1733270 (Refugee)

1733270 (Refugee) [2020] AATA 2093 (4 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1733270
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Tania Flood
DATE:4 March 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 04 March 2020 at 11:44am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – Federal Circuit Court remittal – ground for cancellation – bogus document – White Card – Iranian Proof of Identity for Foreign Residents Card – incorrect information in visa application – country of citizenship – claimed statelessness – Iraqi national – claimed fear of harm – voluntary return to Iran on two occasions – consideration of discretion – likelihood of visa grant if correct information was provided – length of time spent in Australia – relationship with Australian partner and her children – non-refoulement obligations – Shi’a Faili Kurd – returned asylum seeker – significant hardship – dangerous and difficult environment for someone with no local knowledge and experience – lack of familial support – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 108, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
On 8 November 2016 the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) under s. 109 of the Act. On 25 November 2016 the applicant’s representative responded to the notice. A further response to the notice was received on 1 December 2016 and was considered by the delegate.
On 28 February 2017 the applicant’s subclass 866 (Protection) visa was cancelled by a delegate of the Minister for Immigration under s.109 of the Act. The delegate cancelled the visa on the basis that the applicant did not comply with s.103 which requires a non-citizen not to provide a bogus document and s.101(b) which provides a non-citizen fill in or complete the application form in such a way that no incorrect answers are given or provided.
The applicant applied for a review of the delegate’s decision. On 23 August 2017 a differently constituted Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 5 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner and her [children]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by his registered migration agent.
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 issue in the present case is whether that ground for cancellation is made out, 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.
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.
The Notice of Intention to Consider Cancellation
On 8 November 2016 the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC). The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) and s.103 of the Act in the following respects:
The applicant arrived in Australia as in Illegal Maritime Arrival (IMA) [in] January 2010.
He attended an Entry Interview at Christmas Island on 2 February 2010, and provided the following information:
His name is [the applicant], born in Ilam, Iran on [date]. He is stateless and a Faili Kurd. He provided a white card issued in Ilam. He stated that he was not known by any other names. He stated that he left Iran using a false Iraqi travel document organised by his uncle [Mr A]. He stated that the document carried his photograph, name, and date of birth. He stated that his uncle had gotten the false passport from someone named [deleted].
He stated that he left Iran [in] August 2008 and travelled to [Country 1] with his uncle, his uncle’s wife and their child. While he travelled with them to [Country 1], he did not travel by boat with them.
He requested a Refugee Status Assessment (RSA). On 15 April 2010 he was assessed as being a refugee.
On 12 April 2010 the applicant lodged an application for a class XA Subclass 866 Protection visa. As part of this process he provided completed Forms 866B and 866C.
At question 9 of form 866B which asks “Are there any members of the family unit who are not in Australia at the time of application?” he answered “Yes”. The applicant provided details of his parents, sister, and brother. In relation to all of them, he answered that they are stateless and that their country of residence in Iran.
At question 12 of form 866B where it states “Please list all the documents you need to provide with this application, and indicate when you will be providing them. If you cannot provide certain documents, indicate this in the table and provide details at question 13”, the applicant responded “Never issued with any other identity or travel documents other than White Card.”
At question 13 of form 866B where it states “if you cannot provide a document, please indicate which document and explain why”, the applicant responded “Refer to RSA Statement of Claim Q23-32. I left using a false Iraqi passport given to me by a smuggler. I had to give that back to the smuggler in [Country 2]. I have never been issued with any other identity or travel documents other than that with me. I held a Green Card until 2001 but this was exchanged for a White Card. I have never held a valid travel document.”
At question 4 of form 866C which asks “What other names have you been known by?” the applicant did not provide a response.
At question 19 of form 866C where it states “Your citizenship at birth” he answered “stateless-but born in Iran.”
At question 20 of form 866C where it states “Your current citizenship (if different to at birth)” he answered “Stateless.”
At question 21 of form 866C which asks “Do you hold any other citizenship or are you a national of any other country?” he answered “No.”
At question 22 of form 866C which asks “Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?” he answered “No”.
At question 41 of form 866C where it states “I am seeking protection in Australia so that I do not have to go back to” he answered “Iran”.
At question 42 of form 866C where it states “Why did you leave that country?” he answered “Because I am a Kurdish Faili and I have a well-founded fear of persecution in Iran. There is no safety for Kurdish Faili’s in Iran. We are harassed by the authorities. I have been beaten up by the Baseej three times and harassed. I have been arrested by the Baseej and detained and also beaten.”
At question 43 of form 866C where it states “What do you fear may happen to you if you go back to that country?” he answered “I feel that I will suffer serious harm if I return to Iran. I have been beaten up, arrested and detained in the past and I fear that it will happen again in the future. This has happened to my brother and to my friend as well.”
At question 44 of form 866C where it states “Who do you think may harm/mistreat you if you go back?” he answered “The Baseej, the Iranian Government and its agencies.”
At question 45 of form 866C where it states “Why do you think this will happen to you if you go back?” he answered “This will happen to me because I am a Kurdish Faili and because I have no citizenship. Kurdish Faili have no civil rights in Iran.”
At question 46 of form 866C where it states “Do you think the authorities of that country can and will protect you if you go back? If not, why not?” he answered “No. The Iranian Government tolerate the Baseej and how it treats us. The Iranian Government is the one who I am afraid of.”
The applicant was granted a Protection visa on 15 February 2010 on the grounds of his race, based on his claims as a stateless Faili Kurd.
The delegate put it to the applicant that information before the department supports that his father [is] an Iraqi citizen. This follows that the applicant is also an Iraqi citizen and not stateless as claimed in his Protection visa application. An identity assessment also found that his family members have provided Iraqi documents, which shows that his family members are Iraqi citizens and not stateless.
The notice also stated that the applicant provided inconsistent information as to how he left Iran with a fake Iraqi passport organised by his uncle. In his interview with the Department he said his father had arranged the passport. He then clarified by saying both his father and uncle organised the document and made arrangements for him to leave Iran. The applicant also claimed the passport was counterfeit and reiterated that the person who manufactured the document reported it was fake. The delegate put it to the applicant that the passport could have been genuinely issued to him given that the applicant could provide very little information about its authenticity.
The notice stated that the applicant did not provide correct details about his family members and their country of residence. The details he gave about his aunts and uncles were consistent with the information the department has in relation to what his uncle, [Mr A], had reported to the department. However, the applicant had only provided the name of one cousin, [Cousin B], and did not provide details of any other cousins in Iraq. Through a social media search, the department found a photo of the applicant’s brother, and his cousin, [Cousin C]. The applicant confirmed that his cousin lived in Iraq but was unable to explain the discrepancy in the information he provided to the Department.
In addition, the department located a photo of the applicant’s brother in Karbala, Iraq. However, the applicant had told the department that none of his family members including his brother had returned to Iraq. Furthermore, another photo placed on [Cousin C]’s social media page shows the applicant and [Cousin C] in Iran. The delegate stated that this shows that his cousin was able to travel from Iraq to Iran.
The notice stated that there are serious concerns as to his identity, as the Department had information which indicates he is known by other names: ‘[Alias 1], [Alias 2]’, and ‘[Alias 3]’. In addition, the applicant’s uncle had referred to the applicant in his own application as ‘[Alias 4]’ raising the possibility that he may be known by more than one family name. The delegate put it to the applicant that the inconsistencies between his original claims in his protection visa application and his subsequent identity interview suggests that he is an Iraqi citizen and not stateless as claimed.
The delegate put it to the applicant that the White card provided to the Department is counterfeit as it does not reflect his age at the time he obtained the card. It was also found to be counterfeit after an assessment by the Department’s Document Examination Unit. The notice stated that the conflicting information the applicant provided at his identity interview dated 11 March 2016, and the counterfeit document, raises the possibility that he may hold an Iranian citizenship.
Furthermore, the notice stated that the applicant provided incorrect information in response to questions 41-46 of form 866C, as he returned to Iran on two separate occasions after being granted a Protection visa:
·Between [February] 2012 and [May] 2012
·Between [November] 2013 and [February] 2014
The notice stated that the applicant had obtained an Iranian visa in his Titre de Voyage to travel to Iran, with entry and exit stamps for Tehran Airport. The delegate put it to the applicant that the fact that he voluntarily returned to Iran twice and for significant periods of time indicates that he is not afraid of the Iranian government. It also indicates that he did not fear being beaten up, arrested, or detained as stated in his Protection visa application.
The notice stated that the applicant provided incorrect answers to questions 9, 12 and 13 of form 866B and questions 4, 19-22, and 41-46 of form 866C.
The notice also stated that the applicant has not complied with s.103 of the Act as he provided a false document because his White Card was found to be counterfeit.
Responses to the notice
On 1 December 2016 the applicant’s representative made a submission in response to the notice. The representative stated that at the time of the application, the applicant did not provide incorrect information, as he is in fact a Faili Kurd, a minority group in Iran, who experience systematic discrimination. It was submitted that the applicant was never a citizen of Iraq. Both of his parents have now been granted Iraqi Citizenship, but the applicant does not have Iraqi Citizenship, despite being entitled to it.
In response to the delegate’s finding that the applicant provided a false document, it was submitted that the applicant’s White Card is a genuine document, which had been issued and verified twice by the Embassy of the Iranian government.
The representative stated that the applicant has lived in Australia for almost seven years and it would be difficult, dangerous, and detrimental to his well-being if he were to return to Iran, or be sent to Iraq. It was also submitted that the social and political environment has changed drastically in both countries, such that he would be unable to settle back in Iran or begin living in Iraq. The representative further stated that it would be difficult for the applicant to support himself by means of employment as he cannot speak the language and is not aware of the cultures and laws in Iraq.
The representative stated that the applicant would face significant hardship and uncertainty if his visa is cancelled. The submission referenced country reports from sources including Amnesty International, to demonstrate the claimed persecution and human rights abuses against Kurdish minorities in Iran. It was claimed that the applicant would also face persecution as a member of a particular social group being ‘a returning failed asylum seeker from a western country’.
Furthermore, the representative submitted that if the applicant is found not to be a refugee, he should be granted complementary protection as there are substantial grounds for believing that there is a real risk that he will suffer significant harm if refouled from Australia. It was submitted that the applicant would be arbitrarily deprived of his life should he be forced to return to Iraq as he will suffer harassment and discrimination by the authorities of the Islamic regime as well as civilians who are sympathetic to the current regime of Iran. In addition, the representative stated that the applicant is likely to face significant harm arising from torture should he be forced to return to Iran.
The representative also submitted the following documents in response to the notice:
·Copy of an Iraqi Citizenship card for the applicant’s [mother]
·Copy of an Iraqi Citizenship card for the applicant’s [father]
·Copy of a White Card in the applicant’s name
·Copy of a Green Card for the applicant’s father
·Copy of the applicant’s visas to Iran
Evidence before the First Tribunal
Pre hearing submissions
On 12 July 2017 the applicant’s representative made a submission to the first Tribunal disagreeing with the findings made by the delegate. The representative stated that the applicant’s visa has been unfairly and arbitrarily cancelled for the following reasons:
Contrary to the delegate’s finding under s.103, the applicant’s White Card is a genuine document. It was submitted that the Department’s assessment was incorrect and unsupported, and that it would be implausible to find that the applicant’s White Card would be counterfeit, as his parent’s Green Cards were genuinely issued. In addition, in response to the delegate’s finding that the applicant held a genuine Iraqi passport, the representative stated that when the applicant left Iraq, his parents were not Iraqi citizens, which follows that the applicant would not have held a genuine Iraqi passport.
In response to the delegate’s findings under s.101, it was again stated that the applicant did not provide incorrect information to the Department as his parents were stateless at the time of application. His parents later returned after the Iraqi war to reacquire their citizenship. In addition, the representative stated that the applicant and his parents have never held an Iranian citizenship, despite spending ‘a significant amount of time in Iran’.
In regards to the delegate’s findings under s.108, the representative stated that the delegate had not properly or adequately taken the applicant’s responses into consideration. It was submitted that although the applicant was able to return to Iran on two occasions, the chance that he may face harm in Iran should not be disregarded. The representative clarified that the applicant will not be able to reintegrate into the Iranian community, after spending a significant time in Australia. He is also still a Faili Kurd and would face discrimination and abuse.
In addition, the submission repeats the claims previously made in the applicant’s response to the notice, in relation to complementary protection. The submission also references a large amount of country information from sources including Human Rights Watch, Amnesty International, and various news sites commenting on the situation in Iraq and the treatment of Kurds in Iran. It was submitted that this information shows that although he is now entitled to Iraqi citizenship, the applicant would not be able to live or survive in Iraq.
First Tribunal hearing
The applicant appeared before the first Tribunal to give oral evidence on 19 July 2017. The hearing was conducted with the assistance of an interpreter in the Persian language. The applicant’s representative was present at the hearing.
The applicant’s testimony to the first Tribunal is summarised as follows:
He confirmed he travelled to Iran twice after being granted a Protection visa using an Australian Titre De Voyage travel document. On both occasions he travelled to see his sick mother but he has no evidence of her illness to produce.

He was a kid when his White Card was issued. The date which appears on the card is the expiry date and not the issue date. He knows this because every card he has had has an expiry date.
He confirmed he departed Iran using a fake Iraqi passport. In response to country information presented to him about the difficulties of departing Iran using fake documents he indicated that any hurdle in Iran can be overcome by the payment of money.
He maintained that the White Card he produced to the Department is not a fake document. He said he has obtained a visa from the Iranian Embassy in Australia using that card.
He does not know why the UNHCR document states his nationality is Iraqi. When he attended an interview with the UNHCR in [Country 1] he was accompanied by his uncle. He said he didn’t know about such procedures.
His parents became Iraqi’s in 2012 but he has never lived in or visited Iraq. He has no Iraqi identity documents. He concedes he is entitled to Iraqi nationality based on his father’s citizenship.
He has relatives, including cousins in Iraq.
His brother is not living in Iraq; he lives in Iran.
When he was interviewed previously by the Department in 2016 he was scared to disclose that family members have travelled to Iraq and obtained Iraqi citizenship. He was afraid he would be returned to Iran or Iraq.
His parents told him that they obtained Iraqi documents in 2012.
His brother and sister have since gone to [Country 3] where they now reside as refugees.
He is a Shia Muslim but does not believe or practice his religion.
He has a partner in Australia with whom he has been in a relationship for four years. His partner has two children aged [age] and [age]. They do not live together but they see each other every day. She is a Catholic and her family don’t accept him because he is Muslim. His parents are aware of his relationship. He would like for them to get married but they need to fix the problems they have.
He previously worked in Australia but sustained injuries in a physical assault which now precludes him from working in [Industry 1]. He is now a carer for a friend and receives Centrelink benefits.
Post hearing submissions
On 22 August 2017 the applicant’s representative made a submission responding to issues raised at the hearing.
The representative stated that the applicant’s White Card does match the true identity and age of the applicant, as the date recorded on the document is the expiry date and not the date of issue.
In relation to the applicant’s citizenship, the representative repeated previous claims made to the Department and to the first Tribunal, stating that the applicant does not have Iranian citizenship and is only ‘entitled’ to Iraqi citizenship. He was able to travel to Iran as he was granted a tourist visa.
The submission also repeats the claims that the applicant would not be able to reside in Iraq as there is instability in all regions, especially for Kurdish people. The applicant’s safety cannot be guaranteed, regardless of whether he is an Iraqi citizen.
The submission also states that the applicant has settled into Australia. He has been in a relationship with an Australian woman for four years and they intend to marry.
In addition, the representative submitted copies of untranslated identification documents belonging to the applicant and his family, which are claimed to show that the applicant and his family are not citizens of Iran.
Submission to the newly constituted Tribunal
On 2 February 2020 the applicant’s representative made a submission to the Tribunal which again responds to issues regarding the Department’s decision to cancel the applicant’s visa. The submission also references country information in respect of the current security situation in the Middle East; the situation for Kurds in Iraq and Iran and Failed Asylum Seekers returning to Iran.
It is submitted that the applicant’s white card is a genuine document and there is no reason for the applicant to lie about it. It is far-fetched to conclude that the document is fake because the applicant was not aware of the process for obtaining and renewing his white card. The department ought to have been aware of his age when he left Iran and be able to determine how old he was when he gained his white card. It is doubtful that his parents, who were able to receive genuine Green Cards would give a fake white card to their son. Further, it is submitted that the applicant was not a citizen of Iraq, and neither were his parents and as such it would have been impossible for him to gain a genuine Iraqi passport deeming him not to be a citizen of Iraq at the time. It is submitted that the applicant did not at any time provide incorrect information to the Department. The change in circumstances does not then make the information incorrect and dishonestly given, rather it makes it merely out of date.
It is submitted that at the time of his application the applicant and his parents were stateless. Although country information shows that from 2006 Faili Kurds were able to return to Iraq and to reacquire their citizenship the same information shows the difficulties that came with regaining their citizenship. For their own safety the applicant’s parents returned after the war and they reacquired their citizenship. The decision maker raised the fact that the applicant’s parent’s Iraqi citizenship has been renewed and then follows to claim that this means his parents have held Iraqi citizenship prior to 2011. It is submitted that this reasoning fails to engage with information that many Faili Kurds were not able to regain their citizenship until after 2006. The same resources indicate that regardless of this, reacquiring citizenship was a long process.
There is no evidence to show the applicant ever held Iranian citizenship. If he did have citizenship of Iran he would not have been granted entry visas into Iran when he returned.
It is submitted that just because the applicant has returned to Iran twice does not mean his fear of harm in Iran should be dismissed completely. The applicant’s representative clarifies that the applicant will face harm at the hands of his community, by means of him not being able to reintegrate with the Iranian community. It is will be very difficult for him to mesh in with a society that is generally oppressive, and restrictive in nature and its governance. He will not be able to support himself in that society where he does not have the same rights as other Iranians. He is also still a Faili Kurd and Faili Kurds in Iran have been victims of discrimination and abuse.
It is submitted that the applicant is now entitled to Iraqi citizenship however he cannot live in Iraq. The situation for the Kurdish population in Iraq is unstable and unpredictable and Faili Kurds in Iraq, due to their religion and ethnicity can face significant and systematic discrimination. Also, he is a Faili, Shia Kurd, meaning he may also face discrimination there from those who are not believers of Shia Islam.
It is submitted that deportation to Iran or Iraq would place the applicant in a very grave and detrimental situation as it is almost impossible for him to live in either of those countries both legally and socially. He faces a fear of harm in Iraq due to the lack of any cultural ties with that country. He would not be able to settle in, he cannot speak the dialect of Iraq and he is not aware of the laws and customs of Iraq. He would not be able to find employment or assistance in any way and the threat of living in a country that is completely alien to him would have a detrimental effect on his wellbeing. Also, Iraq has seen civil unrest over domestic issues with citizens protesting against the government and demanding social and political change. Widespread corruption and high unemployment has resulted in a decline in the quality of life in Iraq with many citizens not having access to basic needs such as water or adequate living conditions.
The applicant has lived in Australia for 12 years and he has established a life here, has learnt English and has become accustomed to the freedoms and cultures in Australia. He has not committed any crimes in Australia. He has been in a relationship with an Australian woman for 7 years and he has ties to his partner’s children, specifically the [age] year old son.
Oral evidence to the newly constituted Tribunal
By way of background the applicant confirmed he was born in Ilam, Iran. His parents were born in Iraq but moved to Iran. They remain living in Iran. His brother and sister are residing in [Country 3] as refugees. He has some family in Iraq including an uncle and aunty and cousins. In Iran, he studied until year [level] and then went to work with his father who is a [Occupation 1]. He speaks Kurdish and Persian and a little bit of Arabic.
The applicant maintained that his White Card is not counterfeit. When asked how the Tribunal could be satisfied his parent’s Green Cards are genuine he maintained they were issued by the Iranian government. He repeated his earlier claim that he used his White Card in order to obtain a visa for Iran. When questioned if he has other identity documents he confirmed he has a drivers licence.
As to why the UNHCR document states he is Iraqi he said that he was underage when he arrived in [Country 1] and that his uncle represented him during the interview. He maintained he is not Iraqi.
The Tribunal asked the applicant whether his uncle had Iraqi citizenship at the time they were in [Country 1] he said he did not.
As to his parents Iraqi documents and the fact his mother’s citizenship card which was issued [in] 2011 indicates it is a renewal the applicant said that his parents did not have Iraqi documents when he was living in Iran. He said they travelled to Iraq after his departure from Iran to obtain the documents.
As to how his parents travelled to Iraq and back into Iran he said he assumes they did it illegally and that it’s possible they travelled in and out of Iraq several times during the process of obtaining the citizenship documents. He claimed to not know any further details about how, when and why they travelled to Iraq in 2012.
When asked why his parents have opted to continue living in Iran where he claims Faili Kurds are discriminated against and mistreated, he said that they have lived in Iran for many years now and are used to the conditions there. He said that in Iraq they would have no security.
As to his brother being photographed in Iraq he maintained that this occurred after his own departure from Iran. He maintained that while he lived in Iran nobody from his family had returned to Iraq.
The people smuggler paid bribes in order that they could depart Iran on false Iraqi passports.
As to how he was able to return to Iran on two occasions he said that he did not return to Iran with the intention of living there. He said he went to visit his sick mother. During the visits he encountered no harm.
He cannot live in Iraq as he does not know anything about the country or the culture and it will be impossible to resume a life in such an unsafe country.
As to whether he will be at risk of harm from non-believers of Shia Islam in Iraq he said he does not know much about Islam and has never gone deeply into it.
The applicant confirmed he continues to work as a carer to his friend although he is now searching for other employment as well. He confirmed he continues to be in a relationship with the same partner. He said they continue to live apart and have not made future plans because of the uncertainty of his visa. He said that whereas his partner’s parents had some issues about their daughter being involved with a Muslim they have since accepted her decision. He is in close contact with his partner’s children who are now [age] and [age]. He visits them in their home and helps them in whatever he can. He confirmed he provides his partner and her children with no financial support. The applicant’s partner and children attended the hearing and expressed their support for him remaining in Australia.
The applicant said that prior to his [injury] he offered free [classes] to children at [location].
Before the conclusion of the hearing, the Tribunal informed the applicant that the Department file contains a public interest non-disclosure certificate in respect of s.438(1)(b) related documents. The Tribunal advised the applicant that on the face of it the certificate appears to be invalid because it is not signed. In any event the Tribunal advised the applicant that the relevant documents covered by the certificate contain information about issues which have previously arisen and been discussed with him in the course of the decision to cancel the protection visa and in the subsequent review of that decision by the formerly constituted Tribunal. The Tribunal provided the applicant with an overview of the relevant documents and information and reminded him that all the relevant information from those documents was again discussed with him in the course of the hearing. The applicant was asked if he wished to comment on the certificate or make submissions as to its validity. His representative responded that the Tribunal’s explanation was clear from a legal point of view. He added that the applicant’s concern is in respect of the issues surrounding the authenticity of his White Card. This issue is addressed below.
Post hearing submission

100. On 13 February 2020, subject to the requirements at s.424A of the Act, the Tribunal wrote to the applicant via his representative to invite him to comment on or respond to certain information. Specifically, the applicant was advised that the Tribunal had obtained a copy of the document examination report produced by a Forensic Document Examiner of the NSW Documentation Examination Unit dated 29 March 2016 which opines that the Iranian Proof of Identity for Foreign Residents Card numbered [number] is counterfeit because it does not exhibit the features and security characteristics expected of such a card.
101. On 1 March 2020 the applicant’s representative emailed the Tribunal advising that the applicant maintains his Iranian White Card is genuine. It was suggested that the card be sent to the Iranian Embassy in Canberra so they can provide a record of the White Card that is held by the Iranian Government to verify its legitimacy.
102. At the conclusion of the Tribunal hearing held on 5 February 2020 the applicant sought and was granted additional time until 19 February 2020 to make further submissions on issues which arose in the course of the hearing. At the time of this decision, no further submissions were received by the Tribunal other than the abovementioned.
Was there non-compliance as described in the s.107 notice?
102. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) and s.103.
103. The applicant has consistently claimed to be born in Iran to parents who are Faili Kurds from Iraq. He claims that his parents were stripped of their Iraqi citizenship and expelled to Iran in the 1980’s. He claimed that he and his family lived as stateless Faili Kurds in Iran and lacked any legal status. He claimed to fear returning to Iran where he previously suffered serious harm on account of being a stateless Faili Kurd and/or to Iraq where he feared he would be killed.
104. As can be seen from the information outlined above, serious concerns have arisen in respect of the applicant’s claimed statelessness throughout the course of these proceedings. Having considered the available evidence the Tribunal has reached its own conclusions about these concerns. These are as follows:
105. In an apparent attempt to support his claim of being a stateless Faili Kurd on arrival to Australia the applicant produced a White Card issued in his name by the Iranian authorities. The Tribunal notes the concerns raised by the delegate and the former Tribunal about the photograph on the White Card appearing to be of a person younger than the expected age of the applicant at the time the card would have been issued. The Tribunal notes the submission that the date which appears on the card is in fact the cards expiry date and not the issue date and accepts this explanation could account for why the person in the photograph appears younger than is expected. However, as discussed with the applicant during the second Tribunal hearing, the fact nevertheless remains that a report issued by the Department’s document examination unit concludes that his White Card is counterfeit. The applicant submits that this is incorrect because his parents Green Cards were genuine and he has used his White Card to obtain visas to visit Iran on two separate occasions.
106. The Tribunal notes the applicant’s suggestion that the White Card be sent to the Iranian Embassy in Canberra for verification. However, for all the reasons expressed herein the Tribunal has decided the matter on the available evidence.
107. The Tribunal notes the applicant’s insistence that the White Card is genuine but is unable to dismiss the evidence which is currently before it. The report, which was obtained and reviewed by the Tribunal and subsequently put to the applicant for comment post hearing, was prepared following an examination of the White Card by a qualified officer using forensic document examination techniques. The Tribunal considers it to be a credible report and there is nothing before the Tribunal to cause it to doubt the findings of the report other than the applicant’s assertions to the contrary. The Tribunal has afforded significant weight to the report and is satisfied that the White Card which was provided as evidence by the applicant is counterfeit. Accordingly, the Tribunal finds that the applicant has provided the department with a bogus document.
108. The Tribunal is prepared to accept the applicant is of Faili Kurd ethnicity. He has consistently claimed his parents are Faili Kurds who originate from Iraq but were forced to relocate to Iran; his claimed place of birth is the third largest Kurdish city in Iran and the available evidence indicates he speaks the Kurdish language. That said, there is no conclusive evidence before the Tribunal to conclude that he is an Iranian national. The Tribunal accepts the applicant grew up in Iran but is not an Iranian national.
109. On the other hand, the Tribunal considers that there are several key factors which indicate the applicant is and was an Iraqi citizen when he arrived in Australia. Firstly, as has been discussed with him throughout the former proceedings and again during the second Tribunal hearing a UNHCR document which was issued to the applicant on 9 June 2009 and which the applicant provided as part of his application indicates his nationality is “Iraq”. The applicant’s response to this information is that he was a minor when he arrived in [Country 1] and was represented during the proceedings which led to the issue of this document by his uncle. He maintained during the second Tribunal hearing that he had little knowledge of what occurred in respect of the interview and/or the document he was issued.
110. Based on his evidence the applicant was born on [date]. He left school at an early age and thereafter worked alongside his father before departing Iran in 2008. This would mean he was [age] years old when he arrived in [Country 1] and not a minor as is claimed. The Tribunal considers his life experience and age on arrival to [Country 1] to be indicative of him obtaining a degree of maturity and is not persuaded by his claimed lack of knowledge about the proceedings before the UNHCR in [Country 1] and/or why the UNHCR document lists his nationality as Iraqi. The Tribunal can see no reason why the UNHCR, an organisation dedicated to protecting the rights of refugees, forcibly displaced communities and stateless people, would have listed his nationality as Iraqi if he claimed to be a stateless Faili Kurd born in Iran. The Tribunal considers this document also casts doubt on the applicant’s claim to be stateless and the Tribunal has placed weight on this evidence.

111. There is also evidence before the Tribunal which indicates that the applicant’s parents hold Iraqi citizenship but conveniently he maintains they only obtained their documents after he applied for and was granted a Protection visa. Relevantly, the available evidence indicates that the applicant previously conceded to providing incorrect information to the department during an interview held on 11 March 2016 when he said that neither he nor any of his family had been back to Iraq because they were holders of Iranian White Cards.   He informed the former Tribunal that he feared disclosing this information because he was worried he would be sent back to Iraq. When the applicant gave evidence during the second Tribunal hearing he maintained nonetheless that his parents only obtained their Iraqi citizenship in 2012 and prior to that date neither they nor any other family members had returned to Iraq.   While it is commendable that the applicant conceded he had previously been untruthful to the Department his willingness to do so at all remains a concern. This adds to the Tribunal’s concerns about the reliability of his evidence in respect of the timing of his parent’s re-acquisition of their Iraqi citizenship.
112. Notwithstanding the above, and also of significance to this Tribunal, is the fact that throughout the proceedings concerns have also been raised with the applicant about the fact his mother’s Iraqi citizenship card which was issued in 2011 and not 2012 as is claimed, indicates it is a renewal. As discussed with the applicant during the second Tribunal hearing, this strongly suggests that his mother held Iraqi citizenship from a date well prior to 2011.
113. The Tribunal also discussed with the applicant the fact the delegate’s decision also indicates that he has links to family members in Australia who have been found to have Iraqi documents. While the applicant maintained that it is the family of his uncle’s wife who are Iraqi the Tribunal nevertheless notes his oral evidence indicates he has a maternal aunty and cousins who reside in Iraq. The Tribunal acknowledges that having links to family who are Iraqi or who have re-acquired Iraqi citizenship doesn’t necessarily prove the applicant has Iraqi citizenship himself however when the evidence is considered as a whole the Tribunal is persuaded these family links are further indication the applicant holds Iraqi citizenship.
114. Having carefully considered the available evidence the Tribunal concludes that there are strong reasons for believing that the applicant’s parents re-acquired their Iraqi citizenship sooner than is claimed. Iraqi citizenship laws stipulate that children born to Iraqi citizen fathers can acquire citizenship by descent and the Tribunal considers it plausible that his parents would have pursued their children’s citizenship at the same time as they re-acquired their own Iraqi citizenship. In the circumstances, and as the applicant has also gone to the trouble of producing a counterfeit White Card in order to strengthen his claims, the Tribunal has formed the opinion that he is not stateless but rather that he is an Iraqi citizen and was so before he departed Iran.
115. The Tribunal notes the applicant’s claim that he departed Iran using a fake Iraqi passport and his submission that this was possible because a people smuggler paid money to ensure his safe passage out of the country. While the Tribunal acknowledges the potential for corruption, in light of the above findings it does not accept he had the need to depart Iran using a fake Iraqi passport. The Tribunal is satisfied that the applicant departed Iran using a genuine Iraqi passport and that on arrival in Australia he was not a stateless person as is claimed.
116. It is also not disputed that the applicant twice returned to Iran, the country in which he claims to fear harm, after being granted a Protection visa, although the applicant notes the trips were made using his Australian travel document.   He claims that he went to visit his sick mother and that he had no intention to resume living in Iran. In light of the concerns expressed herein, and given the lack of any verifiable evidence to support his mother was sick on those occasions, the Tribunal does not accept the explanations given for his returns, even using his Australian travel document. Given the above finding that the applicant is a documented Iraqi citizen and as he has twice returned to Iran where he claims to have experienced persecution due to being a stateless Faili Kurd, the Tribunal is not satisfied the applicant has a genuine fear of returning to Iran for the reasons claimed. In forming this view the Tribunal has also placed weight on the fact his parents, who now have reclaimed their Iraqi citizenship, have chosen to continue living in Iran despite the difficulties he claims he and his family faced living there.
117. For these reasons the Tribunal is satisfied that when the applicant arrived in Australia he was an Iraqi national and not stateless as were members of his family who remained living in Iran. The Tribunal finds that he did not genuinely fear returning to Iran as is claimed. The Tribunal is satisfied that when he applied for the Protection visa he provided incorrect answers to the questions set out in the Notice of Intention to Consider Cancellation. Further the Tribunal is satisfied that the applicant has provided a counterfeit document.
118. The Tribunal finds that there was non-compliance with s.103 and 101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
119. 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).
120. 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
121. The applicant maintains that he has not provided any incorrect information. However, for the reasons discussed above the Tribunal considers the correct information at the time of the applicant’s application for a protection visa is that he was an Iraqi national and not stateless as claimed. Based on his willingness to return to Iran, the country in which he claimed persecution and continues to fear harm in, it also appears he did not fear harm in Iran as is claimed.
The content of the genuine document (if any)
122. The applicant maintains that he has not produced any bogus documents. However, for the reasons discussed above the Tribunal considers his White Card is counterfeit.
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
123. The applicant was granted a Protection visa on the basis of his claim to be a stateless Faili Kurd at risk of serious harm in Iran and Iraq. However for the reasons discussed above the Tribunal finds the applicant produced a bogus White Card and is in fact an Iraqi national and therefore not stateless. The Tribunal is satisfied the decision to grant him a Protection visa was based, wholly or partly, on incorrect information and a bogus document.
124. The Tribunal considers that if the correct information had been presented at the time of application the applicant’s claims would have been assessed against Iraq on the grounds that he is a Faili Kurd who had re-acquired his Iraqi citizenship but had never lived in Iraq. While the visa grant decision emphasised the difficulties faced by Faili Kurds returning to Iraq with no formal citizenship documentation it nevertheless also relied on country information which was relevant at the time and indicated that Faili Kurds adhering to the Shi’ite branch of Islam were generally targeted and subjected to discrimination, harassment and serious human rights abuses by non-state agents.   The decision maker found that the applicant had an objective basis for his fear of returning to Iraq.
125. Therefore while the visa grant decision was based in part on incorrect information and a bogus document provided by the applicant, the Tribunal has considered the likelihood that a decision to grant him a Protection visa may also have eventuated if he had been truthful in his application.
126. The Tribunal gives this consideration some weight in the applicant’s favour.
The circumstances in which the non-compliance occurred
127. Based on his date of birth and arrival date in Australia the applicant was [age] years old when he made his application for a Protection visa. The Tribunal accepts he lived for the most part of his life in Iran without the rights afforded to Iranian nationals. While the Tribunal does not consider the situation was so serious as to amount to serious or significant harm, given his parents are living in Iran voluntarily and he twice returned there himself after being granted a Protection visa, it nevertheless accepts his circumstances placed limitations on his ability to secure a stable and sustainable future for himself in Iran and also caused him to fear returning to Iraq. It is regrettable that the applicant has continued to assert that there has been no non-compliance and the Tribunal concurs that the provision of incorrect information and a bogus document is not excusable. However, the Tribunal finds it plausible the applicant likely acted on poor advice given to him on his journey to Australia and also finds it probable that his decisions were contributable to his desperation to secure a more stable and viable future for himself at a pivotal time in his life. The Tribunal gives this consideration some weight in his favour.
The present circumstances of the visa holder
128. The applicant informed the Tribunal that he was the victim of a physical attack by unknown assailants in Sydney which resulted in him sustaining a significant [injury]. He said that his injuries have impacted his ability to work and the Tribunal accepts this. Currently he receives a Centrelink Carer’s Benefit but now that his recovery is progressing he is currently seeking other paid employment.
129. The former Tribunal’s concerns about the applicant’s relationship are acknowledged but having had the advantage of taking evidence from his partner and her children the Tribunal accepts the applicant’s relationship has endured and is now of seven or more years duration despite that they do not live together or have any financial commitments together. Based on their oral evidence, the Tribunal accepts and finds it plausible that they have felt constrained in their ability to progress their relationship by the uncertainty of what will happen to the applicant if his Protection visa is cancelled.   The applicant and his partner’s sons confirmed that they regularly spend time together with him and that the applicant takes them to events and helps them out in other ways as needed. The Tribunal considers they obtain emotional support from the applicant and hold him in high regard given their expressed support for their mother marrying the applicant if she so chooses. The Tribunal accepts that the applicant’s removal from Australia would be disruptive and distressing for the applicant, his partner and the children. The Tribunal gives this consideration some weight in the applicant’s favour.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
130. Regrettably the applicant continues to maintain he hasn’t provided incorrect information or bogus documents despite the available evidence indicating otherwise.
Any other instances of non-compliance by the visa holder known to the Minister
131. There are no other known instances of non-compliance and the Tribunal give this some weight in favour of the visa not being cancelled.
The time that has elapsed since the non-compliance
132. Ten years have elapsed since the non-compliance and in that time the applicant has learnt English and established a life for himself in Australia. The Tribunal considers ten years to be a significant period of time and has given this consideration some weight in his favour.
Any breaches of the law since the non-compliance and the seriousness of those breaches
133. There is no information that the applicant has breached the law in any way since the non-compliance and the Tribunal gives this some weight in his favour.
Any contribution made by the holder to the community.
134. The applicant claims and the Tribunal accepts, that prior to his injury he was providing free [lessons] to children in the community. The Tribunal accepts he would still be contributing to the community in this way if it were not for his physical injury. The Tribunal has given this some weight in favour of the visa not being cancelled.
135. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
136. The Tribunal has also considered the Departmental guidelines, which include the following relevant factors in this case:
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.
The Tribunal accepts that if the visa is cancelled the applicant would be barred from making further visa applications. The Tribunal accepts he would be liable to detention. However, it would appear he either has or could obtain a passport or other travel document and return to Iraq and be admitted to the country.
Whether there would be consequential cancellations under s.140
137. The Tribunal is satisfied that there would be no consequential cancellations under s.140 if the visa is cancelled.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
138. The applicant claims he can neither return to Iran or Iraq. The Tribunal has been unable to conclude the applicant is an Iranian national and but accepts he is an Iraqi national.
139. In the various written submissions it is noted that:
-    The Kurdish population in Iran and Iraq has always been a victim of serious human rights abuses. In Iraq they are discriminated against by Iraqi officials because of their religion (Shi’a Islam) and also their ethnicity. In the 1970’s Faili Kurds were expelled from Iraq on allegations that they were Iranian nationals. They were also accused of being spies for Iran, giving the Ba’athist Party permission to have them expelled from Iraq. The 1990’s saw a decree that would strip all Faili Kurds of their citizenship. Their properties were seized and around 220,000 and 300,000 Faili Kurds were sent to Iran they were subject to exile and statelessness.
-    The 1991 Kurdish uprising resulted in around 2 million refugees. The Iraqi government went ahead and expelled even more Kurds and other ethnic groups out of Iraq, and torture and imprisonment was common.
-    After Saddam Hussein’s government was broken down in 2003 the Iraqi government took steps to restore the rights of Kurdish people in Iraq. In 2006 the law that stripped all people of their citizenship was revoked and those people were able to have their citizenship reinstated. Since then around 100,000 people have had their citizenship returned to them. These groups have included Faili Kurds. However, it is reported that the process of reacquiring Iraqi citizenship is a long process.
-    The expectations of many of those who have managed to return have not been satisfied, with many of their homes occupied, and receiving threats of death if they were to come any closer. From 2006 to 2014 Prime Minister Nouri al Maliki attempted to limit the powers of Kurds and Sunnis. Those actions resulted in the rise of Islamic State and in making active the Kurdish voices which has led to the Kurdish aim for their own separate state.
-    In reference to a possible return to Iran it is submitted that the applicant fears that he would be significantly harmed on the basis of his membership of a particular social group, namely returned asylum seeker from a Western country. The applicant is Kurdish and this would clearly add to the element of ‘failed asylum seeker from a Western country’ to an extent that harm, persecution as well as discrimination will be more probable and certain.
-    The applicant cannot return to either Iran or Iraq. He has spent most of his life in Iran and although he would be aware of the culture, he is not Iranian and he would not be able to work or live in a stable environment and he may face ill-treatment by the Iranian authorities. Since his arrival in Australia he has established a life here, has learnt English and has become accustomed to the freedoms and cultures in Australia. He will not be able to have the same experiences he does here. He has been a law abiding citizen.
-    The applicant does not know how to speak any Kurdish dialect, nor has he ever been to Iraq in his life. He is completely unaware of the political and social landscape of Iraq and is also completely unaware of how to live there. He does not know the place at all, and he will have nowhere to stay. Country information shows how unstable Iraq still is even after the war and especially for those who are Kurdish. Kurdistan in Iraq will not be a viable option for the applicant as it is not a state, and it is currently unstable and his safety and prosperous life is not guaranteed there. Also he is a Faili, Shi’a Kurd meaning he may also face discrimination there from those who are not believers of Shi’a Islam.
-    Iraq has seen civil unrest for its own domestic issues with citizens protesting against the government where they have been demanding social and political change. Wide spread corruption and high unemployment has resulted in a decline in the quality of life in Iraq with many citizens not having access to basic needs such as water or adequate living conditions.

140. In relation to Iraq, DFAT’s country information report, Iraq dated 9 October 2018 provides the following:
Faili Kurds are Shi’a, unlike most other Kurds who are Sunni. Previous (Sunni-dominated) governments treated Faili Kurds with suspicion and hostility. Since 2003 Faili Kurds have returned from Iran to Iraq, and mainly live along the border with Iran, including in the provinces of Basrah and eastern parts of Diyala, Wasit and Maysan. Faili Kurd communities also live in Baghdad and may live in other areas. While most were initially stateless on their return to Iraq, many have now been able to regain their citizenship. Legislation to return citizenship is now in place, although the process can be administratively complex if an individual lacks sufficient documentation to demonstrate Iraqi origin.

Many Faili Kurds who have not regained their citizenship fear official discrimination based on their lack of documentation. Local NGOs attribute this fear to a lack of awareness among Faili Kurds of their rights. The federal government and the KRG have taken numerous steps to protect Faili Kurds, including provision of financial compensation and restitution of employment (although the deteriorating economic situation has affected this). Recovery of property that was confiscated or occupied when Faili Kurds were expelled is administratively complex but legal processes exist to facilitate this. Courts have approved the return of properties, although opposition from current occupants has prevented some Faili Kurds from actually reclaiming their property.
Local sources claim that societal discrimination against Faili Kurds continues to occur, and that communities dominated by other ethnic or religious groups do not welcome Faili Kurds. This ostracism is also faced by other groups in areas where they are the ethnic or religious minority. The current number of Faili Kurds is difficult to estimate as many do not readily identify themselves by their ethnicity.
DFAT assesses that Faili Kurds face a low risk of official discrimination although this rises for Faili Kurds who remain stateless. DFAT assesses that Faili Kurds face a low risk of societal discrimination.

141. In its 2018 report DFAT notes that there are several factors influencing the security situation in Iraq, including actions of remaining ISIL fighters and other armed groups and historical intra-Shi’a and intra-Sunni tensions. In the Kurdistan region, the security situation is influenced by tensions between the federal government and KRG, tensions between different Kurdish political blocs and actions by Turkey and Iran. The Kurdistan region has however experienced lower levels of insecurity than other areas of Iraq.
142. DFAT further notes that a sharp increase in sectarian violence since 2003 has seen some Shi’as leave Sunni areas. Anti-Shi’a violence has reduced in 2018 following the defeat of ISIL however isolated incidents of violence in Shi’a dominated areas of Iraq, claimed by ISIL, continue to occur.
143. As the dominant community in Iraq with a dominant role in the government, Shi’a face little or no official discrimination. DFAT further assesses that Shi’a do not face societal discrimination in Shi’a areas, although they face a moderate risk of violence during significant Shi’a religious festivals and pilgrimages.
144. On conditions for returnees DFAT states it is aware of considerable evidence that Iraqi’s who are granted protection return to Iraq, sometimes only months after securing residency in Australia, to reunite with families, establish and manage businesses or take up or resume employment. The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqi’s, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. DFAT has limited evidence to suggest that voluntary returnees face difficulties in assimilating back into their communities. However, local sources have said 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. Large numbers of Kurds (mainly single males) return to voluntarily to the Kurdistan Region, particularly from the UK and European Union countries. The region’s relative security compared to other areas of Iraq has encouraged returns. As with other areas of Iraq, familial connections are important in the Kurdistan Region. Reintegration, and particularly access to employment and housing is easier for those who have maintained connections in the region.
145. On the available evidence, including the now applicable country information which is outlined above, the applicant has not satisfied the Tribunal that he will face serious or significant harm if he returns to Iraq now or in the reasonably foreseeable future on account of being a Shi’a Faili Kurd or for reason of being a returned asylum seeker. The Tribunal is satisfied that Australia’s protection obligations under s.36(2)(a) or (aa) of the Act would not be breached by his return to Iraq.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
146. The Tribunal accepts that the cancellation of the applicant’s visa may lead to him being removed from Australia to Iraq.
147. The applicant claims, and the Tribunal accepts, that he has never lived in Iraq and that being required to return to Iraq will cause him considerable hardship. He claims and the Tribunal accepts that he is not familiar with the laws and customs, or the social, economic or political landscape of Iraq. It is submitted that if the applicant is required to return to Iraq his safety and well-being cannot be guaranteed.
148. While the ISIL threat has been greatly reduced and Iraq is arguably experiencing increased security at the present time, country information indicates that the situation remains volatile and that conflict continues and still presents a threat of violence to the citizens of Iraq in different parts of the country. In addition, poverty rates are high and many Iraqi’s have difficulty finding employment as well as accessing basic services including health, education and food. While the risk of random and indiscriminate violence and economic hardship may not bring the applicant within the refugee or complementary protection criterion it does however present a dangerous and difficult environment for someone with no local knowledge and experience to return to. Based on his evidence the applicant’s immediate family are living either in Iran or abroad and he has only limited extended family support in Iraq. The Tribunal considers this would further minimise his ability to access security and other necessary support in an already difficult and unsafe living environment.
149. The cancellation of the applicant’s visa will also force him to leave behind the life he has created for himself in Australia. He will lose his relationship and community he has established here in the last ten years and will cease to have the security and stability afforded to him in Australia. The Tribunal accepts this will have a detrimental emotional impact upon the applicant which will exacerbate the difficulties he is likely to encounter if required to return to an unfamiliar and often unsafe country.
150. The Tribunal accepts that these hardships will be substantial for the applicant and has given this considerable weight in favour of the visa not being cancelled.
CONCLUSION
151. Non-compliance and the abuse of the visa system are serious matters, however, the Tribunal is required to take account, where relevant, of a range of discretionary considerations. As noted above the Tribunal gives weight to what may have occurred if the correct information was provided in the application; to the applicant’s behaviour since the non-compliance occurred; to the lengthy period of time he has spent in Australia; to his willingness to contribute to the community; to his long standing relationship with his partner and her two children and to the inevitable and not insignificant hardship he will endure if he is required to return to Iraq. While on their own these individual considerations may not be considered sufficient to avoid cancellation of the visa, when they are considered cumulatively they persuade the Tribunal that despite the seriousness of the non-compliance, in this case the visa should not be cancelled.
152. 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. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
153. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Tania Flood
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.

[2020] AATA 2093

4 March 2020

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