1732410 (Refugee)

1732410 (Refugee) [2020] AATA 2110 (27 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1732410
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Christine Cody
DATE:27 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 27 April 2020 at 2:25pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect answers in visa application – return visits to Iraq – validity of the s.107 notice – religion – Sunni – imputed political opinion – pro-Western views – attacks by Islamic extremists – kidnapping – arranging medical assistance for family – non-refoulement obligations – internal relocation – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5, 36, 107, 109, 119
Migration Regulations 1994, r 2.41; Schedule 2
CASES
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW - SUMMARY

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant is a citizen of Iraq and is [age] years old. He arrived in Australia on a Suspected Illegal Entry Vessel (SIEV) [in] April 2012. On 23 July 2012 he lodged an application for a protection Class (XA) (Subclass 866) visa. On 18 December 2012 he was granted a protection visa, as the delegate was satisfied there was a real chance that he would be persecuted and subjected to harm if he was to return to Iraq on account of his claimed adverse profile as a Sunni and “pro-western”.
On 19 October 2016 the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act. On 3 November 2016 the applicant responded to this notice through his registered migration agent.
Consistent with Departmental policy, an International Treaties Obligations Assessment (ITOA) was undertaken and finalised on 24 October 2017.
On 18 December 2017 the applicant’s Subclass 866 (Protection) visa was cancelled by a delegate of the Minister for Immigration under s.109(1) of the Act. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his application for protection. The delegate went on to consider the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 (the Regulations) and other matters relevant to the exercise of discretion. The delegate found that on balance the visa should be cancelled.
The applicant lodged an application for review of this decision with the Tribunal on 20 December 2017. The applicant was represented in relation to the review by his registered migration agent.
The applicant appeared before the Tribunal to give evidence and present arguments on 20 March 2019. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The Tribunal also received oral evidence from his friend in Australia, [Ms A], and his agent attended and provided submissions[1].
[1] The applicant has engaged three separate agents during the cancellation process.
The applicant gave evidence on a number of matters including his and his family’s background and situation in Iraq, the claims he made for protection, his current circumstances and his travel to Iraq since the protection visa was granted.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues for decision
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.
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.
While it is well established that civil concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in administrative decision-making, in cases where the existence of certain facts form the basis of the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision-maker must be satisfied about the existence of the facts before exercising the power.
Under the procedure for cancellation established by s.109, the visa holder is given the opportunity to respond to a notice issued under s.107 and the decision-maker must have regard to this response in deciding whether there has been non-compliance and whether to cancel the visa. However, this opportunity to respond does not change the nature of the decision-making process. The obligation is on the decision-maker to be satisfied there has been non-compliance, not on the former visa holder to establish that the facts or grounds do not exist. The authority for this proposition is Zhao v MIMA, where the Federal Court opined as follows:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut[2].
[2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
While Zhao was concerned with notification of proposed cancellation under s.119, these comments are equally applicable to the present circumstances.
The issues before the Tribunal for determination are the validity of the s.107 notice, whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The relevant law is set out in Annexure A.
Files before the Tribunal
The Tribunal has two Departmental files before it, namely:
·Protection Visa Cancellation file [number].
·Protection Visa file [number].
The Tribunal also has the Tribunal’s file, and has taken into account the evidence received at hearing and submissions received.
Validity of the notice – Did the notice comply with the requirements in s.107?
In the present case, the applicant raised the question as to whether the notice issued by the Minister’s delegate complied with s.107 of the Act. This involves a consideration of the relevant requirements in s.107, including whether the Minister reached the relevant state of mind that the applicant had not complied with one or more of the relevant provisions; whether the notice included particulars of the possible non-compliance; and/or whether the other statutory requirements in s.107 were met.
The contents of the NOICC under s.109 of the Act
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act. Section 101 relevantly provides,
Section 101     Visa 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.
The NOICC noted that the operation of s.99 of the Act meant that the information given on behalf of a person to the Minister, an officer, an authorised system, or a person, the Tribunal, or the immigration assessment authority reviewing the application for a visa, is considered to be information given in the visa application, whether it is orally or in writing or at an interview or otherwise.
The NOICC identified and particularised the non-compliance under the heading of “Evidence of Non-compliance”, part of which is reproduced below.
Information provided by the applicant to the Department in his initial protection visa application
On 23 July 2012, the applicant lodged an "Application for a Protection (Class XA) visa", which incorporated forms 866B and 866C. It also attached a statement dated 22 July 2012. The following information provided by the applicant in those documents has been described as evidence of non-compliance.
In response to several questions listed within Form 866C, the applicant provided the following information:
·Question 42 asks: “l am seeking protection in Australia so that I do not have to go back to (Give name of country or countries)". He answered: "IRAQ".
·Question 43 asks: "Why did you leave that country". He answered: "Pl. see statement."
·Question 44 asks: "Have you experienced harm in that country?" He answered: "Yes. PI see statement."
·Question 45 asks: "What do you fear may happen to you if you go back to that country?" He answered: "Pl. see statement."
·Question 46 asks: "Who do you think may harm/mistreat you if you go back?" He answered: "Pl. see statement."
·Question 47 asks: "Why do you think this will happen to you if you go back?" He answered: "Pl. see statement."
· Question 48 asks: Do you think the authorities of that country can and will protect you if you go back? He answered: "No Pl. see statement."
· At question 67, on 22 July 2012 he signed the declaration which states: "I, [name] ... do solemnly declare: The information I have supplied or caused to be supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail."
In his statement dated 22 July 2012 attached to the Forms, he made the following claims:
·He is a citizen of Iraq; from an Arab ethnic group and a Muslim Sunni. He left the country due to his life being in danger in Iraq and he fears returning to Iraq.
·In Kuwait, he was a Bedouin and had no rights; he was stateless. He left Kuwait in 1990-91 after the war, as a child with his family. He went to Iraq but while there he was always living in fear. He was living in Basra which is Shia-dominated; he felt threatened as a Sunni.
·In 2005 there was a civil war and sectarian violence between Shias and Sunnis. Shias wanted Sunnis to leave. His friends were killed in this violence.
·He used to visit the Sunni mosque of [Town 1] frequently and he participated in activities of the mosque. He married the sister of the mosque’s Imam in 2004. His brother-in -law moved to Basra because of violence and a new Imam took his place. Armed militias killed the new Imam and his younger son. The applicant was abducted by the armed militia upon leaving the mosque because he was Sunni. He had to pay a ransom to be released.
·He received a threat letter in 2008 from the militia accusing him of being Al Wahabi and a supporter of Jews, saying they would kill him if he did not stop his religious activities. Some of the threatened people went to the police, who said they could not help until they identified the perpetrators. He was frightened for his life.
·Before he left Iraq, there were many bomb explosions in Basra and hundreds of people died in the incidents. Armed militias started targeting Sunni Muslims again. People disappeared without information and were killed. He was at risk because he was associated with the mosque. His brother-in-law told him that he was at risk and could be targeted.
·He was told by a friend that the friend’s name and the applicant’s name were on a list of targeted people. His friend advised him to leave. His friend was later arrested.
·The applicant decided to leave the country with the help of smugglers.
·His financial situation was good and he would not have left Iraq if he did not fear for his life.
·He believes that if he returns to Iraq he would be at real risk of physical harm and killed because of his Sunni religion. In Iraq he will face serious physical harm from the militias who are opposed to the Sunnis. They are connected politically with the government and the police. The government is not capable of protecting him and he cannot relocate to other areas of Iraq because of his community ties in his area and he would not be safe anywhere in Iraq.
Basis for grant of Protection (Class XA) (Subclass 866) visa
It was stated in the NOICC that the applicant was subsequently granted a protection visa, Subclass 866-visa, because of the claims submitted in his statement and his application for a protection visa, which incorporated Forms 866B and 866C. Specifically, his protection visa was granted on the basis that he satisfied the Minister that he engaged Australia's protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention) because of his religion as a Sunni and his imputed political opinion, being "pro-western". This claim was fundamental to the determination that he is a person to whom Australia has protection obligations.
Subsequent actions by the applicant
The NOICC stated that Departmental movement records indicate that:
·The applicant departed Australia [in] October 2013 and returned [in] January 2014. Information received by the Department states that he travelled to Iraq during this trip.
·He departed Australia on a second occasion [in] March 2015 and returned [in] May 2015. Information received by the Department states that he again travelled to Iraq.
The applicant’s outgoing and incoming passenger cards were also referred to as follows:
· [In] May 2013 the applicant was issued with an Australian “Titre de Voyage”. [In] October 2013 the applicant departed Australia and his passenger card stated he would spend most of his time in Iraq with an intended stay of three months. The applicant re-entered Australia [in] January 2014 travelling on his Australian “Titre de Voyage”. On his incoming passenger card he did not provide an answer to the question as to which country he had spent most time in abroad. He had spent three months offshore.
· [In] February 2015 the applicant was issued with an Australian “Titre de Voyage”. [In] March 2015 the applicant departed Australia; he re-entered [later in] May 2015. On both outgoing and incoming passenger cards, when asked where he spent most time abroad, he wrote Iraq. He had spent two months offshore.
Specifics of incorrect information provided, based on subsequent actions
The delegate put to the applicant in the NOICC that he had provided incorrect information and had not complied with s.101(b) of the Act, specifically:
·His claim in response to question 43 of the Form 866C [that he left Iraq because he had been abducted by militias, held for ransom and threatened by the militias to stop practicing his Sunni religion and that he had been placed on a targeted list] is incorrect as he has voluntarily chosen to return to Iraq on two occasions for a total of five months with no incident. It therefore appears he was not of any adverse attention to the groups he claimed in his protection visa application.
·His claim in response to question 45 of the Form 866C [that he feared physical harm and being killed by the militia if he goes back to Iraq] is incorrect as he has chosen to return to Iraq on two occasions with no incident.
·His claim in response to question 46 of the Form 866C [he thought the Shia-dominated militia would harm or mistreat him] is incorrect as he has voluntarily returned to Iraq on two occasions without incident.
·His claim in response to question 47 of the Form 866C [he thought he would experience harm and mistreatment in Iraq on account of his known Sunni religion amongst the Shia-dominated militia] is incorrect as his preparedness to voluntarily return to Iraq on two occasions indicates that he did not have the adverse profile with the militias as claimed.
·His claim in response to question 48 of the Form 866C [the authorities in Iraq would not protect him if he went back on account of their lack of willingness to offer state protection] is incorrect as he has now returned voluntarily to Iraq on two occasions without incident.
It was stated that the evidence of subsequent returns indicates that he has been able to engage with the authorities in Iraq and return to Iraq on two occasions and was then able to return to Australia without any apparent impediment. He returned to Iraq of his own volition and was able to enter and depart Iraq without suffering any harm from the Shia-dominated militias. His voluntary travels in and out of Iraq between [October] 2013 and [May] 2015 indicate that he did not hold the adverse profile he claimed in his protection visa application.
The applicant’s submissions on the validity of the s.107 notice
In the agent’s letter to the Tribunal dated 19 March 2019, it was submitted that there is a question as to whether the notice complied with s.107 in two respects: namely, whether the delegate had the necessary state of mind to issue the notice and whether there were sufficient particulars in the notice to fairly inform the applicant of the basis upon which the cancellation is being considered. The submissions referred to material going to both, without necessarily specifying which of the two the material related to. Those submissions are considered below, after a consideration of the applicant’s response to the NOICC.
The applicant’s response to the NOICC
The applicant was represented by an agent when he provided his first response by email to the NOICC on 3 November 2016, in the form of a statutory declaration dated 3 November 2016.
The statutory declaration can be summarised as follows:
·He denied ever giving any incorrect information/false or misleading information to the Department concerning his protection visa application or protection claims.
·When he left Iraq for the purpose of seeking protection, he left behind his wife and [children] in Basra. His wife’s brother, who is also Sunni, was kidnapped after the applicant was granted his protection visa. His wife and children were concerned that they would suffer the same fate. He had to go back to protect them even though he was subject to serious risks himself. He did not return to his previous neighbourhood. His family moved to another address so that they could all keep a low profile.
·He had to quietly approach the Iraqi government officials to get [passports]: for his wife and [children]. Officials are corrupt and slow, but he finally managed to get passports for them.
·At all times he remained inside the house with his family (apart from going to some governmental offices for the purpose of obtaining legal documents) and he avoided going out in public to avoid any negative attention against himself and his family. After he obtained the passports, he was looking into getting them moved to another country, but he could not find any suitable/reliable person to accompany his wife and children outside Iraq. He then returned to Australia immediately.
·He did not have any intention of returning to Iraq after the first trip but his wife suddenly became ill. She was handling [number] children on her own and she was unable to look after the children and herself properly. He had to go back there and look after them. He again kept a low profile and avoided going out except taking his wife and two of his children to the doctors (two of his daughters required [specialist] medical treatments).
·On his first trip back to Iraq he obtained his educational degree. He wanted to further his education in Australia and get a proper job in the future as he doesn’t like relying on social security. He has been in full time employment for the past three months. It is his intention to contribute to Australian society and give something back in return for all the good things he has experienced in Australia.
·Because he is a family man he had to be there for his family. However, he avoided going out to avoid attracting adverse attention by the extremists.
·When he came back to Australia from his second trip, he was asked at the airport if he had any problem/issue leaving Iraq and he said no.
·At all times during his temporary stays in Iraq there were ongoing risks of persecution by the extreme groups but he avoided this risk by being at home at all times. The Iraqi government could not provide effective protection against the continued persecution of Sunnis by the extreme groups/terrorists (but again, he always stayed at home looking after his wife/children and thus he avoided such risks).
·His brother-in-law, after payment of the ransom monies, was released (but the whole deal took more than six months).

Copies of documents in support were provided. It was noted in the email providing an initial response to the NOICC dated 3 November 2016 that a further 28 days was requested so that the applicant could provide “further supporting documents”. A subsequent email dated 24 November 2016 provided a second statutory declaration of the applicant dated 24 November 2016, providing evidence of his wife’s medical condition and other documents in support of this (as referred to in his first statutory declaration), and (undated) submissions referring to Australia’s obligations under various international conventions.
The submissions stated that: the applicant is a married family man with [number] dependents; he advised the Department of this at the time he claimed asylum. He only travelled for compassionate reasons, one off events, twice in a one-year period and at no other time. He risked his life to do so, for his family, who were at risk themselves. In his claims for protection, he did not make a claim against the Iraqi government but claimed the Iraqi government were ineffective or unable to protect him. He did not provide any incorrect information at the time of lodgement of his protection visa application or thereafter.
Prior to the decision to cancel, the agent also provided submissions dated 18 June 2017 (in relation to the ITOA assessment), in which it was stated that: when the applicant returned to Iraq he stayed at a different address when he returned and he did not go back to his neighbourhood. The situation in Iraq became worse after his last return to Iraq and thus he has never returned.
Did the decision-maker reach the necessary state of mind, and did the s.107 notice provide sufficient particulars?
As noted above, the agent’s letter dated 19 March 2019 submitted that the response to both questions was no, and the submissions did not deal with the questions individually, but rather as a whole.
It was submitted that the delegate did not reach the necessary state of mind to consider that the applicant had not complied with one or more of the relevant provisions and reference was made to Zhao as to the necessity of the particulars to allow the applicant a real opportunity to understand and answer the alleged non-compliance allegation. It was also submitted that the particulars of the NOICC did not fairly inform the applicant of the basis upon which the cancellation was being considered.
In support of these submissions it was stated that:
·     The Department had issued two NOICCs to the applicant: the first dated 26 September 2016 was addressed to a different address than the second dated 19 October 2016 (addressed to the applicant at his correct address). It is not specified as to why this means that either or both of the questions should be answered in the negative. The Tribunal notes that the delegate relied upon the second one when cancelling the visa.
·     The Department’s decision record cancelling the visa refers to evidence being “passenger cards at [30] the visa holder failed to complete this section of the card”. In this regard the Tribunal accepts that in the delegate’s decision record, “evidence” which was additional to that listed in the NOICC as evidence of non-compliance. However, the Tribunal notes that incorrect answers/a failure to provide answers in passenger cards is the subject of a separate category for cancellation (s.102: Passenger cards to be correct” and it notes that the delegate did not rely upon s.102 in cancelling the visa). The Tribunal has found, as set out below, that the NOICC which was issued was sufficient to fairly inform the applicant of the basis upon which cancellation was being considered (i.e. s.101(b)) so that he was adequately equipped to provide relevant information and to make submissions.
·     The NOICC effectively expresses a conclusion that the applicant did not hold the claimed adverse profile simply because of his ability to travel back to Iraq on two occasions.
The Tribunal put to the applicant at hearing that it had considered the agent’s arguments on validity, but that it appeared that sufficient particulars had been provided in the NOICC, including that: he had left the country because he felt his life was in danger in Iraq; he had been abducted by militias, held for ransom and threatened by the militias to stop practicing his Sunni religion and had been placed on a targeted list; he feared returning to Iraq; when he was living in Iraq he was always living in fear; his brother-in-law told him that he was at risk and could be targeted; he was told by a friend that his name was on a list of targeted people and was advised to leave; he believes that if he returns to Iraqi he would be at real risk of physical harm and killed because of his Sunni religion; in Iraq he will face serious physical harm from the Shia militias who are opposed to the Sunnis and who are connected politically with the government and the police; the government is not capable of protecting him; he cannot relocate to other areas of Iraq because of his community ties in his area; and he would not be safe anywhere in Iraq. His voluntary travel to Iraq between [October] 2013 and [May] 2015 indicated that he did not hold the adverse profile as claimed. In response, the applicant said that he was not supposed to go but he was obliged to go, even when it was dangerous. The Tribunal notes that it would take into account that response when considering whether or not he had given incorrect information, but that it was considering at this time issues relating to the validity of the NOICC.
The Tribunal is satisfied that the delegate reached the necessary state of mind to issue the NOICC because the delegate expressly states that he has formed the view that there has been non-compliance and there is some basis for his findings. The delegate based the NOICC on concerns about the return of the applicant to Iraq within eight months of the grant of his protection visa when taking into account the claims he made during his protection visa application and described in the NOICC as set out in the above paragraph. The Tribunal accepts that his returns, in the circumstances of his protection visa application, raised valid questions as to whether the applicant had provided incorrect information during the process in relation to which he obtained a protection visa. Accordingly, in the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act.
Having regard to the matters in the two paragraphs above, as well as the applicant’s response to the NOICC, which clearly indicates that he understood the notice and the incorrect information that was being put to him, the Tribunal accepts that there were sufficient particulars of the incorrect information provided by the applicant in his protection visa application. The applicant was informed that his travel on two occasions to and from Iraq, and the five months spent in Iraq, without apparent harm or impediment, indicated that he had given incorrect information in his protection visa application, namely that he held an adverse profile as claimed. The Tribunal is satisfied that the NOICC complied with the requirements of s.107 of the Act by providing sufficient particulars in the notice to fairly inform the applicant of the basis upon which the cancellation was being considered.
The other statutory requirements for the issue of the s.107 notice
The applicant was advised that he could comment on the possible non-compliance and also give a written response as to why his visa should not be cancelled. He was advised he should provide reasons as to why he thought he had complied, or why he had not complied, with s.101(b). The notice set out the time period within which to provide a response, relevant legislative provisions and a summary of the matters to be considered in relation to a protection visa cancellation.
The delegate also invited the applicant to give reasons as to why the visa should not be cancelled, taking into account the matters in r.2.41 of the Regulations, on the basis that, notwithstanding his submissions on non-compliance, the delegate may find that he did not comply with s.101(b) and he should address the relevant discretionary issues.
In the present matter, the Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements and was valid.
Was there non-compliance as described in the s.107 notice?
As noted above, the applicant responded to the NOICC explaining the reasons for, and the circumstances surrounding, his return. He provided some documentation in support to the Department.
The delegate considered the matters before him and found that there had been non-compliance in the way described in the notice under s.101(b). The delegate stated that:
As outlined in Part B of this decision record, it has been ascertained the visa holder provided incorrect information in response to several questions within his application for his Protection class (XA) (subclass 866) visa application lodged on 23 July 2012, in particular to questions 42 to 48 and 67 in part C of Form 866, in which the visa holder claimed he had fear of being persecuted, harmed, mistreated and executed if he returned to Iraq because of his claimed status as a Sunni and his claimed adverse profile with the Shia militia.
The evidence indicates the visa holder did not have a fear of being killed as claimed when he submitted his 866 Form – Application for a Protection (Class XA) visa as he voluntarily returned to Iraq on two separate occasions, for a total of five months without any apparent harm or impediment.
The applicant provided additional information and documents to the Tribunal to substantiate the matters relating to his return, as well as oral and pre and post hearing written submissions from his agent, and he attended a hearing.
A number of submissions were made in this regard in the agent’s letter of 19 March 2019:
·The delegate’s decision record of 18 December 2017 suggested that the delegate had only read the applicant’s statutory declaration dated 3 November 2016: As noted above, this had been sent to the Department with a request for a 28-day extension to provide submissions, and indeed further documentation had been provided to the Department in the second email of 24 November 2016. The correspondence between the Department and the agent at the time and prior to the decision of the delegate to cancel (now provided to the Tribunal) makes it clear that the Department was aware of the email. The current submission is to the effect that it was unlawful for the delegate to consider that there was non-compliance and to cancel the visa because the visa should only be cancelled upon a consideration of the available material and that, in accordance with Zhao, a real state of satisfaction must be reached. The Tribunal accepts that Zhao is the law, and that a decision-maker must take into account all relevant material. In this case, although there is not a reference to the receipt by the delegate of the subsequent submissions and documentation on 24 November 2016, extracts from those submissions are actually quoted in the delegate’s decision record, indicating that the delegate did consider the email and attachments. Even if, however, the delegate did not consider all the material before him when deciding to cancel the visa, this is not a reason for the application for review before the Tribunal to be successful, as the Tribunal itself must consider all the information before it and make its own decision.
·It was then submitted that there was no non-compliance having regard to the submissions made to the Department, the Tribunal and the country evidence provided. In particular:
o   It was submitted that simply by returning to a country at some time in the future from which a person has claimed to have a well-founded fear of persecution does not mean that the grounds for the grant of the visa did not exist at the time or that the applicant provided incorrect information with the application and up to the grant of the visa: while the Tribunal accepts this can be possible in certain circumstances, each case should be determined on its own merits.
o   It was stated, without further explanation, that the DFAT country reports of 2015, 2017 and 2018 support the claims and submissions. It was then submitted that the Tribunal should not accept the delegate’s assertion that the applicant’s return to Iraq means that he provided incorrect information in his protection visa application since it is not clear what the incorrect information is, noting the reasons as provided by the delegate mostly reflect on the situation found in Iraq in October 2013 and March 2015, and not in July 2012 when the protection visa was applied for and assessed: the Tribunal notes that the applicant’s claim to fear persecution was not temporally limited to 2012, and the ‘well-founded fear’ test is one which has regard to the chance of harm in the reasonably foreseeable future. The applicant’s fear of persecution was based in part on his assertion that he was specifically (and generally) a target, and the Tribunal considers that claim to raise a concern as to why he would attempt to return to Iraq, on two occasions, and remain there for a total of five months in 2013 and 2015.
o   Further, it was noted that the applicant successfully engaged with the ITOA process: the Tribunal notes, however, that the ITOA process referred to the period in 2017, not the period in which the applicant claimed asylum and travelled to Iraq (other than to state that the situation for Sunni males from the south had deteriorated since that time) and (as noted below) while accepting the applicant’s religion and place of residence, the ITOA did not accept the claims of specific targeting and threats that the applicant claimed to have been subjected to in Iraq. The Tribunal does not accept that the ITOA in this case is relevant to the question as to whether the applicant provided incorrect information at an earlier point in time when he claimed protection.
·It is submitted that as there has been no non-compliance, the discretionary power does not arise.
A consideration of the submissions and the available evidence indicates that while the applicant did give some correct information in his protection visa application, he also gave incorrect information. The Tribunal’s concerns and reasoning as to what information was correct and what was incorrect, and thus whether there was non-compliance as described in the NOICC, is set out below.
Some background evidence provided to the Tribunal
The applicant told the Tribunal that he moved to Iraq as a young child. His parents were born in Nasiriyah in Iraq as were some of his [siblings]; others were born in Kuwait. The siblings who were born in Nasiriyah were older than him. When the family returned to Iraq from Kuwait they lived in [Town 1], Basra (200 km from Nasiriyah). When he lived in Basra he always lived in his father’s home (the family home). Most of his siblings are in [Town 1] ([specified family members]), some are in Kuwait now, and he still has one [sibling] in Nasiriya. His wife and the children live with his brothers in the family home during school times and with her parents (also in Basra) in the school holidays. His wife has never lived anywhere else apart from his family’s home or her parents’ home; sometimes she visited [relatives] in [another] city (30 minutes away from [Town 1]). She has never lived anywhere else. The Tribunal asked where he lived when he returned to Iraq and he said the first time he lived in his father’s home in [Town 1]; he spent most of his time there (75%) and father-in-law’s home (25%). He stayed one to two nights with friends every week/10 days or so. On the second trip the arrangements were about the same.
The Tribunal’s concerns
Firstly, the Tribunal was concerned with the inconsistency as to where the applicant said he lived when he returned to Iraq. In his statutory declaration in response to the NOICC he said that before his first trip back to Iraq, he knew that there were serious risks and he made arrangements so that he didn’t go to his own neighbourhood. This, however, was inconsistent with his evidence to the Tribunal that he lived 75% of the time at home. When this was put to the applicant, he said that he didn’t go to his own neighbourhood. He then changed his claim that he didn’t go to his own neighbourhood and said that he was hiding, in his home and his wife’s home, and at the home of his wife and wife’s brother. The Tribunal does not find his changing evidence to be satisfactory. Further, his evidence indicates that when he returned to Iraq, within eight months of being granted a protection visa and thereafter, he spent most of his time at his family home with his family, where he had always lived (including when he claimed to have been targeted). The Tribunal considers that his evidence undermines his claims that he was specifically targeted, on a list and threatened before he left Iraq, and that his brother-in-law was kidnapped after the applicant was granted a protection visa and that he went back to protect his family (and they lived elsewhere because of the dangers) .
Secondly, the Tribunal had concerns as to why the applicant claimed he had to personally return to Iraq to obtain the passports for his family members, given the country information.
When asked the reason for his first return to Iraq, he told the Tribunal that it was necessary for the issue of the passports. The Tribunal put to the applicant that there was no country information before it indicating that his family could not have obtained passports without his presence. In response, he said that his brother told him that he had to come back. When the Tribunal asked him to explain why, he had difficulties in doing so. He said there were lots of papers. The Tribunal asked him to be specific and he said that his wife couldn’t do it by herself, and his brother couldn’t do it. He asked many people there and they said he had to do it. His wife is weak and she is illiterate and she can’t go by herself to do it. The situation in Iraq was very dangerous; they said he had to come back.
The Tribunal put to the applicant that country information indicates that passports for minor children can be applied for outside of Iraq[3]. The applicant responded that if he knew about this he wouldn’t go to Iraq. All he knew was that he could not get the children’s passports unless both the father and mother are present; his brothers and friends had told him that because he had asked for their help. The Tribunal put to the applicant that it may not consider that the reasons he returned were urgent and compelling reasons for him to return to Iraq on either of those occasions, given his claimed fears and claimed profile. It may consider that his voluntary returns to Iraq so soon after the grant of a protection visa indicate that he may have provided incorrect information during the process and that he did not have the fears or profile claimed. In response, the applicant said that the suffering is too heavy in Iraq and you can’t gauge it until you live there, and he has nothing else to say.
[3] See Annexure B.
The Tribunal accepts that the situation in Iraq can present many difficulties. It does not, however, find the applicant’s explanations to be persuasive. He did not suggest that he had made any attempts to obtain their passports online from his location in Australia nor that he had researched this himself. The Tribunal accepts the country information, namely that an application for a passport for a minor child in Iraq can be made outside Iraq. If the passport is for a minor child, the guardian must consent to the issue of the passport. However, if the guardian is outside Iraq he can provide his consent from abroad through the Iraqi embassy in the country of residence. The Tribunal is not satisfied that the applicant’s reason for travel and his explanation is consistent with his claimed profile, namely, in particular, that he was a person who had previously been kidnapped as a Sunni, that he was known because his brother-in-law was an Imam at a Sunni mosque and was himself kidnapped at the time the applicant first returned, and that the applicant himself was a target and his name was on a list and he would be located and killed by Shia militias.

Thirdly, the Tribunal did not find the applicant’s responses persuasive when asked why, given the claimed significant dangers in Iraq, he did not organise passports for his wife and children at the same time he organised his own passport (to leave Iraq). Although he was given a number of opportunities to explain this, the Tribunal was not satisfied that his answers were responsive:
· Initially, his response was that he was very scared because he was the target. The Tribunal repeated that if the situation was dangerous, it does not make sense as to why he would not obtain a passport for his family members at the same time as he obtained his own passport. He then said that he didn’t know where he wanted to go, he just wanted to flee the country. He then said that he wanted to get his family later. He told them that he was protecting himself.
· The Tribunal put to him that according to his claims, he was always living in fear, the whole time that he lived in Iraq. His wife’s brother had had to leave the [Town 1] mosque because of sectarian violence. The applicant had already been targeted, he had seen his friends arrested and killed. It suggested that his wife and [children] would also have been at risk and he had had plenty of time to organise for passports for his wife and children and it didn’t understand why he didn’t organise their passports, especially as he was organising his own. He responded after the fall of Saddam Hussein [2003] the danger started and in 2005 his friend was killed, and he received the threat. He was not thinking of leaving Iraq at all until he faced the direct threat of being killed [2008] and they started to collect his friends in these black days. At the end of 2011/ start of 2012, they started to take his friends and they told him that his name was on the list. His only thinking was to get out of there, and he was not concentrating.
The Tribunal considers that on his own evidence, Iraq was dangerous for many years. It considers that his claimed circumstances had meant that he, and those around him, were at risk for years. If the circumstances including his profile were as claimed and he was being specifically targeted for assassination at that time, it is reasonable to expect that he would have also at least considered obtaining passports for his family while obtaining his own. The Tribunal considers that his evidence undermines his claims.
Fourthly, the Tribunal put to the applicant that in his initial protection visa application he claimed that the Shia militia who had targeted him and put his name on a list, were connected politically with the government and the police; if this was the case, it did not make sense for him to return which would involve contact with the authorities. In response, the applicant said they are not connected to such a high degree; the Tribunal noted, however, that this was inconsistent with his protection visa claims that such connections meant that he would not be safe anywhere in Iraq. In response the applicant said that these militias are horrible, and they were scary and they have authority and it is terrifying to leave the house. The Tribunal considers that the applicant’s sworn statutory declaration in support of his protection visa claims of the specificity of his targeting, and that he would not be safe anywhere in Iraq, is inconsistent with his return to Iraq just over one year after swearing that declaration to be true. The Tribunal considers that this undermines his claim that he was a specific target of the militia when he left Iraq.
Fifthly, the Tribunal considered that the applicant’s explanation as to why he stayed in Iraq after obtaining the passports during the first visit was also inconsistent with his claimed profile. In this regard, the passports were issued on [a date in] 2013, yet the applicant only returned to Australia [in] January 2014. The Tribunal put to him that he remained in Iraq, a place of grave danger to himself, for two months after the passports were issued. The applicant said that he was obtaining his qualification document which was issued [in] January 2014. The Tribunal said that it was difficult to understand why he would risk his life in Iraq for a further two months to obtain his degree. The applicant responded that his qualification was very important for his wife and himself. The applicant said, however, that he has not used his degree. While the Tribunal accepts that he obtained his graduation certificate [in] January 2014 for a [specified degree], the Tribunal is not satisfied that this was a reason to prolong his stay in Iraq if his profile was as claimed. In this regard the applicant told the Tribunal that when he translated his credentials once back in Australia, he was told that he would have to start all over again. He went to [a college] and then [another college] and then to [named university], where he was told that he would have to study a further two to four years. The Tribunal put to him that the document appears to have been of no assistance to him and he agreed. The Tribunal put to him that it did not make sense that he would not find this out before he went to Iraq. He responded that he thought it would help him. The Tribunal is not satisfied that the applicant would not make enquires first about the relevance of his degree in Australia (considering his claim that it is so important) before risking his life by staying in Iraq for a further two months after he obtained the passports for his family members. The Tribunal considers that this undermines his claimed profile.
Sixthly, the applicant told the Tribunal that he made the decision about one week prior to travelling to Iraq on the first occasion (October 2013) that he would go. Before that he had been asking about the situation and he had been told it was too dangerous and he should not go back. The Tribunal put to the applicant that given the country information at that time, it was difficult to understand that he decided to return in October 2013. The Tribunal noted in this regard that the DFAT report of 29 November 2013 stated that there had been execution-style killings of over 100 young, mainly Sunni males during the second half of 2013. DFAT assessed as credible open source reports of such targeted assassinations at the hands of Shia armed opposition groups. The killings reflect previous patterns of behaviour by Shia armed opposition groups whereby letters warning Sunni residents to leave or be killed were distributed prior to the kidnaps and murders. In addition, September 2013 saw mass casualties at several Sunni mosques, including in Samarra on 13 September and Baghdad on 20 September[4].
[4] DFAT report 2013, paragraph 3.24.
The Tribunal put to the applicant that given he had previously experienced receipt of such a letter and kidnapping, the circumstances in the country at that time indicate that it would have been too dangerous for a person with his claimed profile (a specific target of the Shia militia) to return. In response, the applicant said that he couldn’t remain anymore without his children and family and he wanted to take them out of the danger. The Tribunal put to him that this was difficult to accept given that he left them there after three months. He responded that he left in order to improve his situation because they were safer if he was not there. The Tribunal does not consider the applicant’s explanations to be persuasive. It considers that he would not have been told prior to October 2013 not to go to Iraq, and then told it was safe to go to Iraq, in the middle of ongoing targeted assassinations of Sunnis by Shia militias, if he was already a specific target of Shia militias. The Tribunal considers that this undermines his claimed profile.
Seventhly, the applicant provided inconsistent evidence as to what he did once he obtained the passports for his wife and children. In his statutory declaration of 3 November 2016 in response to the NOICC, he stated that “after obtained passports for my wife and my [children], I was looking into getting them to move to another country (this also took its time) but I finally did not succeed to find any suitable/reliable person to accompany my wife and my children outside Iraq. I then returned to Australia immediately.”
His evidence to the Tribunal, however, was different. In response to the Tribunal asking why, once he had obtained their passports, did he not organise for them to leave Iraq, he said because he didn’t think of it, and when they are with family they are safer, and if he took them outside of Iraq, where should he have taken them? The Tribunal sought confirmation that he did not think to take them out of Iraq when he was there and had obtained their passports on his first visit, and he said that his thought was to complete their papers and then he would return to Australia and organise their visas from Australia and then get someone to take them to Jordan and he would go and collect them from Jordan. The Tribunal put to the applicant that he had given inconsistent evidence as to why he stayed longer in Iraq (he was looking to try to get them out of the country), however he did not offer an explanation for this, other than to repeat his evidence to the Tribunal that he was going to start the process when he went back to Australia and there was no point to taking them out of Iraq. The Tribunal considers that if his profile was as claimed, then his wife and children could have been in real danger and it is likely that he would have tried to get them out of the country with their newly obtained passports as he claimed he sought to do in his written material. His denial of this to the Tribunal undermines his claimed profile and his credibility.
Eighthly, the Tribunal was also concerned that the applicant’s travel back to Iraq in 2015 was inconsistent with his claimed profile. In this regard, the Tribunal put to the applicant that the DFAT report from 13 February 2015 referred to Shia militias undertaking an increasing number of attacks against Sunni religious structures and institutions in 2013 and 2014. Young Sunni males were frequently kidnapped, tortured and murdered. The Tribunal noted that this was the security situation before he went back to Iraq the second time. The Tribunal put to the applicant that it was difficult to accept that he would return in such circumstances if his name was on a list as a Shia militia target.
Further, when the Tribunal asked the applicant to describe his wife’s deteriorating medical condition which caused him to return to Iraq on that second trip, he had difficulty in describing exactly what had happened to her. When asked by the Tribunal to explain what the change in her condition was which led him to returning, his evidence was vague; he said: the ailments, the [medical condition] has come back to her and she didn’t understand their terminology. The Tribunal noted it was his evidence that he had visited the doctor with her, yet he has not been able to explain with any precision the reason why he had to return for a second time. The applicant agreed. Similarly, he said that he also went back because his daughters had problems [specified]. When the Tribunal asked, however, what [their problem] was, he said weakness. When the Tribunal asked what the [specialist] recommended, he said he did not really know but there was a program for the girls to come back three to four times.
The Tribunal is prepared to accept that his wife and daughters did have some [medical] conditions, but it is not prepared to accept that their conditions were particularly serious, given the applicant’s inability to give detailed information about their conditions (and noting that he claims to be a university-educated man). The Tribunal is prepared to accept that it must have been difficult for his wife to look after the [children], and that the applicant was concerned about his family. It considers however that his return to Iraq in these circumstances is inconsistent with his claimed particular profile of being a targeted Sunni male.
In conclusion, the Tribunal is prepared to accept that that the evidence before it supports the following: that the applicant is a Sunni Muslim of Arab ethnicity who was born in Kuwait and then moved as a child to Iraq with his family, that he lived in [Town 1], Basra while he was in Iraq, and he married his Sunni wife (whose brother was the Imam of the mosque in [Town 1] and then moved to Basra) and they had [number] children. The Tribunal notes that the initial consideration by the delegate who granted his protection visa application states that the applicant’s testimony was coherent, consistent and detailed. The Tribunal accepts some of that evidence, as set out above and as follows: it accepts the applicant’s consistent evidence that he was kidnapped in 2005 and held for ransom by Shia militia and that he was released upon payment of the ransom. It accepts that he was an English teacher between 2010 and 2012, that he worked [in a different role] for a [foreign] company in 2011[5], that he was seen as connected to the Sunni mosque, and that he received threatening notes under his door accusing him of being Al Wahabi and a supporter of Jews. It accepts that at the time he left Iraq, sectarian tensions had been reignited in Basra (in December 2011 there were bombings during the Ashura commemoration in Basra and scores of Shia pilgrims were killed, which reignited the sectarian violence in the south of Iraq and Shia started targeting Sunni again).
[5] Protection visa application form.
For the reasons set out above, the Tribunal does not accept, however, that the applicant at that time was subjected to specific adverse attention or targeting in Iraq nor that his name was on a list. It follows that the applicant’s claims at the time of his protection visa application, to the effect that he was the subject of specific adverse attention including threats and for this reason he would be at real risk of physical harm and killed by these militia who are opposed to the Sunnis and who are connected politically with the government and the police and that he could not be safe anywhere in Iraq, were incorrect information. The Tribunal does accept that the applicant would have held a fear of serious harm at that time as a Sunni and as an English teacher. His protection visa claims, however, went further than this.
Concerning the first return to Iraq, the Tribunal does not accept that the applicant’s brother-in-law was kidnapped and that he went back to protect his wife and children as claimed in response to the NOICC. This is because, when asked by the Tribunal why he went back on that first occasion, he did not mention that his brother-in-law had been kidnapped; he said that the only reason for going back was to get passports for his wife and children. Secondly, his claim in response to the NOICC was that he had to go back to protect his wife and children (in case they were kidnapped) however, he only remained three months and left them where they were (he did not suggest that the threat of kidnap had disappeared). Thirdly, he also claimed that because of the kidnapping of his brother-in-law and the consequent threat posed to his wife and children, and the threat to himself, he moved to a different neighbourhood, as did his family so that they could keep a low profile; this, however, was inconsistent with his evidence to the Tribunal about where he lived when he went back, which undermined those claims.
The Tribunal accepts that during this trip the applicant did obtain passports for his wife and children: he attached to his initial Response to NOICC copies of the identity pages of the passports, which showed that they were issued on [a date in] 2013. The applicant also attached to his initial Response to NOICC a copy of his Graduation Certificate dated [in] January 2014 (according to a handwritten date), certifying that he was awarded a [specified degree] on [a date in] October 2008 (having failed and repeated three out of the four years and passed one year only at first go). He had commenced his degree in [year]. The Tribunal considers that the applicant wanted to see his family and decided to organise their passports, and decided to obtain a copy of his degree at the same time; it does not accept that he believed that he could not have obtained the passports from Australia (nor that he believed that he had no choice but to return to Iraq to obtain his degree).
Concerning the second return to Iraq, the applicant attached to his initial response to NOICC evidence of attendance for [specialist] treatments for the children [named] [in] April 2015 at [a named health] Centre. The medical evidence for his wife was a letter dated [November] 2016 stating that his wife consulted a doctor in his clinic [in] February 2015 with symptoms [specified] and was treated accordingly. The letter stated that his wife needed rest for three months from her home tasks and not to lift heavy things. The Tribunal accepts that the applicant wanted to see his family, that his wife had a significant load of looking after [children] in the absence of their father in times of great insecurity, and that they had some [medical] issues.
For the reasons set out above, the Tribunal has not accepted that the applicant would have returned to Iraq twice if he had his claimed profile. The basis on which the applicant's visa has been cancelled arises from the circumstances of his return trips to Iraq after he was granted protection and in the context of the claims he made for protection. The Tribunal accepts that not every return to a country of claimed persecution leads to a conclusion that an applicant has provided incorrect information in their application for protection. The mere fact of return does not necessarily indicate that an applicant did not have a well-founded fear of persecution at the time he or she made their application or that statements made, or questions answered were incorrect.
However, in this matter the Tribunal considers an inference may be properly drawn that the applicant provided incorrect information in the way described in the NOICC.
On the basis of the above, the Tribunal is satisfied that the applicant gave incorrect answers to questions 43-48 in his application for a protection visa when he claimed to have been a specific target of Shia militia and that his name was on a list. The Tribunal is positively satisfied that there was non-compliance in the way described in the s.107 notice.
For the reasons set out above, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
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.

While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual, PAM3, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information: The applicant and his agent have maintained that he provided correct information. As discussed above, the Tribunal is prepared to accept that the applicant did provide a significant amount of correct information in his claims. The Tribunal has found that the correct information is that described in paragraphs 71-72 above.
The content of the genuine document (if any): This prescribed matter is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 (relating to bogus documents).
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 applicant's claims for protection were based on his fear of returning to Iraq where he claimed he feared he would be not be safe anywhere in Iraq or protected by the authorities in Iraq and would be killed by Shia militias because of his profile, part of which the Tribunal has accepted (Sunni, male, fighting age, married to an Imam of a Sunni mosque, living in [Town 1], Basra, having previously been kidnapped and experiencing violence and witnessing death and destruction in previous sectarian uprisings/ incidents). The Tribunal also accepts that at the time the decision was made, this aspect of the applicant’s profile contributed significantly to the grant of the visa in the context of the violence in Iraq. However, it is also clear that that aspect of the applicant’s profile that the Tribunal has not accepted (that he was personally targeted or that his name was on a list complied by Shia militias and that he faced imminent harm or death for that reason) was also a significant part of the reason to grant him a visa. The Tribunal considers that although most of what he has claimed was correct, the incorrect information nevertheless does weigh in favour of cancellation.
The circumstances in which the non-compliance occurred: The circumstances in which the incorrect information was given were that the applicant was pursuing a protection visa application at a time when, because of his actual profile (found by this Tribunal) it is more than likely that he would have been granted a protection visa in any event, even without his claim that he was specifically targeted. In this regard, the Tribunal notes that there was another profile claimed by the applicant in his protection visa application which was not pursued by the delegate. The delegate’s decision record notes that the applicant is an English teacher and that UNHCR lists this as a risk profile in their May 2012 guidelines. The delegate considered this information in the context of the harm that the applicant feared from the militias and was satisfied that this contributed further to his imputed political opinion, being pro-western. The delegate considered that it was not necessary to make a finding under this claim as he had already been found to face persecution on the grounds of religion. The Tribunal considers that at the time the applicant applied for protection, his circumstances, even without the incorrect information (including the profile accepted by this Tribunal and that he was an English teacher which, if known, would give him a pro-western profile) indicate that he did have a genuine well-founded fear of persecution. In the circumstances, the Tribunal gives this positive weight in the applicant’s favour against cancellation.
The subsequent behaviour of the applicant concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: This subdivision deals with the obligation to give correct information when making an application for a visa and subsequent cancellation when it is decided that incorrect information was given. The applicant has consistently maintained that he did not provide incorrect information in his application for protection. The Tribunal does not accept this, and has found that he added an element to his profile (that he was a specific target) which was incorrect, although it has accepted that his profile as it was would probably have been sufficient for him to be granted a protection visa without that added element. Further, the applicant did not come forward himself to correct the incorrect information and to date maintains his position that it is not incorrect. The Tribunal gives this weight in favour of cancellation.
Any other instances of non-compliance by the visa holder known to the Minister: The Tribunal notes that in the delegate’s decision record cancelling the visa it was not suggested that there was any such further instances of non-compliance known to the Minister. The Tribunal gives this positive weight in the applicant’s favour against cancellation.
The present circumstances of the visa holder considered with the time that has elapsed since the non-compliance: The Tribunal notes that it is now almost eight years since the non-compliance (July 2012). After considering all the evidence before it, the Tribunal accepts that he has been in limbo in his time in Australia as it has been his sole aim to apply for family reunion and to bring his family to safety. This aim has been placed on hold due to his non-compliance.
The Tribunal initially had concerns during the hearing as to whether the applicant had a wife and [number] children who he was missing intently and who were in a risky situation in Iraq whom he wanted to bring to Australia. This was because he had been granted a Subclass 866 visa, which means that he could have applied to sponsor his family members to come to Australia (family reunion) but he did not do so. His explanation was that he had sought advice and had been told that it was quicker to achieve family reunion once you are a citizen, so he was waiting to become a citizen in order to apply to sponsor his family. This understanding was supported by the independent evidence from his witness.
The Tribunal accepts that it was his belief, based on advice he received, that the process would be quicker if he applied to sponsor his family after he was granted citizenship and that he was waiting to do so, and then this intention was derailed when his permanent visa was cancelled. The Tribunal accepts that the applicant has a wife and [number] young children whom he misses and about whom he is very worried because they remain in Iraq and he is in Australia. The Tribunal accepts that he went to visit his wife and children because of his sense of responsibility towards them and in doing so he did place himself at risk because of his actual profile. It accepts that as he claims, he spent most of the time with family at home because of that risk. The Tribunal accepts that he has not seen his family now for five years and that he has been living in a different country to them for eight years. The applicant told the Tribunal that his mental health is deteriorating, he is tired and he misses his wife and children very much. He is living alone and is unhappy without them. The witness [Ms A] said that he has a lot of nightmares and he gets distressed when something happens in Iraq because his family are still there. The Tribunal accepts that a significant period of time has passed since the non-compliance, which has taken a toll on the applicant and his family emotionally; it gives this factor some positive weight in favour of not cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches: the Department did not provide any indication of any breaches of the law, and the applicant confirmed this. The Tribunal gives this some positive weight in the applicant’s favour.
Any contribution made by the holder to the community: it was submitted that the applicant had tried his best to be helpful to the Australian society and that he had assisted others, including in the refugee camp, because he had a knowledge of English. He had tried unsuccessfully to use his degree from Iraq to get a teaching job. He had been receiving Centrelink until about early 2015 when he was working, and in about mid 2016 he had started a full-time job as [an occupation 1]. The witness [Ms A] said she has known him for five years, and they are very good friends; she said he is kind and genuine and very loyal and honest. He works hard, he tries to fit in to the community and he fits in very well, and his English is getting a lot better. In his spare time, he cooks, goes to the mosque, sees his friends, and he struggles without his family here. The Tribunal gives this factor some positive weight.
Policy considerations
In addition to the requisite prescribed matters, the Tribunal considers it proper to have regard to suggested considerations under the policy, including whether there are mandatory legal consequences to a cancellation decision, whether there are persons in Australia whose visas would, or may, be cancelled consequentially, whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, and the degree of hardship that may be caused to the visa holder and any family members and other relevant matters. Only some of those are relevant to this matter.
The Tribunal considers that a consequence of cancellation would result in the applicant being unlawfully present and subject to detention and then being forced to leave Australia.
Non-refoulement obligations: The Tribunal notes that non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the Refugees Convention, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
“Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
The Tribunal accepts that the applicant may be prevented from applying for or being granted a protection visa because of the s.48A bar. Accordingly, the Tribunal considers the visa cancellation would lead to the applicant being removed from Australia, and has proceeded to consider whether this would breach Australia’s international non-refoulement obligations.
The Tribunal notes that in considering whether or not to cancel the visa, the Department carried out an ITOA dated 24 October 2017. This stated that an assessment was being undertaken under the Refugees Convention, the CAT, the ICCPR and its second optional protocol aiming at the abolition of the death penalty. For the purpose of the assessment, it was accepted that the applicant’s identity is as claimed. It was accepted that Australia does have non-refoulement obligations towards the applicant for the following reasons:
·The concerns of the delegate in the NOICC and the responses provided on 3 November and 24 November 2016 were considered and it was accepted that the applicant had returned to Basra twice since the grant of his protection visa but that he still feared harm there because of his religion.
·That it accepted that the applicant is a Sunni Muslim and that he was a resident of Basra. It was considered that the applicant’s public activity in applying for and obtaining Iraqi passports for his family and a copy of his own graduation certificate on his first visit undermines the credibility of his claims to have kept a low profile whilst in Basra in order to avoid adverse attention from Shia militia. It was not accepted that his circumstances were as claimed in his protection visa application (that he had been kidnapped and then threatened by Shia militias). It was also noted that country information from the Passport Affairs Directorate website of the Iraqi Ministry of interior stated that a guardian who is outside of Iraq could approve the issuance of passports to minor children who were inside Iraq, and thus it was not necessary for him to return to Iraq in order to obtain passports for his children. It was accepted that he returned on the second occasion to look after his children and to care for his wife while she was incapacitated.
·That despite earlier reports suggesting that Sunnis could return to southern Iraq, significant weight was given to the recent DFAT report indicating that conditions for Sunnis had deteriorated in Iraq, particularly in non-Sunni dominant areas like southern Iraq, and that state protection for minorities like Sunnis in southern Iraq is limited. Although the two trips to Iraq for a total of five months, in 2013-2014 and 2015, without apparent incident, might indicate that the applicant did not fear harm in Basra at that time, the evidence indicates that the situation for Sunnis in southern Iraq has deteriorated in the intervening years. It was also noted that as he is [an age]-year-old Sunni male, thus of fighting age, he would be at increased risk of being imputed with Islamic State sympathies if he came into contact with Iraqi Security Forces or Popular Mobilisation Units (composed primarily of Shia militia, especially in the South) for example at a checkpoint. DFAT reports that outside of ISIS-controlled areas, Sunnis have claimed that they face harassment and discrimination, including through undergoing more intrusive inspections at checkpoints. In summary, it was considered that the applicant’s profile is a Sunni Muslim of fighting age in an environment of heightened violent lawlessness in Basra perpetrated by Shia-dominated tribes and that the applicant would face a real risk of suffering significant harm were he to return to southern Iraq, particularly Basra.
·When considering relocation, the delegate referred to the DFAT report of June 2017 noting that DFAT assesses as credible claims that, in most cases, internal relocation for minorities is not a reasonable option. Having regard to country information, the delegate was not satisfied that the applicant could safely relocate to central or northern Iraq.
·It was considered that Australia owes non-refoulement obligations under the CAT and ICCPR to the applicant.
The submissions from the agent in relation to Australia’s international obligations towards the applicant relevant to the ITOA assessment stated that the situation in Iraq and the risks of persecution due to religious/ethnic conflicts are a daily reality and ongoing concern for the applicant. The situation in Iraq became worse after his last return to Iraq and thus he has never returned again. Iraq is facing ongoing sectarian/religious conflicts and the risk of being persecuted by extremists remains a high probability. The cancellation of his visa and removal of the applicant from Australia would breach Australia’s non-refoulement obligations and would lead to him being arbitrarily deprived of his life or subjected to serious harm.
The ITOA dated 24 October 2017 stated that a cancellation would not necessarily lead to the applicant being removed from Australia as a further ITOA would be carried out before a decision was made to remove the applicant from Australia.

100. The Tribunal has considered country information in light of the applicant’s profile. The applicant would return as a Sunni to an area of Iraq in which Shi’a are in the majority. In its most recent report (9 October 2018), DFAT states:
DFAT assesses that individuals face a low risk of official discrimination on the basis of their ethnicity, but that individuals may face a moderate risk of societal discrimination if they live in an area where their ethnicity is in the minority.
…
After the removal of Saddam Hussein and the (Sunni-dominated) Ba’ath Party from government, many Sunnis felt marginalised. This was exacerbated by the perception among the majority Shi’a population that the Sunni community was associated with ISIL, and by the government’s inability to assist Sunnis attempting to flee ISIL. While the government has worked hard to protect civilians in the fight against ISIL, it has at times failed to respond firmly to acts of retribution against Sunnis by the Iraqi Security Forces (ISF) or the PMF. These factors have intensified tensions between Sunni and Shi’a communities in Iraq.
Sunnis, including IDPs, continue to report that PMF groups harass them, accuse them of supporting ISIL and physically harm them. Sunnis report similar behaviour towards them, although to a lesser extent, by the ISF in some areas. The US State Department and international human rights groups report government-aligned forces targeting Sunni males trying to flee ISIL-controlled areas, and preventing Sunnis from leaving and entering government-controlled areas. PMF-linked militia groups have looted and destroyed Sunni-owned properties following the expulsion of ISIL and, in some areas, prevented displaced Sunnis from returning to their homes. Outside ISIL controlled areas, Sunnis have faced harassment and discrimination in the form of more intrusive inspections at checkpoints, and the provision of poorer quality services in Sunni areas.
DFAT assesses that, outside areas recently controlled by ISIL, Sunnis face a low risk of societal violence on the basis of their religion. DFAT assesses that Sunnis face a moderate risk of official and societal discrimination in areas where they are a minority. The risk of discrimination varies according to an individual’s local influence and
connections.

101. The Tribunal acknowledges that there may have been some improvement since the defeat of ISIL in 2017, however the country information indicates the conflict with ISIL has had a significant impact in terms of sectarian tensions, and with DFAT’s assessment in 2018 that Sunnis continue to report harassment from the Popular Mobilisation Forces (PMF) and to a lesser extent the ISF, indicating that the conflict is likely to continue to have an impact in the foreseeable future. The Tribunal accepts DFAT’s assessment as at 2018 that Sunnis face a moderate risk of official and societal discrimination in areas where they are a minority and that the risk of discrimination varies according to an individual’s local influence and connection.
102. Concerning the current time, and the reasonably foreseeable future, the Tribunal has considered the applicant’s evidence that Iraq is dangerous, it is collapsing, Sunnis are destroyed whether they are in the north or south, whether they are at the level of politician or lay person and as a Sunni anyone can accuse you of any crime, any accusation is acceptable to the government and even if you were killed there, no one would object because as a Sunni there is justification to kill you. The May 2019 UNHCR report stated that according to 2018 survey findings, many civilians in Basra had experienced violence in the previous year, and a majority, particularly women, considered themselves as “likely” or “somewhat likely” to become victims of violence in the near future. In 2018, protests over corruption, government neglect, unemployment and poor services, erupted in Basra and in other southern cities, with some protests turning violent and leading to deaths and injuries among protesters and security forces. The situation is reported to have calmed down following the reinforcement of local security and the imposition of a curfew. Protest organisers also reported that they decided to suspend further protests after receiving death threats from militias. Several protest leaders and activists were reportedly assassinated in September and October 2018. [At the time of writing] protests continue, with occasional violence reported. ISIS is reported to lack operational space and support in the predominantly Shi’ite South, but has in the past years occasionally launched, or attempted to launch, mass casualty attacks, particularly during religious celebrations.[6]

[6] UN High Commissioner for Refugees (UNHCR), International Protection Considerations with Regard to People Fleeing the Republic of Iraq, May 2019, HCR/PC/IRQ/2019/05_Rev.1, available at: 15 April 2020].
103. A November 2018 article from the Brookings Doha Centre on Sectarianism Governance and Iraq’s Future noted that centralised authority continues to create power imbalances in favour of Iraq’s Shi’ite elites, meaning Iraq could be engulfed in perpetual warfare unless there is buy-in from Iraq’s Arab Sunni communities[7]. There is no evidence before the Tribunal that this has changed. The Tribunal considers that the tensions in Basra are currently dominated by protests: in October 2019 a Financial Times article noted that major protests took place mainly in the southern city of Basra in September last year, nearly 30 people were killed, and many Iraqis believe powerful paramilitary groups backed by Iran were behind violent crackdowns in Basra last year; turnout for protests since then has been small. It was noted that if tribal or factional armed groups get involved, the situation could deteriorate. Gunfights broke out in southern cities this week between unidentified gunmen and police. The article notes that the protests are not currently sectarian: these protests are about worsening economic and living conditions and are taking place mostly in Baghdad and the Shi’ite Muslim-dominated south, and cut across ethnic and sectarian lines, as anger is directed at a political class, not a sect. It is noted, however, that the government may struggle to control them[8].
[7] Sectarianism, Governance, and Iraq's Future, Ranj Alaaldi, November 2018.
[8] Since that time, Human Rights Watch reported that in early 2020, protests continue in Basra and Iraqi authorities ramped up violent tactics to quash ongoing protests across Baghdad and southern Iraq between January 25 and 27 2020[9].
[9] The Tribunal accepts that after the defeat of ISIL, both sectarian tensions and violence have persisted in Iraq, and that Sunnis continue to face a degree of harassment and discrimination, in particular in Shia-dominated areas (such as Basra). It also accepts that in Basra, Shia militia have been behind powerful crackdowns.
106. The Tribunal considers that if the applicant returns to Iraq, he may face a small but real chance of serious harm or a real risk of significant harm on the basis of his accepted profile.
107. The Tribunal has thus considered the situation for the applicant elsewhere in the country. The 2018 DFAT report notes that local sources say that returning to Iraq can be difficult, particularly if the individual does not return to their original community. Integration within new communities is difficult, and complicated by the influence of patronage and nepotism on many aspects of life. The UNHCR May 2019 guidance states: UNHCR considers that a proposed internal flight alternative (IFA)/internal relocation alternative (IRA) is reasonable only where the individual has access to (i) shelter, (ii) essential services such as sanitation, health care and education; and (iii) livelihood opportunities or proven and sustainable support to enable access to an adequate standard of living. Moreover, UNHCR considers that an IFA/IRA is reasonable only where the individual has access to a support network of members of his or her family, extended family or tribe in the area of prospective relocation, who have been assessed to be willing and able to provide genuine support to the applicant in practice. In light of the difficult economic and humanitarian conditions in many parts of the country, especially in areas hosting large numbers of IDPs or returnees, (extended) family or tribal members who are themselves in a situation of internal displacement, particularly those living in camps or informal settlements, or who are still in the process of re-establishing their lives following return from displacement, would generally not be considered as being able to support the individual. In relation to Baghdad city, UNHCR considers that the only exception to the requirement of external support are Arab Shi’ite and Arab Sunni single able-bodied men and married couples of working age without children and without identified specific vulnerabilities as described above. Depending on the individual circumstances (see above, “The Applicant’s Personal Circumstances”), such persons may be able to subsist without family and/or tribal support in Baghdad city. In relation to urban areas of southern Iraq, UNHCR considers that the only exception to the requirement of external support are single able-bodied men and married couples of working age without children and without identified specific vulnerabilities as described above and who are Shi’ite Arabs. Depending on the individual circumstances (see above, “The Applicant’s Personal Circumstances”), such persons may be able to subsist without family and/or tribal support in urban areas of southern Iraq that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life. In all cases, the applicant must be given an adequate opportunity to respond to the purported reasonableness of proposed IFA/IRA.
108. The Tribunal accepts that the applicant would not be alone, but with a wife and [number of children]. The Tribunal notes that some of his family reside in Nasiryiah, Dhi Qar, however, the Tribunal accepts that the applicant has not resided there except briefly as a child upon return from Kuwait, and it notes that Nasiriyah remains a place of sectarian/political/economic/ tribal tension and violence[10]. Having regard to the country information referred to in this decision concerning places other than Basra, the Tribunal is satisfied that that the applicant faces a small but real chance of persecution in all areas of the country and that effective protection measures are not available to the applicant. It also accepts that it is not reasonable for the applicant and his family to relocate nor that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm.
[10] The Tribunal considers these obligations as a significant matter against cancellation.
110. There are no consequent cancellations or Australian children to consider, although as another relevant matter the Tribunal accepts that a consequence of cancelling the visa would be that the applicant would lose his ability to sponsor his wife and [children] who have been waiting for many years to join the applicant in Australia. The Tribunal accepts that this leaves the wife and [children] who are Sunnis living as minorities in Basra, in a situation of violence, and that they will lose the ability to apply to come to Australia. While it accepts that if cancelled the applicant would be joining them in Iraq, it considers that the conditions for the applicant and his family of [weigh] against the cancellation of his visa.
111. Having carefully considered all of the above, the Tribunal considers the factors supporting not cancelling the visa outweigh the factors that support cancelling it. Factors weighing in support of cancellation are that his family members remain in Iraq and therefore cancelling the visa supports an earlier family reunion, and that he did not come forward himself to correct the incorrect information and to date maintains his position that it is not incorrect. In its assessment, the Tribunal gives substantial weight to the fact that the decision to grant the visa was made substantially on the basis of the applicant's risk of harm on account of his religion and, in light of the available country material before the delegate, the same decision may well have been made if the correct information was known, as well as if the information about the applicant’s pro-western imputed political opinion had been considered. The Tribunal gives weight to the circumstances of the applicant at the time of non-compliance. It accepts that he was a person who held a genuine subjective fear of return to Iraq at that time, and that the majority of his claimed profile was true and correct. The Tribunal has also placed weight on the passage of eight years since the non-compliance, during which time the applicant has been patiently waiting to sponsor his wife and [children]. The applicant has in that time integrated to some extent in the community. The Tribunal acknowledges and gives some weight to voluntary contributions he has made. It takes into account non-refoulement obligations which would arise today, noting also their existence as found by the Department in 2017.
Conclusion
112. 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 not be cancelled.
DECISION
113. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Christine Cody
Member

Annexure A – 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.

Annexure B

The country information indicates that an application for an Iraqi passport for a child under the age of 18 can be made by a parent from abroad. Even in circumstances where the child is resident within Iraq, a parent can provide consent to issue the child a passport from abroad[11].
[11] ‘Iraqi Passports Affairs Directorate’, The Republic of Iraq, Ministry of Interior, General Directorate for Nationality, undated, CISEDB50AD3768.

The Passport Affairs Directorate of the Iraqi General Directorate for Nationality of the Ministry of Interior has made the application for a passport available on their website. After filling out the form, it indicates that Iraqis living abroad must go to the Iraqi consulate to provide fingerprints and identification documents. In relation to people under the age of 18, passports may only be issued with the consent of a guardian. The website also states that an Iraqi living abroad, with children living within Iraq, can provide their consent from abroad: ‘the Guardian, who is outside the Republic of Iraq to send approve the issuance of passports to minor children who were inside Iraq by the Iraqi embassy in that country for the purpose of sending to the Directorate of Passports’.[12]
[12] ‘Iraqi Passports Affairs Directorate’, The Republic of Iraq, Ministry of Interior, General Directorate for Nationality, undated, CISEDB50AD3768.

A Landinfo report from December 2015[13] provides the following information on applying for a passport from Sweden.
[13] ‘Iraq: Travel documents and other identity documents’, Landinfo Country of Origin Information Centre, 16 December 2015, p.11.
Iraqi nationals living abroad fill in the application form that is available online.
Applicants no longer need to schedule an appointment to submit their application and
ID documentation at the Iraqi embassy in Stockholm (the Iraqi embassy in Stockholm,
telephone conversation, November 2013). The change of procedure was introduced 9 October 2013 due to a reduced demand for passports. Applicants can now come at
any time during the embassy’s opening hours. The embassies require applicants to
present their original ID documents (national ID card and nationality certificate) when
applying for a passport. They must also enclose their residence permit from the
country they live in. The ID card cannot be older than 15 years (Iraqi Ministry of Interior.
Obtaining a Passport from Outside Iraq
…the process for obtaining a passport from outside Iraq is the same as that from
within Iraq, with the following differences: the applicant submits the required documents to an Iraqi consulate or embassy, pays US$20, and picks up the passport
at an Iraqi embassy or consulate (ibid.). The Passport Affairs Directorate adds that
fingerprints are taken at Iraqi consulates, and clarifies that citizens applying from
outside Iraq must provide a residence ID document instead of the housing and supply
cards…
Passports for Youth
The Iraqi embassy official indicated that Iraqi youth require the approval of their
guardian to apply for a passport from within Iraq (ibid.). The Passport Affairs
Directorate adds that, for a child under the age of 16, the guardian must submit the
necessary documents to the passport office, and that the child must also be present
to provide his or her fingerprint (ibid. n.d.d). The embassy official said that if children
under the age of 12 do not have a certificate of Iraqi nationality, a father's certificate
will be accepted (ibid. 14 Dec. 2011).
The Embassy in London indicates that, if they are outside of Iraq, children under the
age of 12 require two colour copies of the child's father's Iraqi Nationality Certificate
(ibid. 15 Feb. 2010)

In 2011 an official at the Embassy of the Republic of Iraq in Ottawa told the Immigration and Refugee Board of Canada[14] that:
[14] ‘Requirements and procedures to obtain a passport from within and outside of Iraq’, Immigration and Refugee Board of Canada (IRB), 23 December 2011.

[2020] AATA 2110

27 April 2020

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction