1811490 (Refugee)

1811490 (Refugee) [2019] AATA 4756 (19 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1811490
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Meena Sripathy
DATE:19 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 19 July 2019 at 3:27pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – religion – Sunni Muslim – incorrect answers in application – victim of kidnapping and torture – association with Sunni mosque – fear of Al Dawa Party – voluntary return to Iraq after visa granted – ill health of parents – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 46A, 48A, 101, 107, 109,
Migration Regulations 1994 (Cth), r 2.41
CASES
Ibrahim v MHA [2019] FCAFC 89

MIAC v Khadgi (2010) 190 FCR 248

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s101 of the Act and determined, having considered the prescribed circumstances under r.2.41, that the visa be cancelled.
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 5 June 2019 to give evidence and present arguments. 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.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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.
Notice of intention to consider cancellation under s.107
A notice of intention to consider cancellation (NOICC) was sent to the applicant on 27 July 2017. The notice said the delegate considered that the applicant has not complied with s101(b) of the Act which required that no incorrect answers are given or provided in his visa application. The notice provided particulars of information given by the applicant in his protection visa application that were alleged to be incorrect. Specifically, it referred to his answers to questions 42-48 where he referred to an attachment setting out his Statement of Claims. The notice particularised the following instances of non compliance:
·He claimed he would be seriously harmed or killed if he returned to Iraq. However, he voluntarily returned to Iraq on two occasions for significant periods of time (six months on two occasions) without apparent issue or impediment. This conduct indicates he did not hold the adverse profile as claimed in his protection visa application and did not experience the claimed harassment.
·He claimed he worked at a Sunni mosque and was kidnapped and tortured by Shiite militias and feared this would happen to him again. This is incorrect because he voluntarily returned to Iraq on two occasions for significant periods of time (six months on two occasions) without apparent issue or impediment. This conduct indicates he did not hold the adverse profile as claimed in his protection visa application and did not experience the claimed harassment.
·He claimed he would be harmed by the Al Dawa Party if he returned to Iraq. This is incorrect because he voluntarily returned to Iraq on two occasions for significant periods of time (six months on two occasions) without apparent issue or impediment. Travel stamps on his Titre de voyage indicates he entered and existed from Al Basrah Airport and Al Basrah was his former place of residence in his protection visa application. His first visit back to Iraq was less than one year after he was granted protection. This conduct indicates he did not hold the adverse profile as claimed in his protection visa application and did not experience the claimed harassment.
The NOICC set out the evidence before the Department for the allegation of non compliance including:
·His Form 866 and Attached Statement of Claims
·Movement records indicating travel outside Australia on the following dates: - [June] 2013 - [December] 2013
- [December] 2014 to [June] 2015.
·Interview by DIBP staff on arrival into Australia [in] June 2015 where he confirmed he had travelled to Iraq and showed travel stamps on his titre de voyage
The applicant was also invited to comment or respond to country information before the Department that indicates that government forces retain control over Southern Iraq including Basra and, according to the UK Home Office, the security situation in the southern provinces of Iraq including Basra, is considerably more stable than in other parts of Iraq. The UK Home Office Report, 10 August 2016, Country Information and Guidance Iraq: Sunni (Arab) Muslims stating there are few reports that Sunnis experienced human rights abuses at the hands of Shia militias or unknown perpetrators in the southern governorates and that in general, a Sunni will not face a real risk of persecution or serious harm in the southern governorates. Reference is also made to DFAT information that a number of Iraqis return home, sometimes only months after securing residency in Australia, to reunite with families, set up businesses, or take up or resume positions in the government or public sector. The practice of seeking asylum then returning home once conditions permit is well accepted among Iraqis, as is evidenced by large numbers of dual nationals from the US, Western Europe and Australia returning to take up residence and jobs in Iraq…
In response to the NOICC the applicant provided two medical documents and translations:
·A document dated 1/06/2013 from [named doctor], [Hospital 1], referring to patient [Mr A], born in [year], has suffered from [a medical condition]. The letter indicates he was referred from [Hospital 2] on 1/06/2013, and was last medically examined on 16/11/2013.
·A document dated 5/12/2014 from [another doctor] referring to patient [Ms B] born [year], who was referred by [Hospital 2]. The patient is referred to as a local of Al Zubair, and had developed a cancer caused by smoking.
No further explanations or responses were provided by the applicant to the NOICC.
ITOA Assessment
On 12 October 2017 an International Treaties Obligations Clearance letter was issued finding that Australia does not have non-refoulement obligations to the applicant.
On 3 April 2018 a delegate of the Minister made a decision to cancel the visa, having considered the applicant’s response to the NOICC and the matters relevant to exercising the discretion whether or not to cancel the visa.
Evidence before the Tribunal
On 29 May 2019 the Tribunal received the following documents in support of the applicant’s review application:
·A Statutory Declaration by the applicant dated 28 May 2019. The declaration attaches and confirms the contents of the applicant’s Statement dated 10 December 2011 lodged with his protection visa application. It also provides further background information about his background, reasons for coming to Australia and journey here. It provides details of his two visits to Iraq in June 2013 and December 2014 and addresses why he cannot return to Iraq.
·Copies of medical letters relating to his father and mother (provided previously).
·Letter from [Mr C], Imam of [Suburb 1] Prayer Hall dated [October] 2018 stating the applicant has been attending Sunni Friday sermons from time to time since 2013 and he has a good reputation in the community.
·Copy of applicant’s RMS Driving record.
·A GP Mental Health Plan relating to the applicant dated [April] 2018.
·Letter from [Organisation 1] addressed to the applicant regarding sponsorship of a child in [Africa].
On 5 June 2019 the applicant appeared before the Tribunal to give evidence and present arguments. A summary of his evidence at the hearing follows.
He lives with his brother in rented accommodation. He is not working, and has not worked since he arrived in Australia. He relies on income from Centrelink and is looking for work. His brother has been [working], although he is not working at present.
When asked why he has not worked since he arrived in Australia the applicant said he suffered an injury to his head in the past and also to his arm. When asked when this occurred he indicated it was during an incident at the mosque in Iraq in 2009 when he was kidnapped and tortured. The Tribunal indicated that it would come back to discuss this later in the hearing. It asked if he has sought any medical treatment regarding this injury since coming to Australia. He said he went to a doctor who sent him for an MRI some years ago but they said they saw nothing there. He has not been diagnosed for any head injuries or any other conditions since coming to Australia.
The Tribunal asked the applicant where he lived prior to coming to Australia. He lived in Al Zubayr, Basra from birth until he left for Australia. He lived with his parents and brother. Before he and his brother came to Australia, they he moved their parents to his paternal uncle’s farm in [another location], which is about [number] hour’s drive from Al Basra. They have lived there since then, with his paternal uncle, aunty and their [children]. All the children are [adults], none are married. They work on the family farm. The applicant’s uncle supports his parents. He has sent money on one or two occasions only.
The Tribunal asked the applicant about his marital status. He said he was married before he came to Australia, but when he came here, his wife went back to stay with her parents. They had separated by that time. They later got divorced, in 2013 when he returned to Iraq. They divorced in Al Zubayr. He appeared in court for the divorce. The relationship broke down due to family problems.
The Tribunal asked the applicant why he sought protection in Australia. He said he came to Australia because there was no security in Iraq. They were threatened and so they left. He worked at [a Sunni] mosque in [named location]. In 2010 he was threatened by Al Dawa party people. He and his family were threatened because they are Sunni and the people who threatened them were Shia. The applicant said he was threatened first, they told him to stop his work at the mosque or they would kill him. He did not stop, and returned to the mosque. Two days later, when he was leaving the mosque in his car, he was stopped by a group of 4 men and they took him in their car to a house and tortured him. They burned his face (the applicant pointed to [a part of his face]), hit him on the head and cut his [fingers]. They kept him for 2 days. The applicant went back and told his father. His father’s response was that they should leave the country. Before this incident the same people had taken his brother and tortured him in 2009. They took him for 2 days and tortured him and told him to make his father and brother stop working at the mosque. When his brother came back and told his father, his father arranged for them to leave. The applicant said they were afraid of the Al Dawa Party and this is why they left Iraq.
The Tribunal put to the applicant that this account he just provided of what happened to him in Iraq before coming to Australia is different to what he stated in his application for protection and also inconsistent with what he stated in his Statutory Declaration of 28 May 2019. In those two documents he referred to incidents in August 2011 when his brother was taken by masked men from his house and kept for half a day and beaten and then the next day he was stopped while driving and taken into another car and driven to a house [number] minutes away, where he was beaten and tortured including having his face burned, hands cut and head hit. However, to the Tribunal the applicant indicated that his brother’s kidnapping occurred in 2009 and he was held for 2 days. The applicant told the Tribunal he was threatened in 2010 and then 2 days later he was kidnapped and tortured and held for 2 days. The Tribunal put to the applicant that these inconsistencies are about material aspects of the claims and it may cause the Tribunal to have concerns about the truthfulness of his claims. In response the applicant said these things happened to him in Iraq and that is why he left.
The Tribunal asked the applicant about his trips outside Australia after he was granted protection on 3 July 2012. He said he departed Australia [in] June 2013 because his father was very sick. It was an emergency, his father was in hospital. [Medical details deleted]. He was already in hospital when the applicant arrived in Iraq. He stayed in hospital for 6 months. He was at [Hospital 1]. The applicant said he would go and visit him at night. The Tribunal clarified with the applicant whether he was claiming his father was in hospital throughout this period of 6 months. He then said he was intermittently brought home to the paternal uncle’s place and then taken back to the hospital. He was in hospital 4 or 5 times in this period. When he was in hospital the applicant visited him there at night. The applicant stayed at his uncle’s place at the farm. When asked why he stayed for so long he said he had to care for his father. The Tribunal asked what care he could give if his father was in hospital for most of this period. He said he would wash his clothes, take him for walks and do everything for him. The Tribunal noted that just now he said his father was in hospital for most of the 6 month period.
The Tribunal asked the applicant about the letter from the doctor relating to his father, noting that it is dated 1 June 2013 but refers to an examination done in November 2013, and put to him that this may cause the Tribunal some concerns about its reliability. (The interpreter confirmed that dates on the letter matched the dates in the translation.) The applicant responded that he was admitted to hospital on 1 June 2013 and he was examined again in November 2013. The Tribunal asked, if he stayed this long or was admitted on numerous occasions, does he have more evidence of his periods in hospital. The applicant said he had no other evidence, only this one letter.
The Tribunal asked the applicant how, after seeking protection from Australia in 2012, he was able to travel back to Iraq less than one year after being granted protection and stay for 6 months. He said he risked his life to go back and only did it because of his father’s ill health.
The Tribunal asked about his next trip outside Australia. He said he went back because his mother was suffering from cancer. She was also at [Hospital 1]. He stayed at his uncle’s house at the farm. She was at the hospital throughout this period, and he would visit her there, travelling back and forth from the farm. The Tribunal asked why he did this if his life was in danger. He said he had to go back to care for his mother.
The Tribunal noted that both the letters from the doctors in relation to his parents describe them as locals of Al Zubayr and this may lead the Tribunal to find they did not move from Al Zubayr. He said they were previously residing in Al Zubayr and that is why the hospital letters say that. Afterwards, because of the incidents at the mosque, they moved to his uncle’s place.
The Tribunal asked the applicant about the letter on the Department file from the Iraqi Consulate in Sydney dated [December] 2014, confirming his citizenship. The applicant appeared to be confused about this and repeatedly referred to the letter he requested from his mosque to confirm that he is a Sunni Muslim. The Tribunal asked the applicant if he approached the Iraqi Consulate in Sydney to obtain this letter. He was unable or unwilling to answer this question.
The Tribunal asked the applicant about the departure stamp that appears on his travel document with the date [January] 2015. He said he attempted to travel to [Country 1] on that date but was sent back because he was told he needs a visa and cannot travel on an Australian travel document. When asked why he was trying to go to [Country 1], he said he was trying to return to Australia because of difficulties in Iraq. The Tribunal asked why he did not return to Australia from Iraq directly. He provided no response. It noted that he stayed for another 6 months, returning in June 2015. He said eventually his father was able to find someone to take him to Basra airport and he was able to depart safely. The Tribunal noted that the applicant’s brother came in March 2015 and asked how and why he would have come if it was dangerous for the applicant. He said his brother came because their mother wanted to see him. He only came to see his mother.
The Tribunal asked the applicant how his parents’ health is now. He said they are not well. When asked who takes care of them, he said his uncle and his family does. When asked why they could not care for him previously, he said that they are his parents and so his responsibility.
The Tribunal put to the applicant that it has concerns, given the inconsistencies in his account of what happened to him in Iraq, together with his two trips to Iraq for 6 months each time so soon after being granted protection, that he did not give a truthful account of his circumstances in Iraq when he applied for protection. In response he said he put his life in danger to visit his parents because they were ill. He is the oldest son and he had to go for their sake. The Tribunal put to him that even if it accepted this as a reason for the visit, the length of the visits each time suggests he was not in fear for his life. He repeated that he was only there for his mother and father.
The Tribunal asked about how he obtained his divorce. He confirmed he did this during the visit in 2013. It asked if this was also a purpose of his visit on this occasion. He said it was. He attended the court on one occasion for the divorce. He has the documents for this, which are the untranslated documents on the Department file obtained from him at the airport. He indicated he has a translation of these documents which he can provide.
The Tribunal put to the applicant that another concern it has is the letter he obtained from the Iraqi Consulate and his ability to enter and depart Basra airport with no problems, are not consistent with his fears of the Al Dawa Party and the authorities in Iraq, given that the governing party at this time was led by Nouri Al Maliki who is the head of the Al Dawa Party. The applicant maintained that he feared the Al Dawa Party not the government and denied that there was any connection between the two. He also said that he was only able to come in and leave the airport with the assistance of his father’s friend who works at the airport and escorted him in and out. When asked for more details of this individual, he said he worked to drop off and pick people up and also as an employee at the airport. The Tribunal indicated it may have difficulty accepting that a person who works as a driver would have the authority to escort him in and out of the airport undetected. He said he has worked at the airport for many years and knows people there.

The Tribunal asked the applicant about the phone call he made to the Department prior to travelling to Iraq. It noted in his Statutory Declaration he referred to doing this before the first trip. However, documents on the Department file indicate there is a record of him making this call prior to the second trip, but not the first and asked if it is possible he did it the second time. He said he cannot recall and it is possible. He may have called Centrelink the first time. When asked why he called Immigration the second time, he said he had heard from others that he should do that and so he did.
The Tribunal discussed with the applicant the discretionary factors it must consider under r.2.41. It put to him that if it were to conclude that he provided incorrect information in his claims for protection, it is likely to find the delegate would not have granted him a protection visa. The applicant made no further comment.
It asked him what present circumstances he wants the Tribunal to consider. He said he just wants the Tribunal to grant him protection. It would make his parents very happy. When asked if there are any activities or contributions to the community he would like the Tribunal to consider, he referred to paying $40 per month to support African children. The Tribunal noted the letter provided about this from [Organisation 1].
Regarding the Mental Health Care Plan document dated April 2018 he submitted, the Tribunal asked him if he has seen any other professionals since then. He said he has not. Apart from asthma, he has no other diagnosed conditions or treatment.
He has been studying English and is looking for work.
The Tribunal invited the representative to make submissions. She requested two weeks to provide written submissions addressing matters arising during the hearing. She will also submit documents discussed during the hearing, including the translation of the divorce.
On 3 July 2019 the Tribunal received from the applicant’s representative a submission and the following documents: translation of his marriage certificate relating to his marriage in February 2011, translation of divorce documents relating to that marriage, dated September 2013, and a copy of the letter from the Iraqi Consulate General held on the Department file, with a note referencing his contact with the Department prior to the second return to Iraq was also provided.
The submission addresses the prescribed circumstances set out in r.2.41 regarding the discretion to cancel the visa. As relevant they are discussed below. No submissions are made relating to whether there was non compliance as alleged in the notice.
CONSIDERATION
As indicated above, 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. However, 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. In this case a notice (NOICC) was issued dated 27 July 2017.
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 in that it identified the specific information that was alleged to be incorrect and the basis for the allegation.
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 was non-compliance with s101(b) in the following respects:
·He claimed he would be seriously harmed or killed if he returned to Iraq. However, he voluntarily returned to Iraq on two occasions for significant periods of time (six months on two occasions) without apparent issue or impediment. This conduct indicates he did not hold the adverse profile as claimed in his protection visa application and did not experience the claimed harassment.
·He claimed he worked at a Sunni mosque and was kidnapped and tortured by Shiite militias and feared this would happen to him again. This is incorrect because he voluntarily returned to Iraq on two occasions for significant periods of time (six months on two occasions) without apparent issue or impediment. This conduct indicates he did not hold the adverse profile as claimed in his protection visa application and did not experience the claimed harassment.
·He claimed he was detained and harmed by the Al Dawa Party and feared being harmed again by them if he returned to Iraq. This is incorrect because he voluntarily returned to Iraq on two occasions for significant periods of time (six months on two occasions) without apparent issue or impediment. Travel stamps on his Titre de voyage indicates he entered and existed from Basrah Airport and Al Basrah was his former place of residence in his protection visa application. His first visit back to Iraq was less than one year after he was granted protection. This conduct indicates he did not hold the adverse profile as claimed in his protection visa application and did not experience the claimed harassment.
The Tribunal has considered the applicant’s response to the NOICC, and his submissions, written and oral evidence to the Tribunal and reaches the following conclusions about whether there has been the non-compliance as alleged.
Whether the information that the applicant worked at a Sunni mosque and was kidnapped, harmed and tortured by Shi’ite militia and feared harm from the Al Dawa Party is correct
For the following reasons the Tribunal is not satisfied that the applicant was kidnapped and tortured by Shi’ite militia in August 2011 or that he feared harm from the Al Dawa party in Iraq if he returned and therefore finds that these claims he made in his protection visa application are incorrect.
Firstly, his evidence to the Tribunal about what happened to him in Iraq that led him to depart was inconsistent with the claims made in his protection visa application in material respects. In his protection visa application, he made claims for protection in a Statutory Declaration dated 11 December 2011 and gave oral evidence in an interview with the delegate, providing details of incidents in August 2011 in which his brother and he were threatened and harmed by Shi’ite militias which led them to flee the country. He repeated these claims in a Statutory Declaration dated 28 May 2019 provided to the Tribunal. However when asked about the reasons he left Iraq at the hearing on 5 June 2019, he provided a different account. He referred to himself being threatened first by the Al Dawa people in 2010, and then two days later he was taken away and held for two days. He said his brother had a similar incident in 2009, and was also taken away for 2 days. When the Tribunal invited him to respond to these inconsistencies at the hearing he offered no explanation or clarification, simply responding that the things that happened to him in Iraq were true. While the Tribunal acknowledges the passage of time that has passed since the applicant left Iraq and first made his claims, and that this may have affected his recollection of events, it considers matters such as the order of who was threatened first and whether it was days or years between the threats to him and his brother, are of such material significance that his inability to provide a consistent account leads the Tribunal to have serious doubts about whether he is giving a truthful account. The Tribunal notes a reference to him suffering depression in the Mental Health Plan document submitted, but in the absence of any further evidence of a medical report explaining the nature of the condition and its impact, if any, on, for example, the applicant’s memory, it considers the information in this document alone is insufficient to explain the discrepancies in his evidence.
Adding to these concerns, the applicant returned to Iraq less than one year after he was granted protection on the basis of a claimed fear of return. He travelled and stayed in Basra where the claimed incident occurred, and he stayed there for 6 months. He travelled again one year later, for another period of 6 months. The Tribunal has considered the applicant’s explanations for these visits and the evidence submitted in support, but his explanations and evidence have not allayed the Tribunal’s concerns about these visits being so soon after the grant of his visa and for such an extended period. The applicant submitted that his first visit was because his father was ill. The Tribunal has some doubts about this explanation. He has submitted a letter from [Hospital 1] dated 1 June 2013 but which referred to the patient’s last examination on 16 November 2013. In his Statutory Declaration of May 2019, the applicant stated he went to look after his father and stayed with him throughout the 6 months providing him care with daily activities. However in his oral evidence to the Tribunal he said his father was hospitalised for much of the period of his visit and he visited him in hospital in the evenings. When asked if he had any other evidence of his stay in hospital during this period apart from the one letter submitted, he said he does not. On the evidence before it, the Tribunal does not find convincing or credible his explanation that his stay for 6 months in June 2013 was because of his father’s ill health or need for his care. Regarding the second visit, the applicant provided a letter from [a hospital], which refers to his mother as a local of Al Zubair, contrary to the applicant’s claims that his parents had moved from Al Zubayr some years prior. The applicant again stayed for 6 months on this occasion, and has not provided a convincing or plausible reason for why and how he was able to stay for this length of time. In the absence of credible explanations the Tribunal finds the applicant’s return to Iraq on two occasions for 6 months each time, so soon after his grant of a protection visa undermines the credibility of his claims about what happened to him in Iraq that led him to depart in the first place and undermines his claimed fear of return to Iraq.
Adding further to the Tribunal’s doubts about the credibility of the applicant’s claims was his response when asked by the Tribunal how he obtained the letter from the Iraqi Consulate and how he was able to enter and depart Basra airport with no problems given his claimed fear of the Al Dawa Party and the authorities in Iraq. Country information before the Tribunal indicates Prime Minister Al Maliki was the leader of the Al Dawa Party, and the party was in effect leading the state and deeply involved in government actions at that time.[1] His response that he feared the Al Dawa Party and not the government and denial that there was any connection between the two adds to the Tribunal’s concerns about the veracity of his claims. The Tribunal also does not find convincing or plausible his explanation that he was only able to enter and exit the airport with the assistance of his father’s friend who was a driver at the airport and who facilitated him through. If the applicant was truly targeted by the Al Dawa Party as claimed, the Tribunal considers he would not have voluntarily approached the Iraqi consulate to obtain the letter confirming his citizenship in December 2013 and the Tribunal doubts he would have been able to enter and exit Basrah airport without incident as he had done.
[1] ‘Maliki Re-Elected as Head of Dawa Party’, Al Monitor, 18 March <
These reasons cumulatively lead the Tribunal to doubt the credibility of the applicant’s claims that he was kidnapped and beaten for working at a Sunni mosque and on this basis it concludes that he provided incorrect information in his application when he made his claims of past harm and fear of return to Iraq because he was targeted by Al Dawa Party.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal discusses each of the prescribed circumstances and other matters below:
· the correct information
The Tribunal above rejected the applicant’s claims that he was targeted by Al Dawa militia for reasons of his work at a Sunni mosque. However it is prepared to accept that he is Sunni Muslim, though not the subject of adverse attention of Al Dawa or any other Shia militia.
· the content of the genuine document (if any)
This consideration is not relevant as there is no allegation of a non-genuine document.
· 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 decision to grant the applicant a protection visa was made on the basis of a Protection Obligations Evaluation made by a delegate of the Minister on 20 February 2012 following an interview with the applicant. A copy of the decision record is before the Tribunal.[2] The delegate accepted the applicant’s claims and found that, by association with his father’s activities with [a mosque], the applicant had been identified by Al Dawa party members, had a profile, and was previously mistreated at the hands of possibly Al Dawa members and it was on this basis that he was found to meet the definition of refugee and be a person to whom Australia owed protection obligations.
[2] [File number] folios 17-20
The Tribunal has considered but rejects the submissions made by the applicant’s representative which maintains that the applicant’s claims in the application were correct and that he travelled back to Iraq on 2 occasions knowing that his life was at risk but did so because of his obligations to his parents as the oldest son. The Tribunal has, above, rejected the applicant’s claims of an adverse profile and past harm. The delegate’s reasons indicate that the decision to grant the visa was based substantially if not wholly on the incorrect information about his experience of past harm and adverse profile. The Tribunal accepts that the applicant is Sunni Muslim, however the delegate’s decision, acknowledging that Sunnis constitute a minority in the south of the country, relied on the applicant’s specific profile as a result of his claimed association with the mosque and having been previously identified by Al Dawa members, to conclude he was at risk of future harm rather than his Sunni religion on its own.
The Tribunal gives this factor significant weight in favour of cancelling the visa.
·the circumstances in which the non-compliance occurred
The applicant arrived in Australia by boat in October 2011 and made his claims in the context of his application for determination of refugee status. The Tribunal notes that he asserted his claimed fear of the Al Dawa Party because of his association at the Sunni mosque at the entry interview and subsequent protection visa application. However, less than one year after being granted protection, the applicant voluntarily returned to Iraq and stayed for a significant period of 6 months. The Tribunal has considered, but rejects, that he went back solely for reasons of his father’s ill health and need for care.
In these circumstances, the Tribunal does not accept the incorrect information was provided in circumstances of the applicant holding a genuine subjective fear of return to Iraq and this factor weighs in favour of cancelling the visa.
·the present circumstances of the visa holder
The applicant has now been in Australia for almost 8 years. He is an unemployed, single man. He resides with his brother. He has not been employed at any time since his arrival. He told the Tribunal he is looking for work but has had difficulties because of his limited English language skills and health issues. However, the only health issue he has referred to having is asthma and he has not provided any evidence to indicate why or how it prevents him from obtaining employment.
A GP Mental Health Plan was provided by the applicant dated [April] 2018, referring to a diagnosis of depression. However when asked about this at the hearing, the applicant stated that he has not seen any counsellor or psychologist since then and is not undergoing any treatment for this or any other condition.
The Tribunal acknowledges the letter provided from [Mr C], Iman of [Suburb 1] Prayer Hall, of [an association], confirming that the applicant attends the Sunni Friday sermons from time to time and has a good reputation in the community.
The applicant holds an Unrestricted Class C Drivers Licence. He provided a copy of his driving record, which (as mentioned below) is not particularly favourable.
The Tribunal considers the available evidence relating to the applicant’s present circumstances provides little support against cancelling the visa.
·the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The visa cancellation process appears from the Department file to have been triggered by a referral following the applicant’s return from his second visit to Iraq in 2015 and subsequent application for citizenship in July 2016 and it notes that he disclosed his travels in that citizenship application. The Tribunal also notes that the applicant contacted the Department to seek permission to travel to Iraq prior to his second visit, although there is no evidence before the Tribunal to indicate he made any similar enquiry before his first visit.
The applicant responded to the s107 notice by providing medical reports purporting to relate to the periods of his visits, though he provided no further explanation at that time. Before the Tribunal he explained the reasons for his return visits to Iraq related to the ill health of his parents. He maintained that he was at risk of harm throughout his periods in Iraq and that he did not give incorrect information in his application. The applicant’s representative argued that he was unrepresented at the time of his response to the Department, and maintains the truthfulness of his original claims. However, the Tribunal, above, has concluded otherwise and rejects that the applicant held a genuine subjective fear of return to Iraq.
On balance, the Tribunal considers the applicant’s subsequent behaviour concerning his obligations weighs in favour of the visa being cancelled.
·any other instances of non-compliance by the visa holder known to the Minister

There are no other known instances of non compliance by the applicant known to the Tribunal, and this factor would appear to weigh against cancelling the visa.
·the time that has elapsed since the non-compliance
The non compliance occurred over 7 years ago and in this time the applicant has been living lawfully in the community. The Tribunal notes that he has spent a total of 12 months back in Iraq in this time, but that he has not travelled back there again since his last return in July 2015.
The passage of significant time since the non-compliance weighs against cancelling the visa.
·any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant provided the Tribunal a copy of his driving record indicating four instances of exceeding speed limit offences between 2013 and 2018.
The Tribunal considers the speeding offences are not of themselves so serious as to warrant cancellation of a permanent protection visa, and no additional information pertaining to the context or consequences of the offences is before the Tribunal, therefore the Tribunal gives minimal weight to this factor in its discretion to cancel the visa.
·any contribution made by the holder to the community.
The applicant provided evidence of a letter from [Organisation 1] dated September 2018 indicating he sponsored a child in [Africa]. He has provided no other evidence of contributions made to the community.
The Tribunal considers the evidence of the applicant’s contributions to the community in the past 7 years is minimal and accords this factor some weight in favour of cancellation of the visa.
Other matters
In addition to the above factors that the Tribunal is required to consider, the Tribunal has also had regard to other matters set out in policy including mandatory legal consequences, non refoulement obligations and the hardship caused to him of cancellation of his visa.
With regard to mandatory legal consequences, the Tribunal observes that cancellation would result in the applicant being unlawful and subject to detention and in light of his manner of entry to Australia, there are provisions in the Act which prevent him from making a valid visa application without the Minister’s intervention (s46A of the Act). Although he would be barred from making further visa applications and liable to detention in Australia, the evidence of the letter from the Iraqi consulate confirming his citizenship indicates he would be eligible to obtain a passport or other travel document and return to Iraq and be admitted to the country as he has clearly done previously.[3]
Non refoulement obligations
[3] See DFAT Country Report on Iraq 26 June 2017 paragraph 5.23
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
The Tribunal accepts that the applicant may be prevented from applying for or being granted a protection a visa because he has already made a protection visa application (s48A bar). Accordingly, the Tribunal considers the visa cancellation would lead to the applicant being removed from Australia, and has proceeded to consider whether this would breach Australia’s international non-refoulement obligations.
Above, the Tribunal rejected his claims regarding his profile with Al Dawa militia and past harm, however it accepts that the applicant is Sunni and lived in Al Zubayr area of Basra. It accepts that the majority of the population in the southern governorates and Basrah in particular are Shia Muslim Arabs, although there is also a considerable Sunni minority. It also accepts, on the basis of country information, that Sunnis in Iraq have felt marginalised as a minority community since the removal of Saddam Hussein and the Sunni dominated Ba’ath party from government, and that more recently this has been exacerbated by a perception among the majority Shia population that the Sunni community was associated with ISIL, and by the government’s inability to assist Sunnis attempting to flee ISIL. [4] The country information indicates the conflict with ISIL from 2014 to 2017 had a significant impact in terms of sectarian tensions in Iraq, and that despite the formal defeat of ISIL in December 2017 the impact is likely to continue in the forseeable future. The Tribunal accepts that sectarian tensions persist in Iraq, and that Sunnis continue to face a degree of harassment and discrimination.[5]
[4] DFAT Country Report on Iraq 9 October 2018
[5] DFAT Country Report on Iraq 9 October 2018 , para 3.35-3.37 ; As ISIS Is Driven From Iraq, Sunnis Remain Alienated, 26 October 2017, The New York Times >
The Tribunal also notes and has considered a report of an explosion at the Khalid bin Walid Mosque in Zubayr in October 2018.[6] It acknowledges that, although no casualties were reported in this incident, the blast suggests that security in Zubayr and Basra more generally remain somewhat volatile.
[6] Explosion in Iraq’s southern Basra targets mosque, no casualties
Country information before the Tribunal also indicates that while southern Iraq has largely escaped the ISIL violence that hit the rest of Iraq and this part of Iraq is considered ‘more secure’ than other parts of the country, problems of criminality, drug abuse, and violence between Shia armed groups involved in militia and tribal groups also occur including organised crime by militias, as well as kidnapping, extortion, and sex trafficking.[7]
[7] See DFAT Country Report on Iraq, 9 October 2018, p29, EASO COI Report Iraq Security Situation, March 2019, p164
Against this general country information, the Tribunal takes into consideration the applicant’s voluntary return to Basrah on two occasions since he arrived in Australia, in 2013 and 2015 at the height of the conflict with ISIL. He has not claimed, and there is no evidence before the Tribunal that he faced any apparent adverse incidents during his stays there. He remained in Iraq for 6 months on each occasion. While he claimed that he stayed on a remote farm and did not do much while he was there, the Tribunal found his evidence about this to be inconsistent and contradictory. It does not accept, on the limited evidence provided, that he did not stay in his home town of Al Zubayr or that he rarely left the home. He provided evidence that his parents were [hospitalised] in these periods and he attended court to obtain a divorce in 2013, in direct contradiction of his claims. He has parents, uncle, aunty and adult cousins who have been living continuously in the region and has not claimed any adverse incidents in respect of any of them. In 2015, while he was there, his younger brother also came to Iraq to see the parents and stayed on after the applicant left.
Taking all of this into account, the Tribunal is not satisfied that the applicant had a subjective fear of harm when he visited Basrah in 2013 or 2015 and on this basis, and taking into consideration information about the current country circumstances, it is not satisfied that he has a subjective fear of return to Iraq now.
For all of these reasons the Tribunal is not satisfied the applicant, with his profile and past experiences, faces a real chance of serious harm in future were he to return to Basrah governorate for reasons of his Sunni religion or any other reason, notwithstanding the security concerns and volatility in the region. It is not satisfied that non refoulement obligations are owed to the applicant and therefore considers this is not a factor that weighs against cancellation of the visa in this case.
Hardship caused to the applicant of cancellation
The Tribunal accepts that the applicant prefers to continue to reside in Australia on a permanent basis. It accepts that he has access to income support here which he would not have access to in Iraq, and that he has been living and has integrated to some extent into the local community here over the last 7 years. It accepts that he has a brother here, with whom he travelled to Australia and with whom he has continuously lived. It infers from this that separation from him would cause them both a degree of hardship and loss. However, the Tribunal notes that the applicant did not make reference, in his oral evidence or post hearing submissions, to hardship to his brother if his visa is cancelled and there is no evidence before the Tribunal from the brother directly about the impact of cancellation on him.
Having carefully considered all of the above, the Tribunal concludes on balance the factors in support of cancelling the visa in this case outweigh the factors that weigh against cancelling it. In its assessment, the Tribunal places significant weight on the applicant’s return to Iraq on two occasions for 6 months each time soon after grant of his protection visa, with no apparent incident and its finding that the delegate’s decision to grant the visa was substantially based on the incorrect information of the applicant’s protection claims. While the Tribunal gave consideration to the applicant’s circumstances in Australia, including the passage now of almost 8 years since his arrival, his integration into the community and the presence of his brother here, it also took into account that he has not held any employment since his arrival, has minimal family ties in Australia apart from his brother and there is limited evidence of his contributions to the community. Ultimately after carefully weighing all of the above, the Tribunal considers the factors in favour of cancelling outweigh those against it and the Tribunal concludes the visa should be cancelled.
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Meena Sripathy
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.

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Immigration
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Citations

1811490 (Refugee) [2019] AATA 4756

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Ibrahim v Minister for Home Affairs [2019] FCAFC 89

[2019] AATA 4756

19 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal