1732771 (Refugee)

[2018] AATA 5357

1732771 (Refugee) [2018] AATA 5357 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732771

COUNTRY OF REFERENCE:                 Iraq

MEMBER:Melissa McAdam

DATE:20 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 December 2018 at 10:42am

CATCHWORDS

REFUGEE – protection visa ­– Iraq – visa cancelled – applicant travelled back to Iraq –  young family – religion – Sunni – Badr organisation – fear of religious persecution – decision under review set aside and substituted a decision not to cancel applicant’s visa­­

LEGISLATION

Migration Act 1958 (Cth) ss 101, 107, 109, 189

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the applicant had not complied with s.101(b) of the Act by providing incorrect answers in his visa application.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

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

   Background

5. The applicant was granted a Protection visa [In] June 2010.

   NOICC

6. [In] February 2017 the Department sent a ‘Notice of Intention to Consider Cancellation Under s.109 of the Migration Act 1958’ (‘NOICC’) to the applicant. In summary the NOICC stated that:

   a.The delegate was satisfied there had been non-compliance with paragraph 101(b) of the Act which provides that a “non-citizen must fill in his or her application form in such a way that … no incorrect answers are given or provided.”

   b.In his Protection visa application form the applicant provided the following information:

   i.In response to the question ‘I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries)’ he stated  “Iraq”.

   ii.In response to the question ‘Why did you leave that country’ he stated “Please refer to statutory declaration.”

   iii.In response to the question ‘What do you fear may happen to you if you go back’ he stated “Please refer to statutory declaration.”

   iv.In response to the question ‘Who do you think may harm/mistreat you if you go back’’ he stated “Please refer to statutory declaration.”

   v.In response to the question ‘Why do you think this will happen to you if you go back’ he stated “Please refer to statutory declaration.”

   vi.In response to the question ‘Do you think the authorities of that country can and will protect you if you go back? If no, why not’ he stated “Please refer to statutory declaration.”

   vii.In his Statutory Declaration of 3 March 2010 the applicant provided:

   ‘I, [Name]…
   Introduction – Citizenship
   1. I am an Iraqi citizen and I was born in Nasireah, Afiraah Iraq. I am [age]. I lived all my life in the area. I left my country [in late] 2009.

   The country to which I fear returning
   2. I fear returning to Iraq. I recently ([day] October 2009) received a threat when I was at work. I was approached by people of the Badir organisation who belongs to the Supreme council.

   3. Currently Iraq is ruled by a number of parties such Aldaawah party, Supreme council, Al Fadilla party, and Al Sadir party.

   4. I have no connection with any of the above political parties / organisations. I am a Sunni and the Badir organisation wants to get rid of the Sunni people in region. The Al Sadir organisation developed an assassination technique after the event of 2007 (Sunnis were accused of bombing Shia holy places).

   5. Abu Dirraa was a leader of the army of the Al Sadir organisation. This person initiated a campaign against the Sunni people and during this campaign the Imam of the Alabrar Mosque was assassinated and they burned the Mosque. This campaign continued from 2007 to 2008 until the political parties united and created a front with the Government.

   6. After this front was created Sawlat Alfursan organisation destroyed the Al Sadir organisation.

   7. On the 15 of October I was called by a group of people and told to come and work for them. I was forced to leave my employment and studies at University to work for them. I was chosen because I am Sunni. The Sunnis are a minority. The people who forced me belong to the supreme council.

   8. They wanted to make a scapegoat of me and I had no choice but to agree with them. I was forced to sign a declaration in case I refused and would be considered a traitor if I did refuse to cooperate with them. The also told me I was not allowed to leave the area and not to disclose to anyone the discussion I had with these people.

   9. I was told that an appointment time will be delivered to me to do something for them.

   10. After that threat I moved my family to Al Nassir because I was fearful of what would happen to them.

   11. Me and my family lived under threat of being killed.

   Why I left that country
   12. I left because I have been persecuted because of my religion.

   What I fear may happen to me in Afghanistan [sic]
   13. I will be killed because I didn’t comply with the request to work with the organisation and am now considered a traitor.

   Who I think may harm / mistreat me in Iraq and why
   14. The Badir [Badr] organisation was responsible for the threat made against me and they will initiate me killing if I return to Iraq.

   Do I think the authorities of that country can and will protect me and or my accompanying family member, where applicable, if I / we were to go back
   15. No, the Badir party and government work together. It would be suicide for me to return to my country.

   Do I think that there is a place in that country where I could be safe?
   16. No, the Sunnis are a minority and I would not be safe anywhere in Iraq. Sunnis are unable to vote and even if I did the authorities would cheat.’

   viii.Based on this information the applicant was granted a class XA subclass 866 Protection visa.

   ix.Movement Records show that since the grant of the visa the applicant has travelled offshore three times:

   §Departed Australia [2010] and returned [2010] ([Number] days)

   §Departed Australia [2011] and returned [2012] ([Number] days)

   §Departed Australia [2013] and returned [2013] ([Number] days).

   x.On each return the applicant provided an incoming passenger card indicating he spent the majority of his time in Iraq.

   xi.This information indicated that the applicant did not hold the adverse profile he had claimed in his Protection visa application.

   xii.Based on this information it appears the applicant had provided incorrect answers in his Protection visa application form to the questions set out above.

   Applicant’s Response to the second NOICC

7. The applicant provided a response to the NOICC through his Agent on 14 March 2017. It stated the following (in summary):

   a.The applicant was truthful in telling his reasons for seeking protection in Australia.

   b.He would not return to Iraq unless forced to do so under compelling circumstances.

   c.He had left his family in Iraq in a miserable condition.

   d.If he had stayed in Iraq he would have been killed by Shi’ite militias.

   e.When he contacted his family from Australia he realised the extent of his departure on their lives. His children cried asking him to return to them. He decided to go to Iraq and meet with his family in Baghdad. It was not possible for him to travel to Nasiriya. He applied for a Travel Document but there was no procedure for obtaining permission to travel or explaining the reason for his travel. He went to Iraq and was in [City 1], [in] Baghdad, for [a number of] days with some relatives who live there.

   f.On the second occasion his wife was pregnant and needed a Caesarean Section. He had to be present to give his consent for the surgery.  When he arrived in Iraq he realised his wife’s health was deteriorating so he postponed his return to Australia several times to take care of her. He stayed in Nasiriya at home with his wife and avoided going out or being seen by others.

   g.He travelled to Iraq again in 2013 because he needed to obtain passports for his children to be able to join him in Australia.

   h.His travels to Iraq occurred under exceptional circumstances concerning his family. He has not travelled again to Iraq since his family have arrived in Australia.

   i.He attached a Birth Certificate for his son [name], born on [date]; a copy of the biodata page of [his son’s] Iraqi passport, issued [in] 2013; and his wife’s Certificate of Admission and Release from  [Hospital] for the dates [in] August 2011, with reason stated to be “Caesarean Section”.

   ITOC Assessment

8. [In] August 2017 the Department completed an ‘International Treaties Obligations Clearance’ assessment for the applicant. The assessor accepted that the applicant returned to Iraq to visit his family and be with his wife during the birth of their child.  Given that he spent most of his time in Nasiriya the Assessor did not accept that he feared the Badr Brigade as claimed. The Assessor accepted the applicant is Sunni Muslim.  He referred to a June 2017 DFAT report that discrimination and violence against Sunnis is increasing and that Sunnis in non-Sunni areas such as the south face a high level of societal discrimination and violence.  He was satisfied that the situation had deteriorated in the four years since the applicant had been in Iraq and that the applicant would be at increased risk of being imputed with Islamic State (IS) sympathies. The Assessor referred to DFAT’s report also in finding that the applicant could not safely relocate in Iraq.

9. The Assessor was satisfied that there is a real chance the applicant would be persecuted for reason of his religion if he returned to Iraq and that non-refoulement obligations are owed to the applicant by Australia under the CAT and the ICCPR.

   Cancellation Decision

10. [In] December 2017 the Department delegate cancelled the applicant’s Protection visa.

11. The delegate considered that the applicant had not complied with s.101(b) of the Act.

12. The delegate found that the applicant’s travel history to Iraq after the grant of his Protection visa indicated he did not hold the adverse profile he had claimed in his Protection visa application. She found that the applicant was not of adverse interest to the Badr Organisation or the Supreme Council.

13. The delegate noted the ITOC Assessment but considered that a decision to cancel the applicant’s visa is not of itself a decision to remove a person from Australia, and is not a breach of non-refoulement obligations.

14. The delegate noted that if the applicant’s visa was cancelled he would be barred from making a valid application for a further visa, and that he would become an unlawful non-citizen liable to be detained under s.189 of the Act, and subject to indefinite detention. The delegate considered that these are intended legal consequences applicable to Protection visa cancellations on the basis of providing incorrect information in a visa application, and that they were of minimal weight in her discretionary consideration.

    Information to the Tribunal

    Tribunal Hearing, 12 December 2018

15. The applicant appeared before the Tribunal on 12 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife and  [child], [name]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

16. The following is a summary of the information provided by the applicant in the hearing:

    a.He confirmed he and his family are Sunni Muslims.

    b.His father lived in [City 1] for some years but the applicant was born in Iraq.

    c.After the war Sunni people became a minority.

    d.The [employer] of the [organisation] where the applicant worked was a member of the Badr organisation. He was one of the people who approached the applicant to convince him to work for the organisation.

    e.The first time the applicant returned to Iraq he stayed in [City 1] at his [sibling’s] place, [in] Baghdad. His [sibling’s partner] was from Baghdad so [they] were able to live in [City 1].

    f.The second time he returned to Iraq he stayed at his father-in-law’s place in [Town 1].  He was careful with his movements and did not go in to Nasiriya city.  He had moved his family to [Town 1] just before he departed Iraq in 2009.  They stayed there under his father-in-law’s protection.

    g.The third time he returned to Iraq he again stayed with his family at his father-in-law’s place in [Town 1].

    h.He has not breached any laws in Australia. There are no charges or convictions against him.

17. The applicant’s wife confirmed that she and her family stayed with her father in [Town 1] when the applicant first departed Iraq.  They were living there still when the applicant returned in 2011 and 2013.

18. The applicant’s [child] stated he is meant to be in Australia and he wants to contribute and give back to Australia when he is older.  He is the [specified role] of his school.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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.

20. 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.

21. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

22. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with section 101(b). The delegate found that the applicant had provided incorrect answers in his visa application form because his returns to Iraq indicated that he did not hold the adverse profile he had claimed in his Protection visa application.

23. The applicant has denied that he provided incorrect answers in his Protection visa application form.

24. The Tribunal is mindful that in cancellation cases, the obligation to establish the existence of facts which ground the exercise of the statutory power is on the Minister (or on review, the Tribunal). There is no obligation on the visa holder to establish that the visa should not be cancelled.

25. The applicant maintains that his first return to Iraq in late 2010 (for just under [a number of] days) was due to the need to see his wife and children after being away from them for a long time, and leaving them in an insecure situation. He provided clear and consistent evidence that they met in [Baghdad], [City 1], and that he did not return to the southern part of Iraq. It is very plausible that he would feel compelled to meet his family in this manner and the Tribunal accepts he did so.

26. The applicant has stated that his two more lengthy returns were to the southern part of Iraq.  These were approximately one and a half years, and three years after the incident that caused his departure.

27. In his written response to the NOICC  he stated he returned to ‘Nasiriya’ on those two occasions. However at his Tribunal hearing he clarified that he went to and stayed in [Town 1], [at] his father-in-law’s place, where he had previously taken his family for their safety.

28. Available maps show [Town 1] to be located approximately [a number of] km [specified] of the city of Nasiriya. [Town 1] is also approximately [a number of] km south of the town of [Town 2], where the applicant had lived and worked and was threatened by the Al Badr organisation. The Tribunal notes information that Nasiriya is the provincial capital of Thi-Qar, and Nasiriya is also the name of the district area that includes [Town 1].  Media reports use the term ‘Nasiriya’ when referring to the larger district area in Thi-Qar. The Tribunal accepts the applicant was using the term ‘Nasiriya’ in his NOICC response as a shorthand for the district he stayed in on his returns.

29. The applicant’s wife confirmed that she and her children were living in [Town 1] when the applicant returned to Iraq on the last two occasions.  This is further plausible given the cultural appropriateness of the applicant’s wife and children living with a trusted male family member, particularly his wife’s father, after the applicant’s departure.  

30. In view of the above the Tribunal accepts that the applicant stayed in [Town 1] on his second and third returns to Iraq. 

31. The Tribunal also notes available country information[1] that in the relevant years 2010 to 2013 the Badr Brigade was considered a mostly political organisation engaged in a power struggle with the Shia Sadrist Jaysh al Mahdi forces in the south.  In that context it seems plausible that the applicant would risk maintaining a low profile removed from the immediate vicinity of the Badr Brigade to stay temporarily in Iraq, firstly to care for his ill wife, new baby and children; and later to ensure they obtained the documentation required so that they could leave the insecurity of  Iraq and join him in Australia.

    [1] See e.g. IRIN, ‘Briefing: Why is Iraq still so dangerous?’, 1 August 2012, available at: >

    The delegate based her finding that the applicant’s answers had been incorrect on the repeated assertion that the applicant “did not hold the adverse profile as claimed in his Protection visa application”.  The ‘adverse profile’ refers to the information in the applicant’s Statutory Declaration accompanying his Protection visa application that (in summary):

    §  As a [Occupation 1] from the Sunni minority in Nasiriya the Shia Badr Brigade tried to force him to leave his employment and work for them in an undisclosed manner.

    §  Before the applicant could provide any service to the Badr Brigade he moved his family to [Town 1] and then fled Iraq.

32. The applicant’s subsequent returns to Iraq indicate a range of possibilities, not merely the possibility that he provided incorrect answers about his profile in Iraq. They readily encompass the possibility that the applicant’s information was not incorrect but that he felt compelled to take a calculated risk one year after his departure to return briefly to a part of Iraq quite removed from the setting of his localised fear; and two or three years after his departure to return temporarily to a [part] of Iraq some distance from the town in which he had been threatened.

33. There is no clear or persuasive evidence that the applicant did not possess the fear he wrote of in his Protection visa application, or that the events he claimed occurred, did not.  There is a mere possibility which does not compare well to other plausible reasons for his returns to Iraq.

1. In order to affirm the decision the Tribunal must be positively satisfied of the incorrectness of the answers to questions specified in the NOICC. The Tribunal is not so satisfied. The evidence is not such that it can be established positively that the answers provided by the applicant were incorrect at the time of lodgement of his protection visa application.

2. For these reasons the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. It follows that the discretionary power to cancel the applicant’s visa does not arise.

   DECISION

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

   Melissa McAdam
   Member

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

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

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

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

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

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

   97Interpretation

   In this Subdivision:

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

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

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

   98Completion of visa application

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

   99Information is answer

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

   100Incorrect answers

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

   101Visa applications to be correct

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

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   107Notice of incorrect applications

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

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

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

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

   (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

   (f)      requiring the holder:

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

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

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

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

   (b)     otherwise—14 days.

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

   (a)      visas of a stated class; or

   (b)     visa holders in stated circumstances; or

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

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

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

   108Decision about non‑compliance

   The Minister is to:

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

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

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

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

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

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

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