1811201 (Refugee)

[2019] AATA 5413

1811201 (Refugee) [2019] AATA 5413 (10 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811201

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Melissa McAdam

DATE:10 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 10 May 2019 at 5:13pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iraq – imputed political opinion and non-Islamic behaviour – perceived support for the Iraqi communist Party – consuming and distributing alcohol – false identities – best interest of child – criminal convictions – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101-105, 107, 109, 140, 424AA

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

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

2. The delegate cancelled the visa on the basis that the applicant had not complied with s.101 of the Act because he provided incorrect answers in his visa application form.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

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

   Background

4. The applicant was granted a Protection visa on 14 December 2014.

   NOICC

5. On 1 December 2017 the Department sent a ‘Notice of Intention to Consider Cancellation under s.109 of the Migration Act 1958’ (‘NOICC’) to the applicant. On 6 February 2018 the Department amended the NOICC and re-issued it to the applicant. Relevant parts of the NOICC stated that:

   -The delegate considered that the applicant had not complied with section 101 of the Act which states that a “non-citizen must fill in  his or her application form in such a way that …all questions on it are answered … and … no incorrect answers are given or provided.”

   -In his Form 866C (Protection visa application form) the applicant provided the following information:

   i.Question 1: What is your full name?

   Family name: “[Name 1 surname]”.

   Given names: “[Name 1 given names]”.

   ii.Question 4: What other names are you known by [etc];

   Answer: “N/A”.

   iii.Question 7: Date of Birth

   Answer: “[Date 1]”.

   iv.Question 27: Date of arrival in Australia

   Answer: “[date]-Feb-2011”.

   v.Question 28: Details of your current travel document

   Did not answer.

   vi.Question 29: Give details of the travel document you used to enter Australia

   Did not answer.

   vii.Question 30: Have you ever had, or used, any other passport or travel document?

   Answer: “No”.

   viii.Question 31: Give details of the most recent Australian immigration visa granted to you

   Did not answer

   ix.Question 32: Details of countries of former habitual residence or transit before arrival in Australia

   Country: “Iraq”.

   Date of departure: “[date]-Feb-2011”.

   x.Question 33: Did you ever travel outside your home country or country of residence before your current journey to Australia?

   Did not answer

   xi.Question 34: Give details of all addresses outside Australia where you have lived for 6 months or more in the last 10 years

   Answer: “Iraq”.

   Dates lived there: “from [Date 1] to 02/2011”.

   xii.Question 41:  I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries)

   Answer: “Iraq”.

   xiii.Question 42: Why did you leave that country?

   Answer: “Please refer to the attached statement”.

   xiv.Question 43: What do you fear may happen to you if you go back to that country?

   Answer: “Please refer to the attached statement”.

   xv.Question 44: Who do you think may harm/mistreat you if you go back?

   Answer: “Please refer to the attached statement”.

   xvi.Question 45: Why do you think this will happen to you if you go back?

   Answer: “Please refer to the attached statement”.

   xvii.Question 46: Do you think the authorities of that country can and will protect you if you go back?

   Answer: “Please refer to the attached statement”.

   xviii.Question 56: Did you ever apply to migrate to any country other than Australia?

   Answer: “No”.

   xix.Item 64: This schedule is to be filled out if you have been convicted of a crime or any offence in any country:

   The space to complete the schedule was left blank.

   xx.Item 65: Declaration: [Name 1] declared: “the information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail.”

   -A part of the application form he included a statement which in part stated:

   “I [Name 1] an Iraqi citizen born in Iraq/province of Samawa on [Date 1] have arrived in Australia using a passport provided to me by a smuggler in the second half of February 2011 but I cannot recall the exact day. Below are the reason as to why I fled Iraq and how I entered Australia.

   I am a single Shite, born and lived my life in the province of Al Muthana, I was only [age] years old when my father was killed in the Iraq-Iranian war (1986) and was raised by my mother.

   The death of my mother left a deep scar in my personality, [details deleted].

   I was taken by my [uncle] [Mr A] and lived with his family until I left Iraq. My Uncle [Mr A] was a member in the Iraqi Commonest Party (sic).

   I then had to give up the school as I used to have many fights with pupils who were teasing me with mentioning my mother’s name. I was interested in playing soccer, and was known to be a good player, I concentrated on improving my skills in soccer and when was selected [for] the soccer team I was extremely happy but in the first match I heard people murmuring with my mother’s name thus I decided to give up playing in public forever. I lost hope and found myself isolated from the people living with the crime of my uncle who killed my innocent mother.

   After the regime change in 2003 I worked in the business of [trading] wholesale, things were improving rapidly and managed to establish a successful business.

   When the religious militias became the dominant forces in the streets, they started to harass me for the following reasons:

   a. I drink alcohol and they see that as crime and punish people for drinking it.
   b. I participated by donating an amount of money to my Uncle [Mr A]’s friend who were trying to establish a liberal newspaper to express their views.
   c. I defended my personal liberty and stood against the authority of the Muslim clergy who want to convert the country into a religious state

   At the very beginning of August 2001, I was arrested by the Mahdi militia and was handcuffed and blindfolded. I was interrogated and tortured because of my contribution to my uncle’s friends and because as they claimed I was trading with alcohol. For more than [number] months they kept in detention and was tortured in daily basis. Then I managed to pay money to them and was released. The people who helped me to escape from the prison advised me that I should leave the province and the country. Because the people who are charge for the militia were planning to murder me.

   I travelled to [Country 1] and stayed there for 3 days until an Iraqi passport with my photo was delivered to me and I then flew to [Country 2]. In [Country 2] I stayed 5 days before flying to Australia.

   I am putting forward this application for onshore protection on the basis that my life and liberty are under serious threat in Iraq and I had to flee Iraq to escape the arbitrary detention and torture.”

   -Facial Comparison evidence

   Facial photos of [Name 1] DOB [Date 1] (referred to as P1) and [Name 2] DOB [Date 2] (referred to as Q1) were provided to the Department.  The findings of a forensic facial comparison report finds that P1 and Q1 represent the same person.

   [Name 2] DOB [Date 2] travelled to Australia [in] September 2011 on a Visitor [visa] with a [Country 3] passport number [valid] to [2013]. He did not depart Australia in line with his visa validity and is unlawful in Australia.

   [Name 2] was interviewed by an airport inspector on his entry to Australia [in] September 2011. At that interview he stated:

   -he had been living in [Country 3] for the past seventeen years with his wife and [number] children and he was a [Country 3] citizen.

   -he travelled to Australia to visit a friend.

   [Name 1] DOB [Date 1] lodged an application for a Protection visa on 11 October 2011. He claimed to be [Name 1] born in Iraq. He declared he was a national of Iraq and no other country, and that he was not known by any other name. he claimed he left Iraq by illegally entering [Country 1] where he obtained an Iraqi passport in his name. he then travelled to [Country 2] where th passport was confiscated and he was given a fraudulent passport which he used to travel to Australia in mid-February 2011.

   -Open source checks

   Open source checks of the social media website, Facebook, show the name of “[Name 3]” and various facial images. An image from the FaceBook page was used in the forensic facial comparison report and labelled Q3. The report found images Q3 and P1 are the same person.

   -Fingerprint comparison

   Fingerprint records provided by the Department to Interpol authorities in the name of [Name 1] were checked against [Country 3] records. They matched to the following identity:

   • [Applicant name] ([Date 3]), Iraqi national born in Muthana, Iraq.

   Information from [Country 3] court records indicate [applicant name] DOB [Date 3] arrived in [Country 3] [in] July 2001 and was granted permanent residence [in] September 2002. Information from [Country 3] court records indicate [in] May 2006, [applicant name] DOB [Date 3] was convicted in [Country 3] of the following offences:

   ([Country 3] personal no [deleted]); verdict no [deleted]:

   - beatings
   - illegal restraint of freedom of a person
   - gross violation of personal peace
   - unlawful threats
   - rape
   - abuse of judicial procedures

   and received the following penalties:

   - four years imprisonment
   - payment of [amount] SEK to a victims fund
   - payment of a fine to the victim of [amount] SEK
   - other payments for fees to people involved in the court proceedings

   [The applicant] applied for a review of this conviction and two further verdicts were made by the appeal court and the Supreme Court as follows:

   ([Country 3] personal no [deleted]); verdict no [deleted]; verdict no [deleted]:

   - three years and six months imprisonment
   - payment of a fine to the victim
   - other payments for fees to people involved in the court proceedings
   - expulsion from [Country 3] for a period of ten years, not allowing his return to [Country 3] before [August] 2016.

   On 02 August 2008 [the applicant] was convicted in [Country 3] of the following offence:

   -   Unlawful threat

   and received three months imprisonment penalty.

   -Departmental movement records and passenger cards

   Departmental records indicated that [Name 1] departed Australia to Iraq [in] March 2014 for two months

   Iraq is the country he claimed he could not return to and sought protection from.

   -Consideration regarding evidence

   His Protection visa was granted on 14 December 2012 on the basis he satisfied the Minister he engaged Australia’s protection obligations under the Refugees Convention.
   He claimed he was [Name 1], born in Iraq, he was not known by any other names, and he had not lived or resided in any other country before coming to Australia, entering Australia on a false passport. He claimed he had been arrested and imprisoned by the Mahdi militia for [number] months and tortured on a daily basis. He claimed he paid money to be released from prison and left Iraq because the Mahdi militia were planning to murder him. he did not declare any previous convictions or charges.

   [In] March 2014 he voluntarily travelled to Iraq for a two month period, in full view of the authorities, without any apparent issue of his protection claims arising.

   The delegate considered that the applicant did not hold the adverse profile he claimed when he applied for and was granted a Protection visa.

   The Delegate considered that the applicant contrived his claims to facilitate the grant of a Protection visa.

   The Delegate considered he provided incorrect answers in his Protection visa application form, as outlined above.

   Applicant’s Response to the second NOICC

6. On 18 December 2017 the applicant’s Agent sent an email message to the delegate stating that the delegate’s reference to the applicant as a ‘[Country 3] Citizen’ was incorrect as the applicant had only permanent residency in [Country 3].

7. The Agent also wrote that the applicant has Iraqi citizenship and if his Protection visa is cancelled he would be forced to return to Iraq and would suffer the harm set out in his previous protection claims. 

   Cancellation Decision

8. On 16 April 2018 the Department delegate cancelled the applicant’s Protection visa on the basis that the applicant had not complied with s.101 of the Act.

   Information to the Tribunal

   Pre-Hearing Submission

9. On 21 February 2019 the applicant submitted the following materials to the Tribunal:

   i.Three photographs of the applicant lying injured on a hospital or clinic bed, entitled “Physical Assault, Police Report [deleted], [Suburb 1], [date]-5-2016”.

   ii.A [Change] of Name Certificate recording that the applicant changed his name to “[Name 4]” with date of birth “[Date 1]” [in] December 2017.

   iii.A copy of the applicant’s Iraqi passport, in the name “[variation of applicant’s name]”, date of birth “[Date 3]”, issued [in] 2008.

   iv.A copy of the applicant’s Iraqi Personal Identity Card, in the name “[second variation of applicant’s name]”, date of birth “[Date 3]”, place of registration “Al Samawah”,  issued on “[2011]” by the “Al Samawah” office.

   v.A copy of the applicant’s Iraqi Certificate of Citizenship, in the name “[applicant’s name]”, issued [in] 1998.

   vi.Payslips to the applicant in the name “[Name 4]”, from [Employer 1], for the period July to December 2018.

   vii.A copy of the applicant’s [Country 3] ‘Alien’s Passport’, in the name “[applicant’s name]”, date of birth “[Date 3]”, issued [in] 2005.

   viii.Copies of three other [Country 3] ID cards in the name  “[applicant’s name]”, date of birth “[Date 3]”, issued in 2006 and 2007.

   ix.Several personal references from the applicant’s friends and acquaintances.

   x.A copy of the applicant’s 2018 Australian Tax Return in the name “[Name 4]”.

   xi.A copy of a [Country 3] Passport in the name “[Name 2]”, date of birth “[Date 2]”, issued [in] 2016.

   xii.A copy of a [Country 3] National ID Card in the name “[Name 2]”, date of birth “[Date 2]”, issued [in] 2016.

   xiii.A copy of a letter in the Arabic language with an accompanying English translation, which states it was issued by the Council of Sheikhs of Iraqi Tribes and Clans, [in] June 2009, as a permit to kill “[applicant name]”, because he made an illegal and illegitimate relationship with a woman from [Clan 1] in [Country 3]. [Clan 1] asks its members to kill the applicant.  It has informed the applicant’s family that they must leave the province until they hand over the applicant.

   xiv.A video of three men with scarves around their faces entering a building and speaking with another man there for a few minutes, then leaving.

   xv.A document by a translator described as a transcript of an Arabic conversation recorded on a video.  The transcript indicates someone asking for ‘[the applicant]’ and told he is not there. The man asks to go upstairs but is told no they can’t  because women are present. One of the men says it is the third time they have been to the building and they swear to behead [the applicant] when they find him. They have received information that [the applicant] comes there and they will kill him.

   xvi.A copy of an email to the applicant in [Country 3] from the [Country 3] Embassy in Canberra.

   xvii.A Statutory Declaration from [Ms B] in which she states that she is the applicant’s fiancée. She is a single mother with [children].  She is divorced. She met the applicant in 2016.  Their relationship started in 2017. They want to get married.  She is in contact with the applicant every day.  Her daughter goes with her to visit the applicant in detention.  She has spoken to the applicant’s two brothers in Iraq.  The applicant has told her about his criminal convictions in [Country 3] and that a woman he knew made accusations against him.  That is not his character. He has never been physically or emotionally abusive to her or anyone she knows.  He told her he was attacked in [Suburb 1] in 2017 because of problems overseas that have followed him here.  She does not consider the applicant a danger to the Australian community.  If he is deported to Iraq there is a high risk he will be killed.  His family are in Iraq but his heart is in Australia.

   xviii.A Statutory Declaration from the applicant in which he states:

   a.His true birth name is [applicant name].

   b.He has also been known by the following names:

   ·     [Name 1]: this is the name he used when he applied for a refugee visa in 2011. He has been using this name while in Australia.

   ·     [Name 3]: He only used this name on facebook.

   ·     [Name 2]: This is his brother. The applicant used his [Country 3] passport to enter Australia. His brother has a wife and 6 children in [Country 3]. The applicant doesn’t.

   ·     [Name 4]: He changed his name legally for his safety.

   c.He was born on [Date 3] in Iraq.

   d.He is a Muslim Shia.

   e.He was raised in Iraq and has 6 brothers and 2 sisters. He only has his mother and [brother] left in Iraq. All his other brothers and sisters are in [Country 3].

   f.He has never had a criminal record in Iraq or any other country except [Country 3].

   g.He has never been married or had children.

   h.He went to [Country 3] in 2001. He had to leave Iraq. His life was in danger. He knew if he stayed, he would end up dead. At that time, he had [brothers] and [sisters] in [Country 3]. So with their help he went to [Country 3] and applied for a visa. He was around [age] years old at the time.

   i.Life in [Country 3] was really good, he had so much of his family around. He worked as a [particular occupation]. He could [not] work as a [particular role] if he had a criminal record.

   j.Around 2005 he got in trouble with the [Country 3] police after an incident with his partner of 4 years. He was arrested by police. He went to court and was found guilty of rape, illegal restraint, gross violation of personal space and unlawful threats. All these offences happened on one occasion. He tried to fight it but lost. He ended up in jail for around 2 years and 4 months.

   k.After his time in jail he was deported from [Country 3].  He doesn’t have permanent residency or citizenship in [Country 3]. He contacted the Embassy of [Country 3] in Canberra in February 2019. They emailed him that he doesn’t have a visa since September 2008, which is around the time when he was deported.

   l.Around [September] 2011 he came to Australia on a plane. He landed at [City 1, Australia] airport. He used the [Country 3] passport of his brother, [Name 2], to enter Australia. The passport was a real passport.

   m.When he came to Australia, he was questioned at the airport. He said he had a wife and six kids in [Country 3]. This is true for his brother [Name 2], but not true for him.

   n.He has provided the department with the most recent passport and national identity card for his brother who lives in [Country 3] with his wife and children.

   o.He applied for a refugee visa in Australia shortly after he came to Australia and he got it on 14 December 2012. He used fake documents in his application. This is where he got the name [Name 1].  He paid for these documents in Australia from an Iraqi group in [City 1, Australia]. He paid around [amount]. This group helped him get the documents. After that they found out about his criminal record in [Country 3] and have been after him since then. He was attacked twice by them. The first time was in [Suburb 1] in May 2015 and the other time was on his drive way in [Suburb 2]. He reported these attacks to police, they are Event No: [number] & [number].

   p.He changed his name to [Name 4] to be safe from this group.

   q.His life was in danger from the militia before he left Iraq. Then, the group who helped him get the false documents told the militia in Iraq of his crimes in [Country 3]. They have come looking for him in Iraq. His brother’s life has been threatened. He has a video that his friend sent him in early February 2019 showing the militia coming to his younger brother’s place and threatening his life if they find out that he has any contact with the applicant.

   r.Around 16 April 2018 the applicant’s visa was cancelled and he appealed to the tribunal around 19 April 2018.

   s.Before going to [immigration detention], he worked for [Employer 1] on a full time basis. He lived in [Suburb 3] with his friend.

   t.Around 5 December 2018 Australian Border Force came and took him from [Suburb 3] and brought him to [immigration] Detention Centre. His lawyers applied for a Bridging visa E. The Bridging visa E was refused 7 December 2018. He appealed this and had a hearing on the 13 December 2018. He lost.

   u.He is in a long-term relationship with [Ms B] since 2016. She is Australian with a [certain] background. He met her [in] 2016 and then about 1 year later he saw her at [a suburb] while she was working. They  started to be together after that. They have decided to get married.

   v.In March 201[4] he travelled to North Iraq or Kurdistan. He only went back for 2 months.  He had to go back to sign some documents so his mother could sell his dad’s property.  His dad has passed away. His mum was very sick during this time and is still sick. She had [a medical condition]. He travelled under the name of [Name 1].So it was easier for him to stay in hiding, because no one knew him under that name. He could not go to his home town because he was too scared that he would be recognised and possibly killed.

   w.In April 2017 he travelled to [Country 4]. He had the chance to travel at a time he was stressed and needed a break, so he went on a short holiday.

   x.He has lived in Australia since arriving in 2011.  He has no criminal record and he hasn’t been in trouble with police. He is now open and honest with the Department because there is no reason for him to lie. His true name and criminal record are now known. He is very sorry that he lied to the Australian Government, but he felt that if he didn’t, he would be killed in Iraq. Since coming to Australia, he  has tried to be a good resident, respecting the country and its law.

   y.He can’t return to Iraq. He will be killed. He has had death threats against him. He has provided these as evidence.

   z.He respectfully asks for a second chance

   Tribunal Hearing

1. The applicant appeared before the Tribunal on 21 February 2019 and 15 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s fiancée  and her daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

2. The following is a summary of the information provided by the applicant at the hearing:

   a.The Tribunal discussed the s.438 Certificates on the Department’s file and the nature of the information they related to, with the applicant. The Tribunal asked the applicant if he wished to comment or respond about the certificates and the information they related to.  He responded that he understood and did not have any comment.

   b.His full name is [applicant name]. This was his name given at birth.  He was born on [Date 3] in Samawa, Iraq.  He is Shia Muslim.  His tribe is the [Name 3 surname] tribe. The family use two names, ‘[Name 3 surname]’ and ‘[Name 2 surname]’.  [Name 2 surname] is name of the big tribe and [Name 3 surname] is a branch of it.

   c.In Iraq he lived only in Samawa.  He has not lived anywhere else in Iraq. He has never been married. He speaks [the language of Country 3].

   d.He changed his name in Australia in 2017 because he was involved in a very dangerous situation with people who assaulted him in [Suburb 3] and in [Suburb 1].  He notified the police about the attacks. He has a police report from [Suburb 1] Police. He reported the other attack to the [Suburb 2] police. He gave copies of the reports to his lawyer.

   e.He first left Iraq in 2001, during Summer, so roughly the middle of the year.  He travelled with two male relatives  through [several countries], to [Country 5].  In [Country 5] his siblings met him and took him to [Country 3]. The journey took over two months. 

   f.His mother and [brother], [Mr C], are still living in Iraq in Samawa.

   g.His father and a sister died in the war.

   h.The applicant has six brothers and a surviving sister.  Four of his brothers and his sister are living [in] [Country 3].  One brother is now in [Country 5]. They moved to [Country 3] in 1991 when their father and sister were both killed.  They were taken to [Country 3] by the UN.  At the time people were fleeing to Saudi Arabia where the Americans had set up camp. His father and sister were killed and had to be buried in Samawa although tradition called for them to be buried [elsewhere]. He and his mother and younger brothers, [Mr C] and [Mr D], could not return to Saudi Arabia because of roadblocks.  So they could not go to [a specified region] with his siblings.  He was about [age] at the time and [Mr C] was [age].

   i.Their mother is more than [age] now and is not in good health. She has diabetes and high blood pressure.  [Mr C] is married and looks after her.  He owns a [shop].

   j.In 2001 the applicant turned [age].  A party or a group of people had something against him because they believed his brothers were part of the Shia uprising against Saddam Hussein. ‘They’ belonged to Saddam Hussein’s government and were part of his Secret Services.  After the applicant left Iraq, his brother [Mr D] also left Iraq when he turned [age].

   k.His mother has remained in Iraq. She has never tried to visit [Country 3].  His brothers and sister have visited her in Iraq from time to time.

   l.He left [Country 3] because he had been in a relationship with a woman for four years. During the last year of their relationship things deteriorated and she accused him of assaulting and raping her.  He handed himself to the police.  He was jailed for two years and four months. Then he was deported to Iraq in August or September, 2008.

   m.He had a legal aid lawyer who helped him defend the charges in [Country 3].  The lawyer did not do a good job. He is not guilty. He does not remember having to make a plea at the court.  His trial lasted about two hours.  When he handed himself in to the police in 2006 they detained him in a police cell. He was kept there for about 11 months, until his trial, and from there he went to prison. He had two court appearances.  The initial one where he received his sentence and an appeal to the supreme court where his sentence was changed to 3 years and 6 months. 

   n.In Iraq he started facing problems from his ex-girlfriend’s family and the militia.  His situation became more dangerous than in Saddam’s days.  He had to flee his city and live elsewhere for two years.  He got a chance to go to [Country 6], [Country 4] and then to [City 1, Australia].  He used his brother [Name 2]’s passport to do this.  The applicant had an agreement with [Name 2]’s wife that she would send [Name 2]’s passport to the applicant with people travelling to Iraq.  [Name 2] had no knowledge of this. When the applicant arrived in Australia he tore [Name 2]’s passport apart. He agrees it is difficult to understand why he arranged the passport with [Name 2]’s wife, and not with [Name 2] directly.

   o.The name of his ex-girlfriend is [Name].  She was born in [Country 3].  She is [of mixed ethnicity].  She is from a very big tribe. He does not know which tribe she is from. He does not know much about tribes.

   p.He did provide incorrect information in his Protection visa application. He did so because he had no other option. He had to either lie or die. He was forced to lie to save himself.  He was not happy to live in Australia under a lie. He was driven by fear and hesitation. Any time he met a lawyer they told him not to tell the truth or he would  go to jail and would be sent to Iraq.

   q.He also gave false information about his mother being killed by his uncle in an honour killing, as a result of living in confusion and fear and wanting to hide what he went through in [Country 3]. It was a story of someone he knew and it had stuck in his head.  He admits what he did was wrong, all wrong.

   r.He applied for a Protection visa in a false name because he could not reveal his own name in Australia. He was afraid that what he had gone through in [Country 3] would come up in a search.

   s.He returned to Iraq again in 2014. The reason for his return was that his mother was not well.  The family also needed to sell some real estate so all the children had to sign a document in Iraq.  He was able to travel under his Australian passport in his different name. He went to Basrah. A relative brought him the papers to sign.  He did not have a chance to see his mother. She was very sick in hospital and could not travel to see the applicant.

   t.While he was in Iraq in 2014 he stayed in Basra for two weeks and then spent one month in Kurdistan. In Basra he was staying in [a place]. He left Basra because the situation was very bad between the militia groups there.  There were a lot of kidnappings and explosions. He sought safety in Kurdistan. He didn’t return to Australia because he was waiting and hoping to see his mother and to get his share of the property sales.

   u.He travelled to Kurdistan by car, through Baghdad. In Kurdistan he stayed in Sulaymaniyah. We was able to enter Kurdistan as an Australian passport holder.  He had a friend [there], it was not that difficult. He does not know where he stayed in Sulaymaniyah.

   v.The Tribunal put to the applicant that it could locate no reports of explosions occurring in Basra at the time he was there in 2014. The applicant responded that there were always explosions and kidnappings happening there but maybe the media doesn’t report it.

   w.The Tribunal asked the applicant why he chose to go to Basra if it was so dangerous there. He responded it was because the airport is in Basra and he could not go to Samawa.  Samawa is a small town where everyone knows each other. The people who were after him have infiltrated the government.  The people who are after him are the tribe that is connected to “that girl”. It also has connections to the militia, Jaysh al Mahdi, which is now known as Tayyar Al Sadri.

   x.The Tribunal put to the applicant that country information indicated that Jaysh al Mahdi, now Tayyar Al Sadri, is no longer considered a militia group, but a political organisation. The applicant responded that all militia have joined the government.  The Sadrists want to harm him because his ex-girlfriend’s tribe belongs to Al Sadri.  His mother told him this.

   y.He thinks the tribe is [Clan 1]. He first discovered the tribe was after him maybe in 2009.  He then fled to Baghdad.  He went to Baghdad because he heard, or somebody passed him the message, that they were coming after him and they want to kill him.  When he first arrived back in Iraq in 2008 he went to Samawa and lived with his mother.  He did not do anything there. He stayed in Samawa for about one year and then went to Baghdad, because he was having problems with the tribe and the militia. The militia was after him.  He received a threatening letter, and news from a relative that they were seeking revenge.  The threat was verbal, not a letter.  He does not remember when in 2009 he went to Baghdad.

   z.The applicant stayed in Baghdad from 2009 until 2011.  He stayed [in] a cousin’s house. He just stayed indoors while he was there.  He could not leave Iraq before then because he did not have a passport to come to Australia.  He wanted to come to Australia because of his problem. He could not go to Kurdistan to live because it is very difficult to live in Kurdistan.

   aa.The Tribunal put to the applicant that he initially stated that the only place he ever lived in Iraq was Samawa.  Yet now he states he lived in Baghdad for two years. The applicant responded that he said he lived in Samawa for a year and then moved to Baghdad.

   bb.He did not try to go to [Country 1] because most Iraqis in [Country 1] apply to the UN.  He had an easier solution which was to use his brother’s [Country 3] passport. He decided to use his brother’s passport around the middle of 2009. Towards the end of 2010 he asked his brother’s sister for his brother’s passport.  A relative brought the passport to him in Iraq about one month before he travelled. He can’t recall when in 2011 he left Iraq.  He used his brother’s passport to leave Iraq. He went to [Country 7] by car and then by plane to [Country 6]. He obtained a Visitor visa for Australia using his brother’s passport while he was in [Country 6].  He did not stay in [Country 6] because he had no right to stay in [Country 6]. The fingerprint system in [Country 6] is the same as in [Country 3].  He can no longer return to [Country 3].

   cc.He obtained an Iraqi passport in 2008 because he planned to travel with it and to obtain a [visa]. He didn’t get the [visa] because it cost too much money. The officers wanted $[amount] and insurance. His brothers couldn’t help him because they are married and have their own expenses.

   dd.The Tribunal asked the applicant why his Iraqi National Identity Card stated it was issued in September 2011 in Samawa, when he claimed not to be living there then. He responded that he has given his mother a full power of attorney so she obtained his two ID cards for him.  He sent her papers so she could sign documents on his behalf. He wanted the ID cards because everyone should carry them. 

   ee.The Tribunal put to the applicant that he returned to Iraq in 2014, primarily to complete a property sale, indicating he did not fear being killed in Iraq. The applicant responded it is correct he returned for the property sale.  His signature was needed as the family assets had not been divided. His brothers invited him to come to Basra.  He did not imagine it would be so bad in Basra.

   ff.He left Sulaymaniyah to return to Basra so he could come back to Australia.  He was not able to sign the paperwork and the property could not be sold.  His plane ticket was for a flight departing from Basra.  He was able to sign the papers but it was taking too long to get his share of the money. He did not fly out of Baghdad instead given Basra was very dangerous because Baghdad was just as bad.  His ticket was from  Basra and he could not afford to change it.

   gg.He now fears the tribe and the militia in Iraq. The militia he fears is Tayyar Al Sadri. He cannot live anywhere else in Iraq because he does not have the opportunity to, Iraq is burnt down.  He would not be permitted to stay in Kurdistan without citizenship. It is difficult to live there. He can’t explain it.

   hh.He obtained his own [Country 3] passport about two months ago. Someone went to Iraq for a holiday and the applicant arranged for him to speak with his younger brother there to prove his ID and bring him the passport.  [Mr C] obtained the applicant’s [Country 3] documents through [Mr D] who was holding them.

   ii.The written Death Threat notice was given to his younger brother, [Mr C]. The applicant received it after he left Iraq. His brother had it in his possession but did not tell the applicant so as not to worry him.  He only told the applicant after the applicant was put in detention in Australia and his visa was cancelled. [Mr C] told the applicant that the person who was threatening the applicant gave [Mr C] the notice.  The applicant asked [Mr C] to send it to him with his passport.

   jj.His brother did not give the applicant the threatening letter even though the applicant was aware of the threats. The applicant’s mental situation was not good after being imprisoned in [Country 3].  His brother kept the letter because it is problematic and serious. He hid it at home.  The applicant does not have the original of the letter. His brother kept the original at home.

   kk.In 2018 the applicant’s brother [Mr D] and his sister, [Ms E], visited their mother in Iraq.  The applicant doesn’t think his brothers visited Iraq in 2014 when the applicant was there. They did not all need to sign the property sale documents at the same time.

   ll.The Tribunal put to the applicant that he was in Samawa for about one year after being deported to Iraq from [Country 3], and nothing happened to him there. He responded because he was just released from prison and his mental state was not good he was not in good shape so he just stayed at home and did not go out.

   mm.The applicant confirmed that his mother and brother still live in Samawa.  The Tribunal put to him that the threat notice stated that his family could not remain in Samawa.  He responded that that was if they got their hands on him, if they capture him.  The harassment of his family started in the beginning of December 2018 when they got news he was being kicked out of Australia.

   nn.The applicant’s family tried to negotiate with [Clan 1] but they have not reached any useful conclusions. The tribe sent four people here to Australia and the incidents happened to him at the entrance of the building where he used to live. Three masked men attacked him and the incident was recorded on CCTV.  There are two people here, whose names he mentioned to the police, who were behind the incident.  They are [Mr F] and [Mr G]. They are the ones stirring all the trouble for the applicant and who contacted the immigration department. The applicant knows this because he has a friend [who] is [Mr G]’s brother. The applicant does not know their tribe.  [Mr G] has connections to the militias in Iraq. They know how to get him.  [Mr F] and [Mr G] have contact with them. [Mr F] directly told the applicant they will send people to get him, about two months before the attack in [Suburb 3]. The applicant told this to the police in [Suburb 2]. No one has been arrested for the attacks on the applicant in Australia. The applicant only knows the names of the people behind the attacks, not the attackers themselves. One has a mosque and has contact and relations with everybody.  The applicant is safe in Australia because there is rule of law here and they cannot kill him.  All they can do is hit him. They did not have a knife or gun, just a stick or bat to hit him. 

   oo.The video was filmed about two months ago, in the building in Samawa where his brother [Mr C] lives.  When they knocked, [Mr C]’s wife was scared so she used a phone to film them.  They would not care that she filmed them.  They had their faces covered.  The applicant does not know why they covered their faces when they are a powerful tribe. Maybe they did not want to be known to the government.

   pp.The Tribunal put to the applicant that the men in the video did not appear very threatening. The applicant responded that this is because they are not after his younger brother and he was swearing that the applicant is not there. They had wrong information that the applicant was deported to Iraq from Australia, which made them go to his mother’s home. The video was sent to a friend who sent it to the applicant by WhatsApp. The friend received the video from [Mr C].  [Mr C] could not send it directly to the applicant because he did not want to have any evidence against him of contact with the applicant.

   qq.The Tribunal put to the applicant under s.424aa of the Act that his Face Book pages showed photos of him in Iraq in 2014, in which he did not appear to be in fear, or living in hiding.  He responded that the photos were taken in Basra and Sulaymaniyah. He can’t remember the names of some of the other men in the photos. None of the people in the photos are related to the applicant. Being scared was inside his heart and would not show up in his face. Another photo of him dated September 2015 is an old photo from [Country 3].  He liked the photo. Other photos are of the applicant in [various places].

   rr.The Tribunal put to the applicant that he has been attacked in Australia but not in Iraq, so why would he feel safer here than in Iraq.  He responded that in Iraq it is very critical and his fate will be determined and it’s a matter of life and death but here they are not able to kill him. The maximum they can do is hit him, just normal fighting.

   ss.The applicant obtained the false Iraqi passport he used with his Protection visa application, in Australia from the people who are now causing him trouble, [Mr F] and [Mr G]. Their full names are [Mr F], and [Mr G].  He paid them for the passport. He did not have a problem with them then because the tribe and militia did not know he was in Australia. After a year he started having a problem with them. They would talk that they knew what the applicant did and they will ruin his reputation and they will get the applicant out of the country and they know of the problem with the applicant’s family. 

   tt.The applicant has a new life with a woman he loves.  He wants to stay here in Australia.  He works and is a peaceful person. He gets along with other people well and helps other people whenever he can. He and his fiancée donate money to [an Islamic] organisation.

   uu.The applicant does not have a criminal record in Australia and he has never done anything wrong.

   Written submissions at Hearing

3. On 15 March 2019 the applicant submitted the following documents to the Tribunal:

   i.A Statutory Declaration from the applicant clarifying that he has 5 brothers and 1 sister and a mother. He also states he has become aware he has a criminal record [in Australia] for soliciting a prostitute.  He was only fined for this.

   ii.A submission by the applicant’s Agent. 

   iii.Certificates of Attainment and Achievement for [Name 1].

   iv.A copy of an Extract from  the Iraqi Record of General registration naming the applicant, his parents, and his siblings, issued on 24 February 2019.

   v.A copy of the applicant’s mother’s Iraqi passport, issued in [2017].

   vi.A copy of the applicant’s brother’s ([Mr C]) Iraqi passport, issued in [2017].

   vii.A copy of the [Country 3] passport of [Mr D].

   viii.A copy of the [Country 3] passport of [Name 2].

   ix.A copy of the [Country 3] National Identity Card of [Ms E].

   x.A copy of the [Country 3] Passport of [Ms E].

   xi.A letter from the Development manager of  the ‘[organisation name]’ stating that the applicant and [Ms B] have been donating towards charitable [projects].

   xii.A list of numerous payments by the applicant and [Ms B] between the period [August] 2010 and [February] 2019, with [activities] listed between [August] 2015 and [February] 2019.

   xiii.A tenant trust ledger receipt in the name ‘[Name 1]’.

   xiv.Additional personal references for the applicant.

   xv.A handwritten letter from the applicant’s fiancée’s daughter [in] which she states she is [age] years old and considers the applicant her future step-Dad.  She and her mother were very sad when the applicant was detained. The two years he has been in their lives have been great. He would take them to the beach and they would eat ice cream together.  She has cried a lot since he was taken away.  She loves the applicant in her heart. She strongly believes he needs to be released so she and her mother can continue to build their future with him.

   Post-Hearing Submission

1. On 1 April March 2019 the applicant’s Agent sent a written submission to the Tribunal, stating:

   -     The applicant concedes he travelled to Australia on his brother’s passport.

   -     He is [applicant name], born in Iraq on [Date 3].

   -     He arrived in [Country 3] in 2001 and was granted permanent residence there in 2002.

   -     In 2005 he was found guilty of several criminal offences.

   -     He served two years and four months in gaol and was then deported from [Country 3] with a 10 year exclusion ban.

   -     He provided incorrect information about his identity in his Protection visa application in 2011. He did this because he was fleeing being killed in Iraq. He had lost the right to return to [Country 3].

   -     He is in a long term committed relationship with an Australian citizen. [Ms B] gave evidence that if the applicant is deported to Iraq she will go with him.  She foresees that her daughter’s biological father will not let her take her daughter [with] her.

   -     Iraq has an extremely volatile and dangerous security situation, with a high threat of kidnapping. [Ms B] is a Sunni Muslim and Sunnis face a moderate risk of official and societal discrimination in areas where they are a minority. She would face considerable hardship and danger in Iraq because of her non-Iraqi ethnicity and religion and will be vulnerable to kidnapping.

   -     [Ms B]’s daughter will lose her mother and step-father if the applicant is deported. The family unit will be broken up.

   -     The applicant’s life will be in danger if he is deported to Iraq. He and his brother have received death threats. Relocation is not an option because he is wanted by Taiar Al Sadri militia. The applicant believes he was beaten by this group in Australia. Kurdistan is not an option for relocation.

   -     Returning the applicant to Iraq will be a breach of Australia’s international obligations not to return someone to a country where they are at risk of persecution or harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The Department has placed a non-Disclosure Certificate on several folios of information on their files, in relation to the cancellation of the applicant’s visa This information discloses their investigations into the applicant’s identity, status in [Country 3], and criminal convictions. The Certificate at Folio 257 of the Department File [number deleted] Part I contains significant errors in its descriptions and the Tribunal does not consider the Certificate valid.  In any event the Tribunal discussed the information with the applicant.  It is information regarding the applicant’s identity and past that he has admitted to.

3. A further non-Disclosure Certificate, at Folio 180 of the Department File [number deleted] Part II relates to information on Folios 8 to 16 of that files. This is also information relating to the Department’s investigation of the applicant’s identity. The Tribunal considers this non-Disclosure Certificate is valid.  The Tribunal discussed the Certificate with he and the information it covered.  Its relevance is that it lends support to the applicant’s admissions regarding his identity and identities he has used in the past.

4. 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.

5. 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.

   Did the notice comply with the requirements in s.107? 

6. 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.

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

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

8. 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.

9. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 in that the applicant provided incorrect answers to questions in his Protection visa application form regarding:

   -his name

   -his aliases

   -his date of birth

   -his date of arrival in Australia

   -details of his travel document and previous travel documents

   his Australian immigration authorisation

   -his countries of former habitual residence

   -his travel outside of Iraq

   -his former addresses

   -why he left Iraq

   -what he fears may happen to him in Iraq

   -who he thinks may harm in Iraq and why

   -whether the Iraqi authorities could protect him

   -whether he had ever applied to migrate to another country

   -whether he had applied for refugee status in another country

   -information about his criminal convictions, and

   -his declaration that he had supplied complete and correct information  in the application form.

10. The applicant has admitted he did provide false identity details and false information in his Protection visa application. In his Statutory Declaration the information he provided as the true information, was very different from the information he provided in his Protection visa application, in the aspects particularised in the NOICC.  The documents and other materials he subsequently provided also clearly support his admission that the information in his Protection visa application is incorrect.

11. The applicant’s admissions and the available evidence are clear that he provided incorrect information in his Protection visa application, as particularised by the NOICC.

12. The Tribunal therefore finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

13. 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).

14. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

    ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

    ·     any other instances of non-compliance by the visa holder known to the Minister

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

    The correct information

15. The correct information in relation to the particulars described in the NOICC is:

    -    The applicant’s name is [applicant name]

    -    He has several aliases

    -    His date of birth is [Date 3]

    -    His date of arrival in Australia was [September] 2011

    -    He held or had held a [Country 3] Travel document and an Iraqi passport in both in his own name, and a [Country 3] passport in his brother’s name.

    -    He travelled to Australia [in] September 2011 on a [Visitor] visa.

    -    His countries of former habitual residence were [Country 3] and Iraq.

    -    He had previously travelled outside of Iraq to [Country 3].

    -    He had former residential addresses in [Country 3].

    -    His reasons for leaving Iraq and his claimed fears in Iraq were not related to the honour-killing of his mother or his imprisonment by a militia group (this is discussed further below).

    -    He had previously applied to migrate to [Country 3].

    -    He has convictions for several criminal offences in [Country 3].

16. The Tribunal considers this information of high importance to declare truthfully in the applicant’s Protection visa application, as it was an integral part of the assessment of protection obligations owed to the applicant at the time.  The Tribunal considers this factor weighs in favour of exercising the discretion to cancel the visa.

    The content of the genuine document (if any)

17. This is not a relevant consideration in the applicant’s matter.

    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

18. The decision to grant the applicant a Protection visa was based upon his well-founded fear of serious harm, for reasons of his “imputed political opinion and ascribed non-Islamic behaviour”.  The applicant had presented a profile of being targeted because of his perceived support for the Iraqi Communist Party and for consuming and distributing alcohol. His claims were accepted by the delegate and she found him to be owed protection obligations on this basis.

19. The Tribunal finds that decision to grant the applicant a Protection visa was based wholly or partly on the incorrect information provided by the applicant in his Protection visa application.

20. As described by the applicant, he provided the incorrect information in order to obtain an advantage to which he was not necessarily entitled.  During the lengthy process of the application he maintained the truth of his false claims whenever questioned or challenged about them.

21. The Tribunal considers this factor weighs in favour of exercising the discretion to cancel the visa.

    The circumstances in which the non-compliance occurred

22. The applicant states that he provided the incorrect information in his Protection visa application because he feared his criminal convictions in [Country 3] would be discovered and he would be returned to Iraq, where he would be killed; and because he was told not to tell the truth by a lawyer or lawyers so as to avoid being put in jail or sent to Iraq.

23. The Tribunal notes that the applicant made concerted efforts to acquire false identity documents in Australia, and to present false information to both his Migration Agent and to the Department.  In the Tribunal’s view there was no particular urgency or confusion on the applicant’s part which could explain or excuse his intentions to deceive the Department.  If a lawyer or lawyers did advise him to lie, the applicant was under no obligation to accept such erroneous, and unlawful, advice.

24. The applicant was clearly aware of his own circumstances and past, but deliberately withheld information he believed would be prejudicial to his chances of living a new life in Australia. The applicant’s concern that the correct information about his identity and life in [Country 3] would lessen his chances of obtaining a Protection visa in Australia, and lead to adverse outcomes for him, is understandable. But such concerns are not an excuse or a reasonable reason to withhold the information and to fabricate false claims under a false identity.

25. The applicant was under an obligation to provide correct information in his visa application and to present his claims for protection in a truthful manner.  This was the only way Australia could properly assess whether or not the applicant was owed protection obligations. The applicant was able to provide factual information about his past and any fears he may have for his safety, but chose not to.

26. The Tribunal considers the applicant’s breach a very serious one and does not view the circumstances in which the non-compliance occurred in the applicant’s favour.

    The present circumstances of the visa holder

27. The applicant has lived in Australia for just over seven years.  He is currently in immigration detention.  He has formed a relationship with an Australian citizen and her daughter. Prior to his detention he was working in Australia.

28. This information does indicate that the applicant has established a new and settled life in Australia. The Tribunal gives this factor 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

29. Subdivision C of Division 3 of Part 2 of the Act covers cancellation procedures where incorrect information has been provided.

30. The Tribunal notes that on receiving the NOICC the applicant provided a brief response to the Department through his then Agent.  He did not otherwise try to communicate with the Department, or present himself, or try to provide to them the correct information regarding his identity and past.

31. He has however been cooperative with the Tribunal, providing detailed information and documents, attending two hearings, and responded to questions and queries.

32. The Tribunal therefore views this factor favourably for the applicant.

    Any other instances of non-compliance by the visa holder known to the Minister

33. There is no evidence of any other instances of non-compliance by the applicant before the Tribunal.  The Tribunal gives this consideration some weight in the applicant’s favour.

    The time that has elapsed since the non-compliance

34. The Tribunal notes that seven years has elapsed since the applicant’s non-compliance in late 2011. In this time the applicant has made efforts to establish a new life in Australia an change his circumstances considerably.

35. While the passage of time does not excuse the applicant’s past non-compliance it has resulted in the applicant forming ties in Australia. The Tribunal gives this consideration some weight in the applicant’s favour.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

36. There is no evidence of any instances of breaches of the law by the applicant before the Tribunal, apart from a minor infringement in [a certain location]. The Tribunal therefore views this consideration in the applicant’s favour.

    Any contribution made by the holder to the community.

37. The applicant stated that he helps people and that he and his partner donate money each month, via a charity [organisation].  There is little detail about [the] nature of the support provided.  However the Tribunal is prepared to give this factor a little weight in the applicant’s favour.

    Other considerations

38. While the above 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.

    Whether there are mandatory legal consequences,

39. If the applicant’s visa remains cancelled he will remain an unlawful non-citizen in Australia and continue to be subject to detention.  However he has the ability to depart Australia and return to Iraq. The reasonableness of his doing so is discussed further below.

40. The applicant will also not be able to make another valid visa application in Australia without the Minister’s intervention.  However this is an intended legal consequence and the disadvantage caused to the applicant is far outweighed by the seriousness of his breach, and his own responsibility for the consequences.

41. Public Interest Criterion 4013 also imposes a ‘risk factor’ upon the applicant which can prevent the grant of a visa to him if an application is made within 3 years after a visa cancellation. While a three year delay may cause the applicant some short-term disadvantage it is not such a significant consequence as to be considered unreasonable or particularly harsh. 

42. The Tribunal considers this factor a neutral one, in its consideration of the discretion to cancel the visa.

    Whether there would be consequential cancellations under s.140

43. On the information before the Tribunal there are no indications that there are any people whose visas are dependent upon the applicant’s visa.  The Tribunal therefore finds that there are no consequential cancellations under s.140.  The Tribunal gives this consideration no weight in the applicant’s favour.

    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.   

    Non refoulement obligations

44. The applicant claims that if he returns to Iraq, he will be killed by the Tayyar Al Sadri ‘militia’, formerly known, or originating from, the Jaysh El Mahdi, because it is connected to the clan who want him killed.

45. The Tribunal found the applicant’s claims implausible and contradictory.  His evidence  was not persuasive.  He provided a very vague account of being targeted by a large tribe in Iraq, who are connected to the Tayyir Al Sadri, because the woman he was convicted of assaulting in [Country 3] belonged to that tribe.  Initially however he was unable to provide the name of the tribe he claimed wanted to kill him.  This was despite its name being clearly identified on the ‘Death Threat’ notice he claimed to have received.  It was not until after a break in a hearing that he gave the name ‘[Clan 1]’ as being the possible name of the tribe.  The Tribunal finds it highly implausible that a person would be targeted by a large prominent tribe in his or her home area, and not readily know the tribe’s identity.

46. The applicant also stated clearly at hearing that the only place he had ever lived in Iraq was Samawa. However he changed this evidence significantly later in the hearing to state he lived for two years in Baghdad, in an attempt to explain how he could remain in Iraq for several years without facing harm from [Clan 1] or Tayyir Al Sadri. The applicant’s details about the threats he received, how he received them, who was responsible for them, and the timeline of events was vague.  In light of these factors the Tribunal does not accept the applicant was threatened by [Clan 1], Tayyir Al Sadri, or anyone else after he returned to Iraq in 2008.

47. Further, as put to the applicant, while originating from the Jaysh Al Mahdi militia group, Tayyir Al Sadri is known to be a political organisation in Iraq[1].  The Tribunal has not located any current information that it is a militia group or involved in any militia activities.  The Tribunal considers the available country information does not support the applicant’s claim to fear harm from the group, nor does it support his claim they are a militia organisation. The Tribunal does not accept the applicant faces any threat from Tayyir Al Sadri, in Iraq or in Australia.

    [1] See e.g. The New Middle East, 2012, ‘Is Muqtada al-Sadr the new kingmaker in Iraqi politics?’, 31 July, Madhyaman, 2018, ‘Moulvis And Marxists’, 18 May, APOME, 2013, ‘Walking a Tightrope in Baghdad The ‘New’ Iraq between Sovereignty and Iranian Influence’, No. 25, October; The Journal of Politics, 2014, ‘From Bombs to Ballots: When Militant Organizations Transition to Political Parties’, Volume 76, Number 3, July; Suffragio, 2014, ‘Competing Shiite  Groups to Determine Iraq’s Next Government’, 30 April,

1. The Tribunal also considers that the applicant’s voluntary return to Iraq for two months in 2014 substantially undermines his claim to be fearful of serious or significant harm there. According to the applicant, a primary purpose for his visit was to facilitate a property sale.  His other stated purpose, to see his ill mother, did not happen during his two months in Iraq. During the hearing the applicant emphasised the importance of the property deal as his reason for remaining in Iraq. The Tribunal considers that if the applicant did genuinely fear being killed in Iraq he would not risk his life this way. This is particularly so in light of his evidence he had given his mother full power of attorney, which would readily cover signing property documents on his behalf.

2. The applicant stated he did not return to Samawa but stayed in Basra then Sulaymaniyah.  Despite claiming to have been in Sulyamaniyah for one month he could not identify where he stayed there.  He also gave contradictory evidence about the ease of entering and residing in Sulaymaniyah as opposed to the difficulty of going there when relocation was put to him.  As put to him the country information[2] indicates it can be very difficult for a non-Kurd and non-resident of Kurdistan to gain entry to the province.  The photographs of his visits to Iraq at the time do not suggest he was not in the southern region. Further, the applicant’s stated reason for travelling to Sulaymaniyah is not supported by independent evidence.  Available country information[3] lists the bombings and incidents that occurred in 2014 in Iraq and Basra, with no mention of any happening in Basra in March, April or May 2014.  The information details bombings occurring in Baghdad at the time the applicant was present in Iraq. It also lists incidents in Basra and describes bombings there in January 2014 and then in mid to late 2014, but not during the months the applicant was present in Iraq.  The Tribunal does not accept that the applicant did go to or stay in Kurdistan in 2014.  On the available evidence the Tribunal finds the applicant returned to the south of Iraq and stayed there without incident, until his return to Australia two months later.

   [2] See e.g. UK Home Office, ‘Country Policy and Information Note Iraq: Internal relocation, civil documentation and returns’, February 2019;

   [3] See e.g. Reuters, 2014, ‘Wave Of Attacks In Shi'ite Parts Of Baghdad Kill 35’, 1 October; New York Times, 2014, ‘Twin Blasts Kill At Least Three In Iraq's Basra’, 5 July; UNAMI/OHCHR Baghdad, ‘Report On Human Rights In Iraq: January – June 2014’, August,

3. The applicant has submitted a copy of a document he claims is a ‘Permission to Kill’ him authorised by the tribal council in Iraq. The applicant’s evidence how he obtained the document was confused.  He stated it was issued in June 2009, while he was residing in Iraq, but he was only made aware of it recently when his younger brother sent it to him in Australia.  His explanation as to why his brother did not give the document to him in Iraq made little sense.  The document also states the applicant’s family have to leave the area until the applicant is handed over to [Clan 1].  However on the applicant’s own evidence his family continued to live, and currently live, in Samawa.  His siblings also continue to visit their mother in Samawa without any reported incident. In view of the contradictory evidence the Tribunal does not consider the copy is of a genuine document issued by the Tribal Council.

4. The applicant submitted a few minute video he claims was of men coming to his brother’s home to catch the applicant and to threaten his family.  The translation of the conversation had at the home entrance makes references to these threats and plans.  However the visual nature of the interaction between the men does not indicate any anger or belligerence, or attempts by the men to actually try to locate the applicant. They are politely admitted by the applicant’s brother, and accept his refusal that they look for the applicant without any remonstrations. The appearances are of a relatively polite conversation and interaction and a calm departure at the end.  The men also appear to have no concerns that they are being filmed.  The three men have scarves wrapped around their faces to conceal them.  The Tribunal finds this need to conceal their identity quite inconsistent with the applicant’s claims they are from a prominent tribe who have been formally authorised by the Tribal Council to kill the applicant.  In the Tribunal’s view it does not reflect an actual threat or attempt against the applicant by [Clan 1], or anyone else. The Tribunal finds the video has been fabricated.

5. The applicant stated that he has been assaulted twice in Australia, a few years ago, by members or associates of the Tayir Al Sadri militia in Iraq, because of their enmity towards him as a result of his convictions in [Country 3].  He stated one of the men who arranged the attacks is his friend’s brother and also one of the people who arranged his false identity documents. There is no other evidence of any connection between the assaults here and the claimed threats to him in Iraq.  It may be that a person or persons wish to harm the applicant in Australia for something he has done in his past, including something arising from his criminal conviction in [Country 3].  However the Tribunal does not consider there is any cogent evidence or indication that people in Iraq are promoting the attacks here. The lack of any actual harm or attempts to harm the applicant while he was in Iraq for long periods of time strongly indicates there is no such link.  The Tribunal does not accept that the assaults on the applicant in Australia were committed at the behest of the Tayyar Al Sadri or [Clan 1] in Iraq. The Tribunal does not accept that the assaults are any indication that the applicant is at risk of harm from these groups, or anyone else, in Iraq.  While the Tribunal accepts the assaults occurred, the Tribunal finds that they reflect a risk of harm to the applicant in Australia, but not in Iraq. 

6. As put to the applicant there is no indication the applicant has ever been physically harmed or exposed to actual harm in Iraq, during his several years there between 2008 and 2011, and his return in 2014.  Further, the applicant’s mother and younger brother continue to live in Samawa.  The applicant’s other siblings also continue to visit Samawa without reporting problems. This evidence does not support the applicant’s claim to fear harm from a clan or militia because of an honour related enmity.

7. For the above reasons the Tribunal does not accept the applicant’s claim that a clan or a militia or anyone else want to kill or otherwise seriously harm him in Iraq.

8. The applicant has not put forward any other claim  to fear harm in Iraq. He has also willingly returned there in 2014.   His fiancée has stated she will also go to Iraq with the applicant if he returns there. The Tribunal accepts that she is Sunni Muslim while the applicant is a Shia Muslim.  According to the available country information[4] mixed marriage is not uncommon in Iraq, and while it may cause them some difficulty being accepted by all members of the Muslim community in Samawa, a predominantly a Shia area, it is not of itself something to provoke serious or significant harm from others.  [Ms B] gave evidence of good relations with the applicant’s family (his brothers). The available  information does not indicate there is a risk of serious or significant harm to the applicant or his fiancée because of their mixed religion relationship.

   [4] See e.g. BBC, 2016, “'Sushi' children defy Sunni-Shia divide”, 18 June; Finnish Immigration Service, 2015, Security Situation nn Baghdad - The Shia Militias”, 29 April;

9. On the available information the Tribunal is not satisfied there is a real chance the applicant will face serious or significant harm in Iraq. The Tribunal is not satisfied he has a well-founded fear of persecution there, or that there is a real risk he will be subjected to significant harm on return to Iraq.

10. The Tribunal is therefore not satisfied that Australia’s non-refoulement obligations will be breached if the applicant is returned to Iraq.

    Family Unity Principles

11. The applicant stated he has a fiancée in Australia and he has been in a relationship with her since 2017. 

12. If the applicant leaves Australia, his fiancée will either be separated from him or also have to leave Australia to be with the applicant and to maintain their relationship. The Tribunal accepts that both outcomes will result in hardship for the applicant’s fiancée. 

13. The applicant’s fiancée has indicated her intention to travel with the applicant, and remain with him, if he does have to leave Australia.  To do so she states she would leave her daughter, and other children, in Australia.

14. The Tribunal notes the applicant’s statements they are engaged but not married, and did not live together. The applicant, his fiancée and her daughter are not technically a legal family unit in Australia. However the Tribunal accepts they are in a long term relationship.

15. The applicant’s fiancée’s daughter has given evidence of her strong attachment to the applicant and her wish for his release from detention.

16. The Tribunal accepts that the applicant’s visa cancellation and removal from Australia will cause emotional hardship to his fiancée and her daughter.

17. The applicant has willingly started and engaged in new relationships while perpetuating a false identity and past.  He has also created the situation in which his visa has been cancelled. That the consequences of his actions now cause hardship to people he has formed a relationship with is regrettable, but not surprising.

18. As stated above, the Tribunal finds the applicant’s breach of his legal responsibility extremely serious and that it had little, if any, justification.  However it does accept hardship is caused to the applicant’s fiancée and her daughter and so gives this factor some weight in the applicant’s favour.

    Best Interests of the Child

19. The applicant’s fiancée’s daughter is [age] years old. Her parents are divorced but she maintains contact with her biological father here. She also has [brothers] in Australia, one of whom she lives with.

20. The child states she has known the applicant since 2017.  Given the attachment she has formed with the applicant the Tribunal accepts it is distressing for her that he is in detention and that she will also be very sad if he has to leave Australia. She has written that she looks forward to the applicant being her Step-Dad.

21. The Tribunal notes that the applicant has been in the child’s life for just two years (approximately), during which time his visa has been cancelled and he has been placed in immigration detention.

22. The Tribunal considers that the child’s best interests would be to part of a stable family unit.  Her mother provides the child with stability and she has provided evidence that her relationship with the child’s father has become civil.

23. While the applicant may be able to bring more stability to the child’s life if he can be released from detention and remain in Australia it is not readily clear that this will be the case.  The applicant has provided information of continuing conflict and upheaval in Australia.  He had also not been living in the same household as his fiancée and her daughter so had not yet become a part of their household.  The Tribunal considers there is insufficient available information to be satisfied that the applicant’s continued presence in Australia will provide greater stability to the child.

24. If the child’s mother makes good on her statement she will leave her daughter to live in Iraq with the applicant then this would not be in the child’s best interests. However it is not a direct and inevitable consequence of the visa cancellation, but the choice of the child’s mother. The child’s mother will be making the decision to go to Iraq in disregard of her daughter’s best interests.

25. Nevertheless the Tribunal acknowledges the child’s attachment to the applicant and accepts that minimising her distress at his situation is in her best interest. The Tribunal therefore gives some weight in the applicant’s favour to this primary consideration.

    Any other relevant matters

26. There is no information regarding other relevant matters, before the Tribunal.

    Weighing the considerations

27. The Tribunal considers that the applicant’s non-compliance was a very serious breach of his legal responsibility to provide accurate information in relation to his Protection visa application.  The applicant has not provided a reasonable explanation for his non-compliance. 

28. There are some factors that weigh in the applicant’s favour, such as his cooperation with the Tribunal, contribution to the Australian community, his otherwise law-abiding presence in Australia, and the hardship caused to others.  Further, the Tribunal has considered [Ms B’s daughter]’s best interests are that the cancellation of the applicant’s visa is revoked.  While this is a primary consideration, it does not follow that the Tribunal must find that the visa should not be cancelled. Rather, the Tribunal may exercise its discretion to cancel the visa if it finds that other considerations outweigh the best interests of the child.

29. In the particular circumstances of this case the Tribunal considers that the seriousness of the applicant’s breach and lack of substantive mitigating or compelling circumstances for the non-compliance, significantly outweigh factors favourable to the applicant’s case that his visa cancelation be revoked. These include the best interests of [Ms B].

30. The Tribunal therefore considers that the applicant’s visa should be cancelled. 

    CONCLUDING PARAGRAPH

31. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

32. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

    Melissa McAdam
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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