smuggler. It was not planned. The Tribunal suggested that having the passport cancelled was the logical thing to do. All that was in his passport as at May 2012 were his [Country 1] student visas – if he wanted those details, he could get them from the [Country 1] government. He said he was not aware of the procedures that applied in Australia. He thought if he was asked for his original passport it was compulsory to produce it. The Tribunal put it to him that he had already received his protection visa some time before May 2012, so there was no need for more evidence. He said he had contacted his brother while he was still in [Country 4].
The Tribunal put it to the applicant that it was concerned about the plausibility of his account. He had said that he retrieved his G passport in May 2012, by which time he already had been granted the protection visa. He had had a year in which to have his passport cancelled and not worry about the consequences of it being in the hands of criminals or worse. It contained no evidence that, by May 2012, he any longer needed. He said the decision to give the smuggler the passport was made on the spot: it was not a part of any plans. He said he was thinking he would need the passport in Australia. He was not thinking calmly. He said, if a passport is lost, he would have to present to the embassy in person, post an advertisement in the newspaper and bring all of his original Iraqi identity documents to prove his identity. The Tribunal put it to him that he arrived in 2010 and was granted his protection visa in 2011. He was not reunited with his passport until May 2012. There were two years during which he could not know what someone might have been doing with it. He said the smuggler held onto the passport for about 9 months before sending it to his brother. After he got his protection visa, he needed documents to travel. After he found out about the availability of a titre de voyage, he stopped worrying about the passport. He said the Iraqi passport was of limited use for travel at that time. The Tribunal again asked why he would not have the passport cancelled, as he would with any lost identity documents. He did not have an explanation.
The Tribunal asked the applicant how he came to be reunited with his passport. He said that, when his family told him of his father’s serious health problems, he bought a ticket to [Country 5], where he was met by his brother. He had the passport with him. His brother bought him the ticket for his flight to Baghdad. He decided to use the Iraqi passport to avoid any bother with immigration authorities in Iraq.
The Tribunal took the applicant to the two medical reports relating to his father, included with the submissions. The Tribunal raised some concerns about the provenance of the reports but the matter was not explored in depth, owing to the expiry of the allotted time.
The hearing of this matter was resumed on 13 April 2021. In the meantime, the applicant submitted the following further material:
·His statutory declaration dated 31 March 2021;
·A letter from his brother [Dr A] dated 23 March 2021;
·Written submissions from his representative dated 6 April 2021.
His representative did not attend the resumed hearing.
The Tribunal heard evidence by telephone from [Dr A], who resides in [Country 6]. The Tribunal took him to his letter. He confirmed that he wrote the letter in Arabic and had a friend translate it for him. He said that, in July 2010, he was on holiday in [Country 7] with his family when he received a call from his brother, [the applicant]. The applicant told him that he was in a car with a people smuggler in [Country 4] and was on his way to Australia. This was the second call he had received from him: the first call was to confirm that he had arrived in [Country 4].
[Dr A] told the Tribunal that, in the second call, the applicant told him that he was giving his passport to the smuggler, as he would not be bringing it with him to Australia. He said he told him that he was taking a huge risk, leaving an important document with someone he did not know, and asked him if he was confident in doing this. He said that the applicant told him that the smugglers were very experienced and had told him it would be okay. The Tribunal put it to him that, as an experienced and educated man, it must have struck him that his proposal was not only risky but quite dangerous. He said that this had occurred to him, but the situation his brother was in was even more risky. The Tribunal asked him to explain that. He said that, after 2003, the situation in Iraq had changed and his brother was completely unsafe. What the applicant faced in that situation meant he could not return to Iraq, He said that the applicant’s situation in [Country 1] was unstable, due to his financial problems, and he was unable to support himself. The Tribunal returned him to the advisability of turning his passport over to the people smuggler. He said what made him feel more comfortable was that the applicant had given him the name and number of the smugglers. The Tribunal asked whether it might have been safer to destroy his passport or mail it to him, rather than to hand it over to the smuggler. He said that, since this event, he had spoken to some friends who said it was normal to give your passport to the smuggler in case you need it again. The Tribunal asked if he would have been worried about the threat of identity fraud or worse, He said it was in his mind was that the applicant’s life was more important than the passport which was, in any event, issued by the Iraqi government and, therefore, of little value. He said he could give an example – he was in [Country 4] and, for four months, he had been trying to renew one of his children’s passports. He was asked to provide a whole lot of additional documents, such as national identity documents, to issue a new passport. He said that was evidence that even the Iraqi government placed little value on its own passports. He said Iraqi passports therefore could not even be used for identity fraud. The Tribunal again asked if there might not be safer alternatives to handing the passport over. He said that handing over the passport was part of the agreement between the applicant and the smuggler. The Tribunal put it to him that this was not in his statement. He said he had put in the statement what he thought was important. The Tribunal took him to his statement which reads:
The smuggler accompanying [the applicant] convinced him to not bring his passport to Australia with him as he may be sent back if he was found with it.

[Dr A] acknowledged this. He said this was what the applicant had told him. The Tribunal put it to him that his evidence now was that it was a condition of undertaking the voyage that he hand over the passport. He said what he meant was that the smuggler said he shouldn’t take the passport with him and the best solution was to hand it over. The Tribunal suggested that one of the things one might fear happening under that arrangement did in fact occur. The smuggler used the passport to extort USD$1000 from his family. He said that, unfortunately, the smuggler took advantage of the situation. He said he was not physically with the applicant at the time and could not consider every angle. He trusted his brother to make the right decision for himself. The Tribunal suggested that his decision was one of the worst options. He said the applicant was one of thousands who had made the same choice.
The Tribunal asked [Dr A] if it struck him as strange that the smuggler had suggested it was more difficult to enter Australia with an Iraqi passport than without it. He said that it was known by Iraqis that, if they wanted to travel illegally, they should not take their passports. If they have their passports, they are much more likely to be sent back. He said this was common knowledge amongst Iraqis.
The Tribunal took [Dr A] to the account he gave in his letter of meeting the applicant in May 2012. He confirmed that it was at [Airport, Country 5] that he gave the applicant his passport. From there, both of them flew on to Baghdad. He told the Tribunal that their brother, [Mr C], had an apartment in the Green Zone of Baghdad because he was working there. This was the safest place in Iraq. However, the hospital to which his father was admitted was outside the Green Zone. The journey was made in [Mr C]’s [official] car, which came with a driver. He said he could not estimate the distance between the apartment and the hospital because there were many checkpoints so that the journey was punctuated by frequent stoppages. The journey might take half an hour to an hour. The applicant visited their father every day: hospital policy did not permit visitors to stay overnight. He would stay at the hospital all day. [Dr A] stayed in Baghdad for a week and then returned to [Country 4].
The Tribunal asked the applicant if there was any aspect of his brother’s evidence on which he wished to comment. He said there was nothing he wished to add.
The Tribunal asked about his arrangements in Baghdad. On each occasion he stayed with his brother, [Mr C]. He confirmed that [Dr A]’s evidence about his daily routine was correct. The Tribunal asked about the car trips to the hospital. He said that, in the car, were himself, another brother, and the driver.
The Tribunal asked the applicant about his claims to fear returning to Iraq, in light of the evidence about his two visits there. He said he felt safe using his brother’s car to transit in and out of the Green Zone. There were usually around four checkpoints to go through, but they were official checkpoints, not militia. His father, on each occasion, was in hospital for about three weeks, and the applicant stayed in [Mr C]’s apartment to look after him for about six weeks. He did not accompany him home to [City]. He said his father did not fear for his own safety there. The applicant, however, could not return to [City] because he still feared the militia. These fears were based on what the militia believed to be his political opinion. He had only felt secure in the Green Zone.
The Tribunal took the applicant to paragraph 12 of his statutory declaration of 31 March 2021, which reads:
To report a lost passport, I had to go personally to the Iraqi embassy in the country where I lost my passport and I had to announce that on a newspaper prior to going to the embassy. I could not do so after I gave the passport to the smugglers because I left by boat to Australia and spent 8 months in the detention centres and after been released from the detention centres I had been told by my brother that he already got the passport back from the smugglers. So I did not need to do anything else. The Australian immigration did not ask me to inform them in case I got my passport back and they told me on 866 grant decision that I should apply for travel document if I want to travel.
The Tribunal asked if it was correct that he had to report his lost passport to the embassy in [Country 4]. He confirmed that was correct. The Tribunal said he needed to be sure about his evidence in this regard because, if it was found not to be true, it was likely to affect the outcome of his application. He said that he was almost sure because he had spoken to another Iraqi while he was in [Country 1] who had lost his passport. This person had told him he had to go the embassy in [Country 1]. The Tribunal suggested that this made sense because he was in [Country 1]. It suggested that the procedure he described did not make sense because it may require crossing a border without a passport in order to report a lost passport. He said, in any event he did not do this because he had made arrangements for his passport to be returned.
The Tribunal asked why, after all this time, the militia would still be interested in him for what, on his account, amounted to playing music in a [shop]. He said it was not because he had a shop that was selling musical ring tones, but because he was identified by the militia as a social activist. After the uprising, there were many threats and assassinations, and the situation became very complicated and very scary. The Tribunal asked how he was identified as an activist. He said, the militia used his sale of musical ring tones as a pretext for the confrontation, but the reality was he was active in social issues. The Tribunal asked why they would take an interest in him 15 years later. He said they were still active in the region and maintain their policies of assassination. Nothing had changed. In response to the Tribunal’s question, he said that they had not threatened members of his family. The Tribunal asked if there was any objective evidence that the militia was still interested in him. He said he was from a small town, the population of which is tribal. A grievance is never forgotten, and they will always take their revenge one day. As an example, after the change in regime in 2003, a friend of his told him of an uncle who had been killed. When he asked him why he was killed, the friend said a problem had arisen in the time of the kingdom 40 years earlier and, now that the opportunity had arisen to kill him, they had done so.
The Tribunal put it to the applicant that his evidence that someone wanted to do him harm traced back to one incident 15 years ago. There was no evidence that anyone associated with him had come to any harm, or even that any enquiries had been made about him. He said that, of course, they could not threaten him now or send anyone after him because they did not know where he is. He is not active on social media to ensure the militia does not take a further interest in him. He said the situation remains very dangerous. The Tribunal put to the applicant country information to the effect that there had been a dramatic decline in civilian violence since 2006[1]. It was suggested that, while there continue to be sporadic instances of Islamic State (IS) violence, that movement is no longer a prevalent force. The southern governates of Iraq are considerably more secure than other parts of Iraq. The applicant responded that, after 2003, crime gradually increased, and the militia started to kill people who had worked for the previous regime. From 2006, the killings became so common, it was like a civil war. Killings might be less common now, but that it is because they are more targeted and professional. He said that, were he to return, he would be targeted for assassination.
[1] European Asylum Support Office (EASO) Country of Origin Report Iraq: Security Situation (March 2019) , figure 5, p 49
The applicant said that, on the one hand, the militia go after their own enemies and, on the other, they work for the government and have their own ministries and power apparatus.
The Tribunal asked if there were any other reasons that might make it dangerous for him to return to Iraq. He said that there were no other reasons. If those reasons did not exist, he would have long ago taken up a teaching position at a university there.
The Tribunal put it to the applicant that the last recorded attack by the Mahdi Army was in 2014, and that was in combat against the Islamic State. The last terrorist incident recorded was in June 2008. It asked if the applicant was aware of anything more recent to indicate he still had reason to fear them. He said that he didn’t really follow the news, but he knew they had recently held a parade to show their military strength to the Iraqi government. He said the militia are now well established and, even if he relocated within Iraq, they could contact their cadres or allies to deal with him. The Tribunal told the applicant that it was seeking some information from him that provided a basis for being satisfied that his claimed fear was well-founded, that the militia has any interest in him. The country information is that the Mahdi Army, or its successor organisation, is very interested in IS, but the Tribunal could not see why it would maintain an interest in the applicant, given that all the evidence he had given was of a short and ill-tempered exchange in his shop many years ago. He said that, if he returned, he would probably have to go back to the same sort of work he had done before and they would find him.
The Tribunal asked if he could confirm that no enquiries had been made of any members of his family as to his whereabouts. He said the militia don’t care about you if you are out of the country. They care if you are there and have done something against them. He said that a 25-year-old cousin had been killed by a person or persons unknown five months after he left.
The Tribunal said that, for clarification, the country information before it, including a specific report on the Mahdi Army, does not indicate that he might be a person of interest to the Mahdi Army. If he was sympathetic to IS, or a high-profile Sunni figure, a threat could be perceived on the country information. Revenge attacks in respect of the applicant’s claims are not a feature of the assessments of the Mahdi Army. He said it was important to understand that, on 10 April 2003, the day after the regime changed, a very important religious leader, who had been living in the UK for 20 years, returned to Iraq and was assassinated. The Mahdi Army was accused of this by the British and US governments. This was an example of what they could do and how they do not forget. The Tribunal suggested that his own circumstances seemed to be very different. It would consider the country information and any material which supported his account would be given weight. Conversely, if the country information did not support his claims it would weigh against acceptance of his claims. He said he understood.
The applicant said that he wanted the Tribunal to bear in mind an incident in 2019. There were demonstrations that he had hoped would lead to big changes in Iraq, but this same militia attacked it. The Tribunal asked if this was the incident reported by CNN in November 2019, where 319 people were killed. He confirmed that it was. The Tribunal said it would consider this in terms of his claims.
A further hearing took place on 24 January 2022. The Tribunal wished to ask the applicant about certain documents and evidence that seemed to it to be anomalous.
The Tribunal asked about the false [Country 6] passport. The applicant said the Department had asked if any false passport had been issued to him. He told them there had been a false [Country 6] passport organised for him in [Country 4] by the people smugglers. He said it was issued in a fake [Country 6] name and with fake [Country 6] details. He had sent them a photograph and they had even photoshopped [Country 6] clothing into it. At this time, he was still in [Country 1]. However, the day before the smuggler sent the passport to him, another Iraqi had used [a Country 6] passport to try to leave [Country 1] for [Country 4] and had been arrested at [City, Country 1] airport. The smuggler called him and told him he was sending the passport. The applicant said not to send it and that he would not use it. The smuggler told him he had spent money procuring it. In the event, he did not obtain the passport and did not use it, but had been honest in telling the Department about it.
The Tribunal noted that the Department records are to the effect that he had lost his Iraqi passport at sea, and that he did not claim to have travelled on his [Country 6] passport.
The Tribunal took the applicant to the two documents he had submitted relating to his father’s medical treatment. One relates to his father’s hospitalisation in June 2012, and the other to his father’s operation on 5 July 2013.
The Tribunal said it would ask him about the 2012 document first. It noted that it was in translation from the Arabic and is notated that it was translated on 15 January 2021. The medical report is dated 20 August 2012 and reads:
Based on the instructions and to our authorized powers and according to written application submitted by citizen [Alias] on 17.06.2012, please find below the medical report.
Coronary insufficiency, arterial hypertension, heartbeat acceleration. He needs another operation at [Hospital 1] and to be accompanied by [Alias].
The Tribunal asked why this report, which is dated August 2012, was never produced to the Department when it was considering the cancellation of the visa.
The applicant said that he obtained the second of these reports himself when he visited Iraq in 2013 to give to Centrelink. He had asked his brother to obtain the first report.
The Tribunal suggested that the 2012 document was addressed, ‘to whom it may concern’. This indicated that it had been requested of the treating doctor by someone, obviously the applicant, and was clearly intended to be put to some use by him. He was asked why he had requested this report. He said when the Department told him they intended to cancel his visa, they noted his travel to Iraq. To prove why he was there, he asked for this document. The Tribunal put it to him that the report is dated 20 August 2012. He said it was a referral letter to the other hospital named in the document. When he asked his brother for a document, he sent this one, dated back in 2012. The Tribunal said that it suspected the document was not genuine. It suggested that it had been issued, not as a referral, but in order to provide the applicant with exactly the evidence he needed for his application. However, it is dated three years before he knew he would need it. It is not addressed to another hospital or treating specialist, as a referral would be, but ‘to whom it may concern’.
The applicant said it was a referral letter to the [Hospital 1]. The reason it was given to him on the date of his father’s discharge from the first hospital, was to permit him to accompany his father to [Hospital 1]. The Tribunal put it to him that one of the reasons it was suspicious of the letter was that it very conveniently covered not only his father’s medical condition, but also the applicant’s presence in Iraq for the purpose he had claimed. However, it was not produced to the Department when the visa cancellation was being considered, despite it apparently being issued some years earlier and intended to be carried by him.
The applicant said he did not retain the report when he left Iraq in 2012. He asked his brother to obtain some record of their father’s hospitalisation and this document was what his brother had sent. It arrived too late to present to the Department. He did not remember exactly when he received it.
The Tribunal took the applicant to the 2013 medical report. It noted that it was dated 10 July 2013 and is in English. It purports to have been issued two days after his father’s operation. The applicant said that he had requested this letter because he needed it to give it to Centrelink. He said that Centrelink had told him that his benefit would not be affected if his travel was for a compassionate purpose, provided he could satisfy the agency that the need to travel was genuine. He presented a copy of the letter to the Centrelink office in person. He said this was why he had not produced any record that it had been provided to Centrelink. The Tribunal asked why this document was not provided to the Department. He said it was possible that his lawyer at the time had failed to provide it, but he was not sure.
The Tribunal told the applicant that the country information may also affect its assessment of his claims. It quoted from the DFAT report which states that fraudulent documents are very easy to come by in Iraq. The applicant said he had never been involved in dealing with forged documents, other than when he had been offered the false [Country 6] passport. He had refused to use that passport.
The Tribunal put it to the applicant that, while his lawyer in 2017 had made extensive submissions to the Department about his need to travel to Iraq, there was no mention of these two highly probative letters. On his evidence, the second of the letters had been in physical possession for four years, but it was not submitted. The Tribunal said the fact that they were not previously submitted may weigh heavily in its assessment of their authenticity and may, for example, give rise to an inference that they were created for the purposes of the application.
The applicant said he was prepared to obtain whatever documents the Tribunal might require in order for him to prove his case. The Tribunal said it was not so much concerned with him providing further documents as it was that the documents that had been submitted raise suspicions that they are not genuine. It took the applicant back to the document of 2012. On his evidence, the purpose of the document was to permit him to accompany his father to [Hospital 1]. It reiterated that the document itself seems much more directed to the issues in his application than to the purposes he had described. He said he disagreed with that assessment. He said he has a master’s degree in [Subject 1]: if he had intended to use a document to deceive, he would have gone through the document very closely and checked all the details to ensure there was no ambiguity. It was presented as is because it is genuine. He said that, while country information on Iraq mentions wide-scale fraud, it is not fair to compare the written communications systems in place between Australia and Iraq. The Tribunal put to him that its question about the 2012 document is what that document does. It places him at the hospital between June and August 2012. It does not seem to serve the purpose the applicant claims for it, that is to permit access to the [Hospital 1] at some later time. The Tribunal noted that the operation had not been scheduled, and would not be scheduled for another 12 months. It does not ask for the applicant to be given access to the hospital. The inclusion of the medical report is not relevant to whomever might allow him entry, because it a report would be given directly to the hospital well in advance of his father’s admission. What it does is to address a number of shortcomings in his evidence all at once. He said that it was not issued for the application: it was a referral and he wanted to make sure he could accompany his father for his operation. The Tribunal put it to him that it was not a referral: it is not addressed to a specific person, or even a specific hospital, and does not request any specific medical procedure or examination. He said that the hospital that issued the document is a teaching hospital. It conducted the first operation, but suggested that, for the second operation, he take his father to the specialist [Hospital 1]. It is not easy to have a patient admitted to [Hospital 1] because of the high demand on the hospital. Accordingly, he and his family asked for a referral letter to take with them to [Hospital 1] and to note that that he would be accompanying his father. He said that, in that sense, it was not a referral letter: it was something he and his family would take with them to persuade [Hospital 1] to admit his father. He said that the Tribunal’s questions reflected the different conditions in Australia and Ira q. The haphazard-seeming arrangements reflect the chaos in Iraq. He said there were reports recently of hospitals in Iraq burning down as a result of visiting families bringing their own cooking equipment with them. There are also reports of Covid patients being required to supply their own oxygen tanks. He said the Tribunal’s suspicions about the documents would be resolved if it saw the conditions in Iraq first-hand. Even those conditions are a vast improvement over those in 2012.

5.45 DFAT has limited evidence to suggest that voluntary returnees face difficulties in assimilating back into their communities. However, local sources have reported that returning to Iraq can be difficult, particularly if the individual does not return to their original community. Integration within new communities is complicated by the influence of patronage and nepotism on many aspects of life.

104. The Tribunal is conscious that the state of affairs in Iraq has been fluid, and the current situation is substantially different in many respects of that pertaining in 2006, when the applicant claims he decided to seek asylum.
105. The country information relevant to his particular claims is that which covers the security situation in the south of Iraq, and the activities of the Mahdi Army in that region. The overwhelming majority of the population of the southern governorates of Iraq is Shia. The EASO reports that:
Southern Iraq has largely escaped the ISIL violence that hit the rest of Iraq and many thousands of Iraqis from southern Iraq went to fight against Islamic State in 2014. Southern Iraq is ‘more secure’ than other parts of the country, although problems of criminality, drug abuse, and violence between Shia armed groups involved in militia and tribal groups also occur, including organised crime by militias, as well as kidnapping, extortion, and sex trafficking. According to a Senior Researcher on Iraq for Human Rights Watch, there are few security incidents in the south. Many involve tribes, PMUs [Popular Mobilization Units, also described as Popular Mobilization Forces (PMFs)], gangs, or a combination of all of the above[16].
[16] EASO (op cit), pp 159-160 (references and footnotes omitted).

106. The preponderance of the country information, therefore, is to the effect that, while the security situation in Iraq generally is poor, the situation in the south of the country is considerably better. The most recent assessments of the Mahdi Army are to the effect that it has shifted focus to anti-ISIL and local governance activities and that it has not been identified with terrorist incidents since 2008. However, it has been associated with organised or semi-organised criminal activity, including extortion.
107. The applicant was questioned at length at the hearing on his return travel to Iraq. I have had regard to the guidance in the UNHCR Handbook in Procedures and Criteria for Determining Refugee Status as pertinent to the assessment of the applicant’s answers in the visa application:
125. Where a refugee visits his home country not with a national passport but, for example, with a travel document issued with his country of residence, he has been considered by certain States to have re-availed himself of the protection of his former home country and to have lost his refugee status under the present cessation clause. Cases of this kind should, however, be judged in their individual merits. Visiting an old or sick parent will have a different bearing on the refugee’s relation to his former home country than regular visits to that country spent on holidays or for the purpose of establishing business relations.

108. This approach is consistent with condition 8559, which applies to protection visas granted on or after 3 June 2013. The PAM3 Guidelines state that condition 8559 allows for approval to travel to a person’s country of reference for a short period where compassionate or compelling circumstances exist justifying the travel. While condition 8559 does not apply to the applicant, its existence is an aid to assessment of whether his return to Iraq is compatible with his claim to have feared being killed or persecuted in Iraq.
109. As noted and discussed in paragraphs 69 to 78 above, the applicant relied on the medical letters of 20 August 2012 and 10 July 2013 as evidence of the compassionate circumstances surrounding the two visits to Iraq he made from Australia. As indicated in that discussion, the Tribunal doubts the authenticity of those letters for the following reasons:
(a)They were not produced in response to the NOICC, despite ostensibly having been created years earlier, being directly relevant to his claims and, at least in the case of the 2013 letter, having been in possession or control at the relevant times; and
(b)In the case of the 2012 letter, it having been apparently created for the purpose of attesting to the applicant’s claims for his travel to Iraq and not for any medical purpose, in circumstances where the need to explain the travel had not arisen.

110. The relevant country information is that “fraudulent document are reportedly commonly and cheaply available. Genuine documents obtained through fraudulent means are also common, mostly obtained by paying bribes to officials.”[17]
[17] DFAT Country Information Report – Iraq (op cit), 5.61 (p. 67)
111. These matters were put to the applicant, who maintained his claims that the documents are genuine, I did not find his explanations for their late production satisfactory, nor his attempts to explain the purpose of the creation of the 2012 letter. I have come to the view that the documents were created for the purposes of supporting his claims and, as I indicated at the hearing, find that their production tends to undermine the credence of his claims as to his reasons for travel.
112. The material before me relating to the applicant’s answers to questions 43, 44, 45 and 46 is strongly suggestive that the claimed fears are not genuinely held. However, I am mindful that, in cancellation cases, it is the existence of certain facts which grounds the exercise of the statutory power. The obligation to establish those facts is on the Minister (or, on review, the Tribunal). There is no obligation on the applicant to establish that the visa should not be cancelled. The Tribunal’s obligation is to decide whether there was non-compliance in the way described in the notice.
113. I have given careful consideration to the applicant’s answers to questions 43, 44, 45 and 46. The delegate found that the applicant’s two trips to Iraq under his Iraqi passport without suffering significant issues suggested that he did not hold the claimed adverse profile, nor was he of adverse interest to the Mahdi army, at the time of his protection visa application. While these conclusions may well have been open to the delegate, I do not think that they can be characterised as the provision of false information. In order to qualify as non-compliance, it is necessary to find that the applicant did not, as a matter of fact, hold the requisite fear at the time of the lodgement of the protection visa application. The Tribunal must be positively satisfied of the incorrectness of the answers to the relevant questions. In my view, a qualitative assessment of his claims might yield a conclusion that the claimed fears are not well-founded yet fall short of a positive finding that the applicant’s answers were incorrect. This is my assessment of the answers to questions 43, 44, 45 and 46.
114. For the reasons given in paragraph 95, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice in respect of question 30. It does not find there was non-compliance in respect of questions 43, 44, 45 and 46.
Should the visa be cancelled?
115. 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).
116. 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.

117. 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.
118. The Tribunal also gave consideration to the Departmental PAM 3 guidelines, including such matters as:
·whether there would be consequential cancellations under s.140.
·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

The correct information
119. The Tribunal had, as its starting point, the applicant’s statutory declaration of 3 February 2018. It provides, relevantly, as follows:
In early 2009, I finished my master’s degree in [Subject 1] and decided not to wait for the UNHCR to help me to resettled in a third country anymore and take a risky way either by using a fake passport that allows its holder to enter Australia or been smuggled from [Country 1] to [Country 4] and then from [Country 4] to Australia by boat.
After I contacted a smuggler in [Country 1], he asked me to wait for a few months and I decided to go to [Country 2] to meet my family and after I arrived to [Country 2] [in] May 2009, I did call my family and asked my old parents to come and see me in [Country 2] where I spent 10 days.
My parents’ health prevented them from travelling and they asked me to meet them in Baghdad, Iraq which is far from my home town of Babylon where I was hidden in my brother’s house for about 35 days just to see my parents. On [Day 1] June 2009 I travelled back to [Country 1]. I flew out of Baghdad airport back to [Country 1].
I arrived in [Country 1] coming back from Iraq on [Day 2] June 2009.
I contacted the smuggler again but he again asked me to wait for a few months. So, I decided to apply for the [Course 1] in [Subject 1] in [University 1] because I was thinking might this smuggler would not send me to Australia and I would waste my time asking for nothing. But after a few months, the smuggler contacted me back and he asked me to prepare myself to travel to [Country 4].
First the smugglers said that they will smuggle me from [Country 1] to [Country 4] by boat but from [Country 4] to Australia they will issue a fake passport so that I could travel by plane and the only thing belong to me on that passport was my photo.
When in [Country 1] before the trip, the people smuggler took my Iraqi G passport as security.
When I arrived to [Country 4] coming from [Country 1] by boat (illegally), the new smugglers in [Country 4] told me that they changed the plan and they will send me by boat to Australia not by using a fake passport which already had been issued but I didn’t see that passport or knew anything about, like what nationality that passport was or any other details and that is exactly what the DIP and mentioned in my case! I was told the details of the passport by the smuggler.
This fake passport with the people smugglers want me to use was never used by me and I never even saw it. I told the UNHCR in [Country 1] and the DIP in Australia that I use my genuine Iraqi passport to travel from Iraq.
…
On May 2012 my family contacted me and told me that my old unhealthy father was very sick and soon going to a heart surgery operation and he wanted me to escort him while in hospital and he wanted to do the surgery in [Country 2].
[In] May 2012, I travelled from Australia to [Country 5] to meet one of my brothers who lives in [Country 6] at the airport in [Country 5], but when I met my brother he told me that I should travel to Iraq and not to [Country 2] because the situation in [Country 2] became worse and my father would have his operation in Iraq and my brother also gave me my Iraqi G passport which I left with the one of the smugglers in [Country 1] and he was from Iraq to and later he sent my Iraqi passport to my brother in [Country 6]. I had given the smuggler my brother’s address and details in [Country 6].

120. When questioned about this narrative at the hearing, the applicant’s evidence contained substantial variations. The narrative itself represents a substantial departure from the version (or versions) of events given by the applicant to the Department. The most obvious of these is his original claim to have lost his Iraqi passport at sea between [Country 1] and [Country 4]. That claim was abandoned only when he was confronted in the NOICC with the implications of his having travelled on his Iraqi passport.
121. As recounted at paragraphs 38 and 39, the applicant’s evidence to the Tribunal was that he gave his passport to the smuggler in [Country 4] immediately before travelling to the boat embarkation location, not in [Country 1] as he claimed in his statutory declaration. He told the Tribunal that he gave his passport to the smuggler on the smuggler’s advice, not as security as he claimed in his statutory declaration. At the time he told the Tribunal he handed it over, there was no security purpose to be served by depositing the passport with the smuggler. His account as to how his brother and the smuggler were to be put in touch with each other in order for the passport to be returned was different from that in his statutory declaration (see paragraphs 41 and 42 above), as to the time and by what means the parties’ contact details were exchanged, and as to the arrangements that were to be made for the return of the passport.
122. The applicant’s evidence as to the circumstances surrounding the return of the G passport was, to my mind, quite unsatisfactory. His evidence as to the payment of US$1000 to the smuggler emerged only in response to my repeated questioning, prompted by its scepticism that a smuggler would part with a valid passport out of altruism. His explanation of the inconsistencies and omissions in his previous evidence was that these were the fault of his representatives, or that he had not previously been asked the specific question. I consider these explanations doubtful when faced with the significant inconsistencies with his 2018 statutory declaration. This was clearly authored by the applicant (see the verbatim extract at paragraph 96, which reflects the applicant’s English language idiosyncrasies displayed at the hearing).
123. Leaving aside the unsatisfactory nature of the applicant’s evidence, the logic behind his claim as to how he came to be separated and reunited with the G passport is difficult to credit. To cancel the passport and have it replaced would have been considerably cheaper and easier than the payment allegedly demanded by the smuggler. His claims as to why he was so reluctant to dispose of it or cancel it – namely that it contained details of his [Country 1] visas – is not at all convincing, given that he was unable to provide a satisfactory explanation as to why he needed that material and why it could not be sourced, if needed, from the [Country 1] government.
124. The evidence given by [Dr A] did not materially assist the applicant. His statement was provided following the first hearing, after aspects of the applicant’s evidence had been called into question. The account he gave of the return of the passport was considerably more elaborate than the applicant’s own evidence to that point. The measures he described also leave no paper trail whatever as to any communications with the people smuggler. His account is inconsistent with his antecedent dealings with the people smuggler described by the applicant. [Dr A] also opined on the inadvisability of Iraqis taking their passports when seeking to travel unlawfully as something known to all Iraqis. This was based on his view that the passport was of little use, which was explained by the suspicion with which they are treated by foreign governments and their concomitant lack of value on the black market. Neither explanation seems obviously applicable to asylum seekers.
125. Considering all of the evidence, the Tribunal considers it more likely than not that the passport was, at all relevant times, either within the control of, or retrievable by, the applicant. It does not consider the applicant’s evidence, or that of [Mr A], to be coherent or reliable as to the location of the passport or the circumstances in which its claimed repossession occurred. No weight can be given to the applicant in respect of this consideration.
The content of the genuine document (if any)
126. This consideration is not relevant to the application.
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
127. The applicant’s incorrect information as to his passport precluded its production to the Department in the course of its determination of his protection visa application. Its production would have alerted the Department as to the applicant’s return travel to Iraq in 2009, and as to his immigration status in [Country 1], which may well have presented a different profile than that described in his refugee status assessment of 4 March 2011. I find that the decision to grant his protection visa was based, in part, on possible inquiries not undertaken because of the provision of incorrect information. I can give no weight to this factor in favour of the application.
The circumstances in which the non-compliance occurred
128. The accounts the applicant gave as to the existence or location of his passport in his visa application are at odds with the evidence he gave to the Tribunal. I consider that evidence itself to be doubtful. No weight can be given to this factor in favour of the applicant.
The present circumstances of the visa holder
129. The applicant has given evidence that he has completed a Certificate III in [Subject 2], a Certificate III in [Subject 3], a Certificate III in Spoken and Written English, and induction courses in [job sector] work. He has worked as a licensed [Occupation 2] and [an Occupation 1], has a licence to drive heavy vehicles, and pays his taxes. He also has ambitions to extend his studies in [Subject 1]. All of these attest to an industrious attitude to his resettlement in Australia, and are to his credit. I give this some weight in favour of the application.

130. The applicant has also provided medical reports, from [Dr D], a psychiatrist. [Dr D] diagnosed a depressive illness and post traumatic stress disorder in 2015. There are also reports from psychologists and general practitioners from 2016 to 2018 that the applicant has been seen for depression. I have had particular regard to a report from [Dr E], a psychiatrist, dated 12 October 2020. [Dr E] reports that the cancellation of the applicant’s visa in 2017 has had an adverse effect on his depression and PTSD. The applicant has been prescribed medication for these conditions. I give this some weight in favour of the application.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
131. The delegate has noted that [the applicant] engaged in the visa cancellation consideration process by providing his comments in response to the non-compliance described in the notice issued under s.107 of the Act. This was given some weight in his favour. Despite my concerns about the veracity of his evidence in several respects, I do not intend to disturb the assessment that some weight should be allowed in favour of the application.
Any other instances of non-compliance by the visa holder known to the Minister
132. There is no suggestion that there are other instances of non-compliance known to the Minister. A small degree of weight is given to this consideration.
The time that has elapsed since the non-compliance
133. Almost 11 years have elapsed since the protection visa application was lodged. There was a delay of some three and a half years from the detection of the applicant travelling on his Iraqi passport until the issue of the NOICC. Four and a half years have elapsed since [the applicant] was notified of the cancellation of the visa.   I give this a degree of weight in his favour.
Any breaches of the law since the non-compliance and the seriousness of those breaches
134. [The applicant] provided a statutory declaration dated 15 January 2021 that he has not committed any breaches of the law in any country since the non-compliance. There is no suggestion to the contrary. This is given a degree of weight in his favour.
Any contributions made by the visa holder to the community
135. I have noted and given weight at paragraph 129 to the fact that [the applicant] has been gainfully employed while in Australia, has attained further qualifications, and has paid his taxes. I have also taken into account letters of support from [Mr F], [Mr and Ms G], [Mr H], [Mr I], and [Mr B], as to [the applicant]’s aspirations and work ethic. I give these some weight in his favour. `
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially
136. [The applicant] has not claimed that there are any dependents in Australia whose visas would be subject to consequential cancellation. No weight can be given to this factor in favour of the application.
Whether there are mandatory legal consequences to a cancellation decision
137. Cancellation of the visa would subject the applicant to s.46(1) of the Migration Act, barring him from making a valid application for a further visa. Further, should the visa be cancelled and he become an unlawful non-citizen, as an Irregular Maritime Arrival, be may be barred from making a valid application for a further visa, including a bridging visa, and he may be detained.
138. Should the visa be cancelled, he may be subject to s.48A(1B) of the Act, barring him making a further application for a protection visa while in the migration zone and therefore unable to make any valid visa application while in Australia, unless the Minister intervenes and lifts the bar.
139. While these are intended consequences of visa cancellations of this nature, they are matters of heavy consequence to the applicant personally and I take them into account as a measure of the gravity of any decision to cancel.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations
140. I have given careful consideration to the issue of Australia’s non-refoulement obligations in the context of this application.
141. At paragraphs 100 to 112 above, I assessed the applicant’s evidence against his claims to fear harm for a Convention reason. I found that it was not appropriate to treat his refugee claims as the provision of false information for the purpose of the cancellation decision. I did however, at paragraphs 102 and 106, indicate that I was not satisfied that his claims of the threats he received in Iraq are credible, or that as a member of the Shia community in southern Iraq, or as a self-described social activist, he would be of interest to the Mahdi Army or its successor organisations. I also do not accept his evidence that his travel to Iraq required the caution he claims or, at least on one of the occasions, was necessarily motivated primarily for compassionate reasons.
142. The evidence suggests that he has extensive familial links and access to support and accommodation should he return.
143. In all of the circumstances, I am not satisfied that there is a real chance, should the applicant return to Iraq, that he would be persecuted for reason of his race, religion, nationality, membership of a particular social group, or political opinion. Similarly, having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Iraq now or in the reasonably foreseeable future.
144. I therefore do not consider that [the applicant]’s return to Iraq would breach any of Australia’s non-refoulement obligations.
Conclusion
145. I am satisfied that the non-compliance in respect of question 30 was serious and tended to compromise the integrity of the refugee assessment process. Taking into account all of the discretionary factors, and having given them weight against cancellation as described above, I have concluded that the greater weight must be given to the non-compliance.
146. 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.
DECISION
147. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
James Lambie
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2022] AATA 1546

3 May 2022

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