1811165 (Refugee)

1811165 (Refugee) [2018] AATA 5738 (19 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1811165
COUNTRY OF REFERENCE:                  Iraq
MEMBER:David McCulloch
DATE:19 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 19 December 2018 at 11:20am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect information in application –voluntary return to Iraq – inconsistent claims whether Shia or Sunni Muslim – imputed political opinion – father worked for outspoken critic of militias – religion – Sunni Muslim – assaulted by Shia militia – close relative killed – credibility issues – overall consistency of evidence – effect of trauma and stress – decision under review set aside
PRACTICE AND PROCEDURE – similar claims and joint witness – joint hearing with brother
LEGISLATION
Migration Act 1958 (Cth), ss 99, 101, 107, 108, 109
CASES
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect answers in his application form for the protection visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 13 December 2018 at 9:30 am to give evidence and present arguments.
A protection visa granted to the applicant’s brother, [Mr A], has also been cancelled in a decision dated 26 March 2018 of the same delegate of the Minister who cancelled the applicant’s protection visa. A review of that decision by the Tribunal has also been sought by [Mr A] (AAT reference number 1811152). The issues in relation to both reviews are substantially similar. Both the applicant and [Mr A] returned to Iraq (at different times) for claimed family reasons. Both the applicant and [Mr A] refer to the same events in Iraq that occurred in 2011 and belonging to the same Muslim denomination as being the reasons why they left Iraq and why they fear returning. Both the applicant and [Mr A] had proposed to be witnesses in each other’s hearings. There were witnesses proposed in the hearings, including one witness, [Sheikh B], who would be giving evidence for both the applicant and [Mr A].
Given the connection between the applicant and his brother, the similarity in evidence and issues, and a joint witness, the Tribunal determined to hold a joint hearing of both applications. Therefore [Mr A’s] cancellation decision was heard in the combined hearing that took place on 13 December 2018 at 9:30 am.
The Tribunal received oral evidence at the hearing from [Sheikh B] (for both the applicant and [Mr A]), [Ms C], the applicant’s wife (for the applicant) and from [Mr D] (for [Mr A]). The Tribunal as also noted the evidence of [Mr A] in the hearing as relevant to the applicant’s claims.
The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
The Tribunal has made a separate decision relating to [Mr A].
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Was there non-compliance as described in the s.107 notice?
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 sent on 15 September 2017 was non-compliance detailed as follows, including the response of the applicant:
Sections of Subdivision C with which it is considered the visa holder has not complied:
Section 101. Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that: (b) no incorrect answers are given or provided.
By operation of s99 of the Act, 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.
Evidence of non-compliance:
On [date] October 2011, the visa holder travelled to Australia by boat without any visa and was classified as an Illegal Maritime Arrival.
On 3 May 2012 the visa holder applied for a Protection (subclass 866) visa. As part of this application, the visa holder provided a Form 866 - Application for a Protection (Class XA) visa. The visa holder provided the following information in Part C of the form (in italics)..
At question 14, the visa holder answered 'Sunni' to the question of 'Your religion.'
At question 42, the visa holder answered 'Iraq' to the question of 'I am seeking protection in Australia so that I do not have to go back to.'
At question 43, the visa holder answered 'Please refer to Statutory Declaration' to the question of 'Why did you leave that country?'
Enclosed in the visa holder's application for Protection visa, was a Statutory Declaration signed by the visa holder on 20 December 2011, which states (in italics):
5.       I left Iraq on about [date] or [date] of September 2011 because I feared being killed by the militia on account of my religion as a Sunni Muslim. I left Iraq with my brother, [Mr A].
6.       I believe the militia are Shia. They would have killed me because l am a Sunni Muslim. The militia are easily identifiable. They are masked and wear black clothes. I have heard that the militia have burned and attacked police stations.
7.       The Shia Muslims and the Sunni Muslims are different. Shia Muslims regularly visit the holy shrines of the Shia Imam, Ali Hussain and Imam Ali Abbas whereas the Sunni Muslims such as me follow the Prophet Mohammad and not the Imam Ali Hussain. Sunni pray with the hands on their chest whereas the Shia prays with their hands by their side.
8.       The members of the Government of Iraq are generally of the Shia branch of Islam just as the militia are Shia. This constrains the Government from taking steps to defeat the militia.
9.       I have heard that one of my school friends, [name deleted] who is a Sunni Muslim, and his father were attacked by the militia when the militia raided their house in [Town 1]. My friend's father 's head was cut off I believe they killed him because he is a Sunni.
10.      My family have been harmed by the militia. My father worked as a driver for a local mosque, [Mosque 1] in [Town 1]. He drove [Imam E] to and from the mosque. The cleric, [Imam E] was a vocal critic of the militia. In one particular speech he said, "The militias treated us unjustly. We suffer under them."
11.      The militia were outside the mosque at the time monitoring the Imam and my father. They could hear what the Imam was saying from the loudspeaker. My father was inside the mosque at the time.
12.      At the end of the sermon the Imam was driven from the mosque by my father. The militia gave chase and fired at their vehicle. My father sustained injuries to his [limbs]. The Imam was killed.
13.      After 1 week the militia arrived at our house. I was at the house with my younger brothers and my mother. They tied my mother and younger brothers, They beat me and asked me where your father is. One of the militia threatened that if your father and brother don't arrive at the house we will kill you and cut your throat. He beat me with and can on the scalp twice. I currently bear the scar. They kicked my ribs and thigh. I currently feel pain in my ribs. I left with [Mr A] and slept at one of [Mr A]'s friend's house.
14.      8 or 10 militia arrived at our house several days later. They killed my brother [Mr A]'s son (claimant crying-no further questions asked about this incident).
15.      I currently urinate blood. I first saw the Doctor about these 2 weeks ago. I have not undergone an ultrasound to date.
16.      My father feared for our life. He helped my brother, [Mr A] and I escape. My father took the rest of the family with him and fled to the countryside.
At question 45, the visa holder answered 'Please refer to Statutory Declaration' to the question 'What do you fear may happen to you if you go back to that country?'
The visa holder's statement provides the following:
18.      I believe if I return to Iraq I would be killed by the militia. They will cut my throat.
19.      My father has been identified as someone who works for and is close to a Sunni Imam and he will continue to be targeted for this.
20.      I have heard that the militia have killed other Shia Muslims. They do not discriminate between older people or younger people.
21.      I will not be able to walk around the streets and feel safe. I would be killed by the militia.
At question 46, the visa holder answered 'Please refer to Statutory Declaration' to the question 'Who do you think may harm/mistreat you if you go back?'
The visa holder's statement provides the following:
23.      I believe if I return to Iraq I would be at real risk of being killed by the militia because of our religious differences. I am Sunni Muslim. The militia are Shia Muslims.
At question 47, the visa holder answered 'No' and 'Please refer to Statutory Declaration' to the question 'Do you think the authorities of that country will protect you if you go back?'
The visa holder's statement provides the following:
24.      The authorities cannot protect me because the militias are very powerful.
25.      The police cannot protect me because the militia are present everywhere. The militia are in control. They own guns and motor vehicles. I have heard that they travel around in convoys.
26.      The Iraqi and American armies are present in [Region 1], however they cannot protect me.
On 23 May 2012, on the basis of this information as well as meeting all other relevant criteria, the visa holder was granted a Protection visa on the basis that he engaged Australia's protection obligations under the Refugees Convention.
Since the grant of the Protection visa, despite the visa holder's claimed fears, the visa holder has travelled to Iraq. Departmental records indicate that between the following dates the visa holder had travelled to Iraq:
·Departed Australia [in] September 2015 and returned [in] February 2016.
Upon his return [in] February 2016, the visa holder was questioned by officers of the Department at [the airport].
During the questioning, the visa holder informed the officers that he had spent approximately 5 months in Iraq to visit family living in Basra; the visa holder also stated that he is a Shia Muslim. Country information suggests that the city of Basra is located in a Shia majority area.
Department officers conducted a baggage search of his personal belongings. Located in the visa holder's property were flight itineraries in his name for travel from [Australian City 1], Australia to Basra, Iraq and return to [Australian City 2], Australia. Located in the visa holder's Titre de Voyage were border entry and exit stamps, confirming he entered the Republic of Iraq [date] September 2015 and exited on [date] February 2016.
The visa holder's intended travel to Iraq was also declared on his outgoing passenger card, signed on [date] September 2015.
At question 14, where the visa holder answered ‘Sunni’ to the question of 'Your religion.' I consider the visa holder's answer to be incorrect because he has since disclosed to Department staff that he is a Shia Muslim.
At questions 41, where the visa holder stated that he was seeking protection in Australia so that he did not have to go back to 'Iraq', I consider this is incorrect because the visa holder voluntarily returned to Iraq for approximately 5 months to his hometown of Basra, where he claimed to have faced persecution from the Shia militia.
At question 43, the visa holder stated that 'I left Iraq on about the [date]or [date] of September 2011 because I feared being killed by the militia on account of my religion as a Sunni Muslim.' I consider this is incorrect information because the visa holder voluntarily travelled to Iraq for a prolonged stay of 5 months after being granted a Protection visa without any apparent issue. Furthermore, upon his return to Australia from Iraq [in] February 2016, the visa holder disclosed to the Department that he is a Shia Muslim, which contradicts his claims for protection on the basis of fear of persecution as a Sunni Muslim.
At question 44, the visa holder stated that 'I believe if I return to Iraq I would be killed by the militia. They will cut my throat’ ‘I have heard that the militia have killed other Shia Muslims. They do not discriminate between older people or younger people,' and 'I will not be able to walk around the streets and feel safe. I would be killed by the militia' The visa holder travelled back to Iraq for a prolonged stay of 5 months after being granted a Protection visa without any apparent issue. I consider the visa holder provided incorrect information in his application for Protection visa because he later disclosed to Department staff upon his return to Australia from Iraq [in] February 2016 that he is a Shia Muslim. I consider therefore that the visa holder did not hold the claimed adverse profile as declared in his Protection visa application.
The visa holder was granted his Protection visa on the grounds that he faced a real chance of harm by the Shia militia of Iraq as a Sunni Muslim. In view of his admission that he is in fact a Shia Muslim and his voluntary return for 5 months to Basra, Iraq where he claimed fear of harm persecution, I consider that the visa holder provided incorrect answers to questions 14, 41, 43, 44, in Part C of your Protection application Form 866. The Protection visa therefore, is liable for cancellation for non-compliance with s101 (b) of the Migration Act 1958.
PART C: DECISION ABOUT NON-COMPLIANCE (S 108)
Section 108 of the Migration Act 1958 provides:
The minister is to:
(a)      consider any written 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.
Does the visa holder agree that there was non-compliance? No
If no, reasons why the visa holder disputes that there was non-compliance:
The visa holder has provided the following information in his response (verbatim):
"I was born in [Town 1] [Region 1] Basra Iraq on [date]. I am the brother of [Mr A]. I also have 2 younger brothers [Mr F] and [Mr G]. My father 's name is [name deleted] and my mother's name is [name deleted]. My father passed away on or about October 2015 while I was in Iraq. My brothers [Mr F] and [Mr G] live in Iraq with my mother, my sister in law and her children (my brother [Mr A]'s wife and children).
I don't remember much about my childhood in Iraq. It is something that I have blocked and don't like to remember. It was a difficult life and we face a lot of discrimination because we are Sunni Muslim. The Shia were in control and were in authority. They targeted the Sunni Muslims a lot. My family and I were targeted. We faced so many problems from because we were Sunni. I couldn't leave the house a lot and I didn't go to school.
I left Iraq with my brother [Mr A] when I was about [age] years old. We had no choice. We had to leave otherwise the Bader Militias were going to kills us. They wanted to kill us because of my father. My father was targeted and continued to be targeted. He went into hiding until the day he passed away. That was his life.
I came to Australia in 2011. My brother [Mr A] got us out of Iraq. I left with him. I arrived to Australia by boat from [Country 1]. We were placed in a [detention centre]. I stayed there until I was granted the Protection (Subclass 866) visa on 23 May 2012. I was with my brother [Mr A].
Life in Iraq
I was very young when I was in Iraq. I stayed home a lot with my mother and my 2 younger brothers. My sister in law, [Mr A]'s wife and their children also lived with us. We lived in our house in [Region 1] which is in Basrah. I remember we were struggling financially and also because we were Sunni Muslims. My father and brother found it difficult to find work because of the severe discrimination the Shia Muslims had against the Sunni Muslims. My brother [Mr A] is a lot older than me. He used to work and help my parents. He would do small jobs like sell fruit and vegetables. Whatever he could find. The Mosque that my father would always attend also helped us by giving us donations. It was a very hard life and it was very hard for us because we were Sunni Muslims.
I remember when I was about [age] years old, my father got a job at the Mosque he used to attend. It was a Sunni Mosque. He became the driver for the Imam of the Mosque. His name was [Imam E]. My father would drive him to the Mosque from his house and back home again. We were always living in fear because we were Sunni Muslims. We were not considered Muslims by the Shia Muslims and we were discriminated against and treated badly. We even had problems seeing a doctor when we were sick We would have to pay large amounts of money so that we could see a doctor and sometimes we never got to. The treatment was very harsh and it was because we were Sunni Muslims. There was always conflict between the Sunni Muslims and the Shia Muslims in the area that I lived in, Basrah Iraq. We were in constant fear.
My father used to go to the Mosque called [Mosque 1] in [Region 1]. The Mosque was in the suburb of [Town 1]. [Imam E] was vocal about the Bader Militia in his sermons. He would say that they are mistreating us and we are suffering under their control.
The Bader Militia had been monitoring the Imam and the Mosque. They knew about his sermons.
On or about May 2011, my father drove the Imam home after he had given a sermon in the Mosque. The Bader Militia followed my father and the Shiek. They fired at them and the Shiek was killed. My father escaped with injuries to his [limbs].
The Bader Militia wanted my father. They came to the house about a week after the incident and they wanted to know where my father and brother [Mr A] were. I was at the house with my mother and my younger brothers. They tied my mother and brother. The Bader Militia beat me. They hit me on the head and in the rib area. I still have the [scar]. They threatened to kill me if my father and brother didn't come back to the house.
It became very dangerous to stay at our house. [Mr A] took me to one of his friend's house and I stayed there. His friends name is [Mr H]. My mother and younger brothers also left the house. My father took them to a farm area on the border of [Region 1] and they stayed there is hiding. My father 's friend owned it and they stayed with him.
The Shia Militia came back to the house. My sister in law and her children were home. They shot my nephew and killed him because he was trying to help his mother from being attacked by them. My nephew [Child I] was younger than me by a few years. He was about [age] years of age when they killed him. It was a very hard time and I knew that we were going to be next to die.
My brother [Mr A] made sure that I was safe. He told me that we were going to leave Iraq and that we couldn't stay because we were in great danger. [Mr A] made all the arrangements for us to leave. I was very young and was just scared of everyone. I couldn't trust anyone at all.
The Move to Australia
It was about 4 months later when [Mr A] and I left Iraq. [Mr A] took me to [Country 1] with him. When we got to [Country 1] we were separated. We came on different boats to Christmas Island I was very scared and I didn't know what to expect. I was very young and alone. I cried a lot. I was [age] year old.
We remained [in detention] until we were granted the Protection visa. We were granted our visas on 23 May 2012.
Protection (Subclass 866) visa in 2012
The DIBP allege that I was not in fear of my life in Iraq because I went back in September 2015. That was approximately 4 years after I had left Iraq. I do not agree with this allegation. The DIBP also allege that I have provided incorrect information in the notification letter to consider cancelling my visa. I stand firmly by my statutory declaration I provided the DIBP with my protection visa application dated 20 December 2011. This is a true encounter of what happened and why I fled Iraq with my brother [Mr A].
The DIBP allege that l am a Shia Muslim and that I do not hold the profile I declared, that is a Sunni Muslim, in my Protection visa application in 2011. I do not agree with this allegation. I do not agree with the DIBP that I provided incorrect information. I am a Sunni Muslim. I have always been a Sunni Muslim and I still follow the faith of a Sunni Muslim.
When I left Iraq in 2011, I was in fear of my life from the Shia group, Bader Militia. I still am in fear of my life. I acknowledge that I returned to Iraq in September 2015. However I spent my time in hiding and went to Iraq for the purpose of seeing my sick father before he passed away. I remained there for a period of 5 months because my father passed away. It was a very hard thing to deal with, for myself and my mother and brothers.
Sunni Muslim
The DIBP allege that l am Shia Muslim based on what I said to the officer of the Department during an interview at the International airport upon my return back from Iraq. I was at [the] airport when I came back from Iraq. I was asked about my religion. I said I was a Muslim, Shia because I was scared to say I was Sunni. There are some people who think that ISIS is a branch of the Sunni Muslim sect.
I have a fear of authorities, I had been living in fear and almost got killed because I was a Muslim Sunni. I didn't want anything like that to happen. When I was approached by the officers at the airport, I did not know what they were going to do. They asked me if I was Muslim and I said yes I am. They asked me if I was Sunni or Shia. And I said Shia. I had just come back from Iraq and I was still grieving over the loss of my father. I was not mentally well I was feeling depressed and I was scared.
The Mosque that my father worked for [Mosque 1], is known to be a Sunni Mosque. The Imam that my father was the driver for was a Sunni Muslim. My father had always gone to that Mosque and practiced as a Sunni Muslim. My family and I have always followed the Sunni school of though. I am a Sunni Muslim.
[Date] September 2015 — Trip to Iraq
It is correct that I travelled to Iraq on or about [date] September 2015. I came back to Australia on or about [date] February 2016. I came to Australia on [date] October 2011. I had been away from Iraq for almost 4 years. I did not want to go back to Iraq because I knew my father and my family were still in hiding and it would be dangerous but I felt I had no choice but to go.
I went to see my parents. My mother has been sick for many years and my father was not well at all. I spoke to them on the phone and told me to go see them. My father told me that he was going to die soon and that he wanted to see me. I was scared but I had to go.
I went to the airport and [Mr J], my father's friend, helped me out of the airport. He knows people at the airport and paid them money to help me leave the airport without contacting the authorities. [Mr J] took me in the car. It was a very long drive and we got to an area that was like a farm. I saw my parents and I stayed there.
After about a month or so of being in Iraq, my father passed away. I stayed with my mother and younger brothers after my father passed away. I was the eldest son in Iraq and I couldn't leave my mother and younger brothers. I also was not coping well with my father's death. On or about February 2016, my mother told me that she is scared for me and that I needed to leave. I knew she was right l am not sure the authorities found out about my father's death. I was very depressed I came to Australia and did not really socialise with anyone. I was still upset and grieving over my father's death."
A submission has also been provided by the visa holder's migration agent, which includes the following information:
·He travelled to Iraq as he felt he had no choice after his parents request.
·That after his arrival in Iraq he was driven a long distance to a farm where his family were staying.
·Under Iraqi culture, there is a 40 day mourning period that must be observed when a parent passes away.
·His mother suffers from a serious [medical] condition.
·The visa holder is a Sunni Muslim and he stated he was Shia due to his fear of authorities and he was only [age] years of age at the time he was questioned by the Department's officers.
·The visa holder is still in fear of his life.
·That his family in Iraq are in hiding.
·The authorities in Iraq would not protect him as he is a Sunni Muslim and wanted by the authorities.
In support of his claims the visa holder has provided the following documents:
·A translated letter from [Sunni Organisation 1] dated 21 December 2011. This letter states that "We hereby confirm that citizen [Mr A] is a member of the Sunni community in our province; he is one of those who encountered death threats and displacement particularly after his son [Child I] was murdered on [date]/05/2011. Following this tragedy he survived attempts on his life and he and his family were displaced from their home by force." According to the submission email, [Mr A] is the visa holder's father.
·A 'certificate of death' from the Ministry of Health, Republic of Iraq dated [May] 2011. This certificate states that [Child I] born [date], son of [Mr A] and [Ms J] was deceased as of [date] May 2011 from bullets penetrating the body, shot by an unknown person.
·A 'certificate of death' from the Ministry of Health, Republic of Iraq dated [date] October 2015. This certificate states that [the applicant's father], born [date], son of [parent’s names deleted] was deceased as of [date] October 2016 (sic) and that the cause of death was Hypertension.
·A translated letter from [Sunni Organisation 1] dated 4 October 2017. This letter states "We hereby confirm [Imam E] the Imam of [Mosque 1] located in [Region 1] encountered an assassination attempt on his life on [date]/05/2011. On that date, militiamen opened fire on him."
·A letter from [an Australian association] dated 16 October 2017. In this letter the Imam of [Suburb 1] Prayer Hall states that the visa holder attends their Sunni Friday sermon from time to time and that they have not heard anything bad about him since he started attending in 2016.
·A translated letter from the Director of [Sunni Organisation 1] dated 4 October 2017. This letter states "We hereby confirm that citizens [Mr A] and [the applicant] are members of the Sunni community in our province; they encountered death threats, assassination attempts and forced displacement."
·A letter from the Mayor of [Town 1] dated [October] 2017. This letter states "We hereby confirm that citizens [Mr A] and [the applicant] of [City 3], [Region 1], were persecuted by (armed) militia that mushroomed in Iraq. They were constantly chased by terrorists and on [date]/05/2011 terrorists succeeded in murdering [Child I]. The persecution they encountered on ground of their Sunni faith led them to flee Iraq."
·A marriage certificate certifying that [the applicant] married [Ms C] ([date of birth]) at [address deleted], on [date] April 2017 and the celebrant was [a named person].
[Assessment…]
I consider the visa holder has provided incorrect information in association with his application for a Protection visa as follows:
·In response to question 14 of the form 866C the visa holder stated that his religion is ‘Sunni’, I consider this information is incorrect as the visa holder has since advised the Department that he is a Shia Muslim and this is supported by his marriage having been conducted by a Shia cleric.
·In response to question 41 the visa holder stated that he was seeking protection in Australia so that he did not have to return to Iraq. I consider this information is incorrect as the visa holder has since returned to Iraq and specifically Basra for approximately five months without apparent harm or incident.
·In response to question 43 the visa holder stated that he left Iraq as he feared being killed by militia groups on account of his being a Sunni Muslim. I consider this information is incorrect as the visa holder has since return to Iraq for a significant period of time without apparent harm or incident. Further, the visa holder has disclosed to the Department that he is a Shia Muslim and this claim is supported by his marriage having been conducted by a Shia cleric.
·In response to question 44 the visa holder claimed that he could not return to Iraq as he feared being killed by militia groups on account of his being a Sunni Muslim. I consider this information is incorrect as the visa holder has since return to Iraq for a significant period of time without apparent harm or incident. Further, the visa holder has disclosed to the Department that he is a Shia Muslim and this claim is supported by his marriage having been conducted by a Shia cleric.

No issue has been raised by the applicant as to the validity of the s.107 notice. The Tribunal finds that the notice is valid.
Various statements and submissions have additionally been provided to the Tribunal:
·Statutory Declaration of the applicant dated 5 December 2018
·Statutory Declaration of [Mr A] dated 6 December 2018
·Copy of original and translation of the death certificate of the applicant’s father indicating the date of death as 15 October 2015
·Statement dated 6 December 2018 of [Sheikh B]
·Statutory Declaration dated 10 December 2018 of [Ms C] (the applicant’s wife)
·Medical information and reports relating to the applicant’s wife
·Submission dated 12 December 2018 of the applicant’s migration agent on behalf of both the applicant and [Mr A].
Assessment
While civil law concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in administrative decision-making, in cases where the existence of certain facts forms the basis for the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision maker must be satisfied about the existence of the facts before exercising the power. In this respect, the obligation is on the decision maker to be so satisfied and not on the former visa holder to establish the facts or grounds do not exist: refer to Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ) at [25] and [32].
In deciding whether the ground for cancellation is made out, it is appropriate for the Tribunal to have regard to the nature of the allegations and the gravity of the consequences: Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Flick and Perry JJ) at [120]. The cancellation of a protection visa is a very serious matter, entailing as it does the denial of a permanent ability of the applicant to reside in Australia and having been granted on the basis of a risk to the applicant of serious or significant harm to the applicant on return to his home country. As such, any factual findings should be based on logical and probative material and not speculative information or inexact proofs. This is the approach the Tribunal has taken in the review of the evidence and in making a finding.
The Tribunal has listened to the recording of the Protection Obligations Evaluation interview that took place between the applicant and a Departmental officer on 25 December 2011. In addition the Tribunal has listened to the Protection Obligations Evaluation interview that took place as part of the separate protection visa application by the applicant’s brother, [Mr A], on the same day with the same Departmental officer. The protection visa applications by both the applicant and his brother were determined by the same Departmental officer.
In listening to both interviews, the Tribunal has noted the consistency between the detail of the claims of the applicant and his brother. The responses to questions by both the applicant and his brother were spontaneous, natural and lacking any sense of embellishment. The applicant and his brother provided mostly consistent responses to most key issues as well as peripheral issues of detail.
In terms of the consistency on matters of detail not central to the claims but telling as to truthfulness, both the applicant and his brother were consistent in evidence that the mosque that the applicant’s father was the driver for was located only a short distance from the family home. Both gave consistent evidence that the preacher who the applicant’s father was the driver for was not the permanent Imam of the mosque. He would attend the mosque on Fridays to preach, and on some other days, but was not there on a full-time basis.
In the Tribunal hearing with respect to the cancellation decision, the Tribunal explored with the applicant and his brother, [Mr A], details as to what happened in Iraq in 2011 and in the lead-up to their departure for Iraq. The Tribunal also explored with the applicant and [Mr A] their respective return visits to Iraq, why they made the decision to return, and what they did while they were there.
The applicant and his brother were broadly consistent and convincing in both the original interviews and in the Tribunal hearing as to the key claims about what occurred in 2011 and their practice as Sunni Muslims in Iraq and Australia. They were consistent and convincing to the Tribunal in claims of their father being injured after militias attacked the car in which the preacher of the mosque was being driven by the applicant’s father, resulting in the preacher being killed. There was consistent evidence that this incident caused the applicant’s father to go into temporary hiding. Both were consistent that a week after the incident, the militia came to the family home because they had assumed that the applicant’s father had been killed but had not seen a funeral in relation to him. They had an adverse interest in the applicant’s father and wanted to find out his situation. There was consistent evidence that the applicant was physically attacked by the militia during this visit.
Both applicant and his brother provided similar and consistent detail in the hearing of being able to exit the airport at Basra, on their respective return visits from Australia, through arrangements that that family friend, [Mr J], had facilitated through bribery. This required both the applicant and his brother on their respective visits to wait in an area before entering immigration security to be approached by an individual who took their passports and arranged for the passports to be stamped and returned to them, prior to them both exiting the airport. Both the applicant and his brother indicated that they had brought money with them to pay [Mr J] at least some of the bribery costs.
Both the applicant and his brother indicated that during their respective visits from Australia, they only remained at the farm on the outskirts of Basra where their families were living.
Both the applicant and his brother in the Tribunal hearing and interviews gave convincing and consistent evidence as to growing up Sunni Muslim in Iraq in a predominantly Shia neighbourhood. Both the applicant and his brother gave evidence in the hearing of attending a number of Sunni Muslim mosques in Australia, but with that religious observation being sporadic. Both gave evidence in the hearing that following the death of their father in 2015, they increased their religious observation and attendance in Australia.
[Sheikh B] gave evidence in the hearing as a witness to by telephone. He confirmed a written statement dated 6 December 2018 that had been provided to the Tribunal. In the hearing, he indicated that both the applicant and his brother began attending the [Suburb 1] Prayer Hall of which he was Imam from early 2016. They attended from time to time at least up until [Sheik B] ceased being Imam in December 2017. [Sheik B] indicates that the Prayer Hall observes Sunni Muslim thoughts and traditions and that as far as he was aware, all attendees were Sunni Muslims.
The Tribunal notes that this evidence by [Sheik B] is significantly probative of the claims by the applicant and his brother to be Sunni Muslims. It constitutes independent third-party evidence that the applicant and his brother were practising as Sunni Muslims from the early part of 2016. This significantly predates the Department flagging concerns to the applicant and his brother when it provided respective notices of intention to cancel the visas in September 2017. The delegate who cancelled the protection visas speculated that Sunni Muslim practice could have been ‘staged’ by the applicant after the applicant revealed to immigration officials in February 2016 that he was a Shia Muslim. The Tribunal is not satisfied of this. In the absence of the government flagging any immediate adverse consequences as a result of this admission, the Tribunal does not think that this would have alerted the applicant or his brother to a potential cancellation of the protection visas causing them to fraudulently undertake different religious practices.
The Tribunal notes the following credibility concerns with the applicant and his brother’s claims. In relation to their religion, as indicated, their claim to be Sunni Muslim is contradicted by the applicant indicating to immigration officials on return to Australia in February 2016 that he was a Shia Muslim. Written statements on behalf of the applicant, and as indicated by him in the hearing, are that he said he was Shia in fear, as Sunni Muslims are associated with ISIS and that a truthful answer could implicate him to immigration officials. He also indicated that he was not in a proper frame of mind because of trauma involving the death of his father.
The additional credibility concern relating to the applicant’s claimed religion is the fact that, when the applicant was married in 2017, he was married by a Shia Muslim cleric. It has been explained in written statements and in the hearing that this was because the applicant’s wife to be, [Ms C], was a Shia Muslim and that she wished to be married by a Shia cleric.
[Ms C] gave evidence to the Tribunal as a witness consistent with written claims and submissions in this respect. She confirmed that her husband is a Sunni Muslim and that this was not a barrier to their relationship. She gave evidence that it is not unusual in Iraq, particularly in Baghdad, for there to be marriages between Sunni and Shia Muslims. The applicant similarly gave evidence that their love for each other was the paramount issue and different religious denominations were not an issue.
In relation to the visit by the militia when the applicant was hit in 2011 on the head there is an inconsistency in evidence as between the Protection Obligation Interviews of both the applicant and [Mr A].
The applicant indicated in interview that [Mr A]’s wife and children were not in the family home when the militia visited and attacked him and threw his mother to the ground. In contrast, when [Mr A] gave evidence in his interview, he indicated that they were present. It is noted that [Mr A] was not at the home when the militia visited, but he might have expected that his wife would have informed him if she and the children had been present. [Mr A] speculated in his interview, when the inconsistency was put to him, that the inconsistency in evidence of his brother can be explained by his brother’s age.
The overarching credibility concern which the delegate used to determine that the applicant and his brother’s protection visas should be cancelled based on incorrect information was the return visits by the applicant and his brother for a period of five months and eight months respectively. It is significantly on this basis that it is found that the underlying claims of both the applicant and his brother are untrue. Claims by the applicant and his brother that they could not return to Iraq must be untrue because they did return.
The Tribunal has very carefully considered the respective return visits by the applicant and his brother, for five months and eight months respectively, as adverse to the applicant and his brother in considering whether incorrect information was provided in their respective protection visa applications. It has also taken into account the adverse credibility issues identified on a cumulative basis. These matters are not insignificantly adverse to the applicant and his brother.
However, these adverse matters are outweighed in the Tribunal’s view, by the convincing nature and broad consistency with the claims by the applicant and his brother over time and corroborative evidence relating to religion. The applicant and his brother, both in the Protection Obligation Evaluation interviews and in the Tribunal hearing, were candid and direct in evidence to the Tribunal without significant hesitancy or equivocation. There has been overall consistency of most key claims in the interviews and hearing and with written claims.
In relation to the religion of the applicant and his brother, the Tribunal is satisfied that they are Sunni Muslims. The Tribunal accepts intimidation and stress for the applicant, in the context of his father just dying, in telling immigration officials in Australia that he was Shia Muslim instead of Sunni Muslim. The Tribunal accepts that the applicant operated from a cultural perspective that to reveal he was a Sunni might attract adverse attention from immigration officials. The Tribunal found the evidence of the relationship between the applicant and his wife and their respective Sunni Muslim and Shia Muslim beliefs and practices as convincing. The Tribunal accepts that the applicant’s wife wished to be married in a Shia Muslim ceremony.
The Tribunal has also taken into account supporting documents from Iraq provided by the applicant, attesting to him and other family members being Sunni Muslims. This provides some reinforcement for the nature and consistency of other evidence. However, the Tribunal has taken into account the ready ability to obtain fraudulent documents in Iraq. This has limited the weight given to these supporting documents.
In terms of claims of incorrectness on the basis of religion, as the Tribunal considers that the applicant is Sunni Muslim, it does not consider that he has provided incorrect information in the application for the protection visa in this respect.
In terms of claims as to what happened in 2011, the Tribunal does not consider the inconsistency as between the applicant in his brother as to whether his brother’s family were present when the applicant was attacked as a significant inconsistency. The Tribunal considers that this could well be explained by confusion, flaws in memory or the passage of time, compounded by trauma and stress. An inconsistency on a minor issue of this nature is not fundamentally undermining of the truth of the applicant’s claims or those of his brother. It is a matter of tangential relevance. The Tribunal takes into account the age of the applicant and the surrounding stress of the situation for the applicant, noting that he was physically attacked in the incident. The Tribunal accepts imperfection and flaws in memory.
The s.107 notice essentially states that the applicant has provided incorrect information in his application form for the protection visa because he claims to have a fear of returning to Iraq, and that if he does so he may be seriously harmed or killed, yet he returned to Iraq. The applicant confirmed in the Protection Obligations Evaluation interview that he could not return to Iraq because he would be killed.
As independent information makes clear, the overall security situation in Iraq is significantly problematic in a way that affects many segments of the Iraqi population. Danger exists for both Shia and Sunni Muslims from militias of opposing religious beliefs. The security situation is also significantly fluid.
In relation to the return of the applicant to Iraq, the Tribunal does not consider that this in itself undermines fears of the applicant in returning to Iraq on a permanent basis and on a basis on which he is able to openly and freely participate in society and practise his religion. The Tribunal accepts that the applicant on his return to Iraq for a number of months was cautious and discreet in his whereabouts and interactions in society generally. The Tribunal accepts the very considerable pull on the applicant to return to Iraq despite significant concerns, because of family issues, most particularly the impending death of his father. It is quite a different thing for the applicant to return discreetly to Iraq for a matter of months and live very cautiously and discreetly, as compared to returning permanently and being able to live openly, including practising his religion.
The Tribunal is not satisfied that the applicant or his brother provided information in their protection visa application forms that was incorrect concerning the claimed events of 2011 or otherwise. The Tribunal is satisfied that the applicant’s father was the driver for a Sunni Imam and was injured in an attack which killed the Imam. The Tribunal is satisfied that militia subsequently visited the family home and injured the applicant. The Tribunal is satisfied that shortly thereafter, the militia returned and killed the applicant’s brother’s son. The Tribunal is satisfied that the applicant went into hiding with his brother’s friend and the remainder of the family sought refuge at the farm. The Tribunal is satisfied that the applicant and his brother left Iraq for these reasons.
Therefore, in providing information to this effect in the application form for the protection visa the Tribunal is not satisfied that the applicant has provided incorrect information.
The Tribunal does consider that the applicant has exaggerated in his application form and supporting statement and in subsequent interviews the categorical and unqualified nature of his claim inability to ever return to Iraq. That follows from the return of the applicant to Iraq for some months. However, the Tribunal is not prepared to find that that results in the applicant as having provided incorrect answers in his application form. It might not be seen as unusual that an applicant will somewhat embellish claims and fears of harm and indicate an unqualified inability to return to Iraq. Embellishment is not unlikely even where there are claims which without embellishment would meet the criteria for protection. The Tribunal is not satisfied that this exaggeration amounts to the provision of incorrect information, taking into account the threshold that the Tribunal must reach, outlined earlier, to be satisfied of incorrectness for the purpose of cancellation decisions.
Considering all of the evidence, and in all of the circumstances, the Tribunal is not persuaded that the applicant has provided incorrect answers as claimed on the various responses in the protection visa application form.
For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
David McCulloch
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.

[2018] AATA 5738

19 December 2018

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