1812307 (Refugee)

1812307 (Refugee) [2018] AATA 5393 (21 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1812307
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Rodger Shanahan
DATE:21 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 21 November 2018 at 10:06am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect information on form – religion – Sunni – threats by Shia extremists – voluntary return and lengthy stay in Iraq after visa grant – no harm or problems experienced – inconsistent evidence – credibility issues – no compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 424AA
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
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 22 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
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.
Did the notice comply with the requirements in s.107?
In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. The applicant’s adviser raised some concerns both orally and later in writing regarding the validity of the Notice. In essence it claims that the notice was invalid because it did not particularise whether the applicant’s profile was incorrect (either as a Sunni who suffered religious persecution or who was accused of being behind a [January] 2012 bombing), simply that he returned to Iraq on three occasions. It also took dispute with the Notice regarding the applicant’s failure to state whether he had been known by other names, saying that the relevant information was before the delegate even if the applicant had answered ‘N/A’ to the question on the form
I am not satisfied with the adviser’s claim that the Notice was not sufficiently particularised regarding which profile was being questioned (Sunni suffering religious persecution/Sunni behind a bombing of Shi’a). The issue at hand was that based on these profiles he would be harmed by Shi’a extremists, JAM and/or anti-occupation forces. The Notice particularised his profile (Sunni Muslim in a predominantly Shi’a area of Iraq), the nature of his alleged persecutors, his voluntary returns to Iraq, one of which only five months after his protection visa grant and the extended period of time that he stayed in the country even though he claimed that he would be targeted or killed if he returned to Iraq.
The response from the applicant to the Notice (folio 83) indicated that the applicant understood the particularised information contained in the Notice and sought to address the concerns of the Department relating to his profile, the nature of his alleged persecutors and his rapid and lengthy return to Iraq after a positive protection visa decision.
In addition, the concern raised by the adviser regarding the nature of the different names used in Iraqi society and whether the applicant knowingly provided false information when he wrote ‘N/A’ to whether he was known by any other name is not entirely convincing. Regardless, even if I were to find this claim to have provided false information not to have been made, it does not invalidate the s 107 Notice itself given I am satisfied that the concerns set out in the Notice itself were sufficiently particularised.
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?
[In] April 2012 the visa holder arrived on Christmas Island as an Illegal Maritime Arrival (IMA) claiming to be from Iraq seeking asylum in Australia. The visa holder attended an Entry Interview on 24 April 2012 in which he described incidents that led him to decide to leave Iraq and travel to Australia. On 4 August 2012 the visa holder lodged an application for a Protection (subclass 866) visa. In support of his application the visa holder provided a Statutory Declaration dated 4 August 2012.
In his Statutory Declaration in support of his Protection visa application the visa holder stated:
a.His name is [Name 1] and he is an Iraqi citizen of Arabic descent and a Sunni Muslim. He stated that since the fall of Saddam Hussein in 2003 he and other Sunni Muslims became the target of sectarian violence and that he and his family were targeted by Shia extremists namely Jaish al-Mahdi (‘Mahdi Army’). He stated that in his village [in Thi Qar province] his family were a minority and therefore easy targets of this group.
b.In October 2011 a group of Shia extremists raided his home and they detained and took him to their headquarters where he was held for two months during which he was subjected to torture for five days of this period of time. He claimed that during this time he was threatened into conversion of his religion to become a Shia Muslim and he was released on these terms.
c.He stated that [in] January 2012 an [explosion] that killed [a number of] Shia Muslims on their way to a pilgrimage triggered more violence towards the Sunni Muslim [population] and he feared that he would be the next to be targeted (as revenge). He stated that following this incident the Shia extremists came looking for him at his family home, however he had already gone into hiding at a friend’s house as he feared being killed if he returned home.
d.Whilst he was hiding at his friend’s house he made arrangements with a smuggler for his departure from Iraq. He stated that he departed Iraq [in] March 2012 using a fraudulent passport; that he flew to [Country 1] then on to [Country 2] where he stayed for some days. He added that [in] March 2012 he travelled to [Country 3] and then left for Australia [later in] March 2012. • Following his arrival in Australia he contacted his wife who told him that the Mahdi Army had been asking about him.
In his application Form 866C, Application for a Protection (Class XA) visa the visa holder provided the following information:
a.Q1. What is your full name? The visa holder declared: Family name [Surname 1], Given names [applicant’s given name]
b.Q4. What other names have you been known by? The visa holder answered ‘N/A’.
c.Q29. Details of your current travel document? The visa holder answered ‘N/A’.
d.Q42. I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries). Referring to his Statutory Declaration, the visa holder stated; ‘Please see statement included herewith’. On page one of his Statutory Declaration the visa holder stated: “I am afraid to return to Iraq”.
e.Q43. Why did you leave that country? The visa holder stated ‘Please see statement included herewith’. The visa holder stated at paragraphs four and five of the Statutory Declaration that because he and his family are Sunni Muslims and being a minority in his village, he was targeted by the Mahdi (Shia) Army.
f.Q44. Have you experienced harm in that country? The visa holder stated ‘Please see statement included herewith’. The visa holder described at paragraphs six, seven and eight of his Statutory Declaration that he was detained by Shia extremists for two months and tortured for five days before being released.
g.Q45. What do you fear may happen to you if you go back to that country? The visa holder stated ‘Please see statement included herewith’. On page two of his Statutory Declaration the visa holder stated: “If I were forced to return to Iraq, I would be targeted, harmed or killed”.
h.Q46. Who do you think may harm/mistreat you if you go back? The visa holder stated ‘Please see statement included herewith’. On page three of his Statutory Declaration the visa holder stated: “If I were forced to return to Iraq, I would be harmed/mistreated by Shia extremists, anti-occupation insurgents and the Mahdi Army”.
i.Q47. Why do you think this will happen to you if you go back? The visa holder stated: ‘Please see statement included herewith’. On page three of his Statutory Declaration the visa holder stated: “I fear that as a Sunni Muslim, I will be harmed or killed by Shia Muslim insurgents and extremists. They have harmed or killed the few remaining Sunni Muslims in my village and I fear I will be killed too”.
j.Q48. Do you think the authorities of that country can and will protect you if you go back? The visa holder stated ‘Please see statement included herewith’. On page three of his Statutory Declaration the visa holder stated: “I fear the authorities – they will not protect me. The national police force is largely infiltrated by Shia Muslims and the Mahdi Army has been involved in sectarian violence. I cannot seek their protection”.
k.Q50. When did you leave your home country? The visa holder answered that he departed Iraq [in] March 2012.
l.Q53. Did you have difficulties obtaining a travel document (passport) in your home country? The visa holder answered: “Passport obtained illegally through smuggler”.
m.Q56. Is your travel document valid for return to your home country? The visa holder answered: ‘No, it was taken by smuggler’.
n.At question 67 Declaration which the visa holder signed and dated 4 August 2012 he acknowledged that: “The information I have supplied or caused to be supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail. I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.”
On the basis of the information provided by the applicant in his refugee assessment and Form 866 application, the applicant was found to meet the criteria for a protection visa which was granted on 14 January 2013.
Subsequent to the grant of his Protection visa, Departmental records show that the visa holder has made several trips back to Iraq, spending significant periods of time there. The first trip was within five months of grant of the Protection visa and he remained in Iraq for 11 months. The following trips were made:
a.Departed Australia [in] June 2013 and returned [in] May 2014;
b.Departed Australia [in] March 2015 and returned [in] April 2015;
c.Departed Australia [in] February 2016 returning [in] May 2016.
In his incoming passenger cards for these travel dates the visa holder declared he spent most of his time abroad in Iraq. [In] April 2015, upon his return to Australia, the Border Entry officer at Sydney Kingsford Smith International (SKSI) Airport found the visa holder had in his possession an Iraqi [passport] issued to him in the name of [Name 2] (dob:[deleted]) [in] 2011 in Thi Qar, Iraq and which is valid to [2019].
The passport entry and exit stamps indicate the visa holder entered [City 1, Iraq] International Airport [in] March 2015 and departed [in] April 2015. These dates are consistent with Departmental records which indicate the visa holder departed Australia [in] March 2015 and returned [in] April 2015. The visa holder advised the Border Entry Officer that he had travelled to Iraq to spend time with his wife and children. The visa holder travelled out of Australia on his Australian issued ‘Titre de Voyage’ travel document to [Country 1] and entered and departed Iraq with his Iraqi passport.
In this document, there are also date stamps which indicate the visa holder departed [City 1, Iraq] International Airport [in] January 2012 and entered [Country 2] International Airport [in] January 2012. These dates suggest the visa holder departed Iraq as the holder of this passport on his initial travel to Australia and not as the holder of a false passport as declared in his Protection visa application.
On 12 September 2014 the visa holder made a request to the Department’s Freedom of Information (FOI) section to change his name from [Name 1] to [Name 2] in which he provided a copy of his Iraqi [passport] which was issued to him in Thi Qar Iraq [in] 2011. The visa holder stated in the form 424C (Request for amendment or annotation to personal records), at question 3, ‘Have you been known by any other names?’ that he is known by the name of [Name 2] in his country of citizenship (Iraq) and the reason for the change is that ‘[Surname 1]’ is a tribal name and does not exist in Iraqi records.
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s 101 in the following respects (detailed discussion of the issues and findings relating to the applicant’s responses follows):
a.With respect to Qn 4 he answered ‘N/A’ which asked what other name had he been known by. This answer is incorrect because the visa holder stated in his application that his name is [Name 1] however he claimed in his FOI request he has been known by another name; that is [Name 2]. In his request he provided a copy of his Iraqi [passport] issued to him [in] 2011, bearing his official identity of [Name 2]. Departmental records were amended on 10 October 2014 to reflect this name.
b.With respect to Qn 29 he answered ‘N/A’ to details of his current travel document. This is incorrect because the Iraqi [passport] the visa holder provided to the Department when he made an FOI request for a change of name was issued to him before his initial departure from Iraq to travel to Australia and his subsequent application for a Protection visa. A date stamp in that passport indicates the visa holder departed [City 1, Iraq] International Airport [in] January 2012. The visa holder was therefore in possession of a travel document at the time he lodged his Protection visa application.
c.With respect to Qn 42 he answered that he is afraid of returning to Iraq. This is incorrect because the visa holder voluntarily returned to Iraq on several occasions, the first time within five months of the grant of his Protection visa when he departed Australia [in] June 2013, remained there for 11 months and returned to Australia [in] May 2014. On his incoming passenger card the visa holder declared ‘Iraq’ in answer to the question regarding which country he had spent the most time abroad. Date stamps in his Iraqi passport show that he subsequently returned to Iraq [in] March 2015 and departed [in] April 2015. The visa holder’s itinerary was sighted by ABF officers at SKSI Airport when he again travelled to Iraq between [February] 2016 and [May] 2016.
d.With respect to Qns 45 and 46 he answered that he would be targeted or killed if he were to return to Iraq. His claim that he would be harmed or mistreated by Shia extremists, anti-occupation insurgents and the Mahdi Army is incorrect given he has returned there repeatedly including once only five months after Protection visa grant, remaining for a period of 11 months.
e.With respect to Qns 47 and 48 he answered that as a Sunni Muslim in a predominantly Shia area of Iraq he would be harmed or killed. The visa holder’s claim that he would be harmed or killed is incorrect because he voluntarily returned to Iraq five months after his Protection visa grant and he remained there for 11 months. He subsequently returned to Iraq on a further two occasions between [March] 2015 and [April] 2015 and [February] 2016 and [May] 2016.
f.With respect to Qn 50 he answered that he departed Iraq [in] March 2012. This is incorrect because a date stamp in the visa holder’s Iraqi [passport] indicates he departed Iraq from [City 1] International Airport [in] January 2012, the same day he claimed in his Statutory Declaration that an explosion [occurred] which led to Shia extremists searching for him.
g.With respect to Qns 53 and 56 he stated that a false passport was arranged for his travel to Australia and that it was taken by the smuggler before he entered Australia. These answers are incorrect because date stamps in the visa holder’s Iraqi [passport] which was issued to him [in] 2011 indicate the visa holder departed [City 1] (Iraq) [in] January 2012, entered [Country 2] International Airport [in] January 2012, and then travelled on to [Country 3], using this passport in each occasion.
Discussion at Hearing
The applicant was asked if he was able to attend the hearing and he claimed that he had [a medical condition]. It was put to him that he had provided no medical evidence that stated he was unfit to attend the hearing. He claimed that he had the reports but hadn’t brought them. The adviser then stated that the applicant may have been confused and clarified that the applicant did not have any medical evidence that he was unfit for the hearing.
The applicant was advised that because of this the application to postpone the hearing had been refused. The member noted that there were reports from a medical centre on 4 and 5 October 2018 but neither said that he was unfit to attend. He was advised that the Tribunal would take the reports into account but there was nothing that indicated he was not fit to attend the hearing.
He was asked why he had changed his name (there was a certificate in his file (provided by him) and he said he wanted to travel to Iraq because he and his children were threatened and he didn’t want to be recognised. He was asked why he changed it in August 2016 and he said there was no reason and his wife told him to change his name so nobody could recognise him. Asked what documents were now in his new name, he claimed that he had changed his name on a photocard and his Medicare card. He had not changed his name on any Iraqi documents.
The applicant claimed that, in relation to the statements he made, he left Iraq [in] January, a day after the explosion occurred in a pilgrimage amongst Shi’a visiting [sacred sites]. He was at home [and] the explosion was about [distance] km from his home. He had previously said that he had left on [a date in] March but actually left [in] January. He had been detained by the militias who held him upside down and beat him for two months and five days.

Asked why he said that he wanted protection because he didn’t wish to return to Iraq, he claimed that his children were threatened and had one child who was not well. Asked about his own circumstances, he claimed that he had to return to Iraq because his children were threatened and one was not well and he wanted to relocate them to a safer place. His wife was a woman and could not do it on her own.
He was again asked about his personal circumstances, and he claimed that he had been threatened by the parties and militias. He was told when he came to Australia he could bring his children as well. Threatening letters were being sent to his family. He was again told to stop talking about his family and asked who was going to threaten him and why. He claimed the militias were asking his family where the applicant had gone.
He claimed the militias called them Sunni and said they were responsible for the attacks and the explosions. The militias and the parties were doing this – the government had no control over them. Jaysh al-Mahdi, Jaysh al-Fadhila and many other but they were all targeting him. He was Sunni himself. He prayed at home in Iraq and in Australia he goes to Friday prayers at [a] [mosque]. Asked the name of the imam there, he claimed that he didn’t know the name of the imam there. He said his name was [deleted].
In Iraq the applicant had been [an occupation] originally but then [did another job] before he left Iraq. In Iraq he has parents in [Nassiriyyah]. His father was killed by the militia in February 2014 – he was at home in Nassiriyyah when he was killed. His mother moved to another place [after] this. All of his siblings were in Australia – they followed him after he first arrived. [Details of siblings deleted].
Asked why he would be targeted from amongst the 8 or 10 million Sunnis in Iraq, he claimed that all of them in Iraq or had left so only Shi’a were left. It was put to him that this was patently incorrect and was asked to answer the question as the Tribunal was trying to test his truthfulness. He claimed that just watching the TV showed one that all the Sunnis were being killed. His children were now [in] a remote farm and said they were Shi’a if they were asked. [Details of children deleted].
Asked why he had returned to Iraq on the dates he did and stayed for the periods that he did, he claimed that on the first occasion (for 11 months) he found his wife waiting for him at [City 1, Iraq] airport and he then moved his family from [Location 1] to near [Location 2]. He entered [City 1, Iraq] airport on his Australian-issued travel document. He was told to stand somewhere else which was where non-Iraqis stood.
It was put to him that he wasn’t Australian, he was Iraqi. He said that because he carried an Australian passport he was considered a non-Iraqi. It was put to him that it wasn’t a passport, and he agreed it was a travel document but the immigration officer couldn’t tell the difference. The document was in his name [Name 2]. This was his name as it hadn’t been changed. He was asked how he could enter the heavily Shi’a-controlled airport at [City 1, Iraq] with a document in his own name and nothing happened to him. He claimed that the police controlled the airport and they had nothing to do with the militia or parties and the police weren’t after him.
It was put to him that he had stated in his protection claim that the national police force was largely infiltrated by Shi’a Muslims and the Mahdi Army (JAM). The member said that he was confused as the applicant was saying that the airport was controlled by the police but they didn’t want him. Yet he also said the police were infiltrated by the Shi’a and JAM, and they were after him. This was inconsistent. He claimed that he didn’t say he was wanted by the police, but by the militias and JAM.
Asked how he could remain undetected for 11 months without being targeted by the Shi’a militia, he claimed that he didn’t stay where the Shi’a are and in [Location 2] and [Location 1] they were Sunni. He went straight to [Location 1] and stayed there for 11 months and after he left his wife went to Nassiriyyah. He stayed indoors and didn’t go anywhere for 11 months. Asked why it took 11 months just to move his family, he claimed that he needed to ensure they were safe.
On the second time (March 2015) he moved the family to an area near as-Samawa (Waqa) after there were problems where they were (from ISIS). The third time he moved them to a faraway farm [and] to tell people they were Shi’a. In the last (2016) trip he didn’t go anywhere else. He had to move his family as the mayor had said they couldn’t occupy their housing any more. Asked if he had been to [Country 4], he claimed that the last time he went back he went to [Country 4] to return to Australia. This was in May 2016. He entered Iraq via [City 1] and then had to leave via [Country 4] as they said he couldn’t fly via [Country 1] on his document. He went to [Country 4] via a bus – he only stayed there for a few hours. He had an Iraqi passport to travel to [Country 4] in his name [Name 2].
Since he had been away his wife had coped but was not in a good shape now. It had not been easy for them. His little son had [health issues]. His wife was too scared to take him to hospital. They were okay until now but nobody was feeling safe.
He was told about s 424AA and it was put to him that DIBP who had previously questioned him about his movements when he returned to Australia. In May 2014 he said he went to Iraq because his father was unwell and passed away. On Form 424 he had said that his wife was very sick and he needed to go overseas to see her. Today he had claimed that his father was shot and killed by the militia and yet had not been mentioned before. He had said the Tribunal his wife had been fine but he had previously said he had to return because his wife was sick.
In a medical report he had provided to the Tribunal he had told the medical officer in January 2018 that his parents had remained in Iraq. The Tribunal was concerned that he had told different people different stories about his father’s life status as well as the health of his wife. These called into question his credibility as a witness and could call into question the credibility of his entire claim.
He stated that when he travelled the first time and was questioned by DIBP he said he just told them his father was sick and passed away, without giving many details. He claimed his wife had [health conditions] ad that he had not lied. His son [had health issues] and he had to return for him.
Regarding his use of the name [Name 1] in his protection visa statutory declaration when he had said ‘N/A’ if was known by any other name, he claimed that he didn’t know about it as he didn’t read or write. His Iraqi passport was also in the name [of Name 2]. H claimed that in Australia he was asked to provide the name of his tribe which was [the last part of Name 1].
He had also given the answer ‘N/A’ when asked to give details of your current travel document and that he had obtained his Iraqi passport illegally through a smuggler and that it had been taken by a smuggler. He also said he had left Iraq [in] March 2012. An Iraqi passport was found in his possession at Sydney Airport issued [in] 2011 and that showed him departing [City 1, Iraq] [in] January 2012.
He said that he would like to apologise for lying about his passport. He was told by smugglers in [Country 3] and people on the boat that if his passport was seen he would be deported back to Iraq. He was reminded of the importance of truthfulness in the absence of documentary evidence and that if he was willing to lie on a statutory declaration it may be open to the Tribunal to find that he had lied about other things. He claimed he wouldn’t have lied if he knew what the consequences were.
It was also put to him that he had made all these claims about what would happen to him if he returned to Iraq yet he had returned for 476 days over three visits, which raised questions that he wasn’t or will be of interest to Shi’a militia groups, had been or would be targeted or tortured by them. This concern was reinforced by his willingness to enter through [City 1] Airport which was controlled by the police who he had said were controlled by the Shi’a militia.
He claimed he was targeted in Nassiriyyah and al-Amara. This was why he returned to [Location 1]. He had avoided the militias. He repeated the reasons why he returned to Iraq. He was asked if he was working in Australia and said that he was ill with [a medical condition]. He had not worked since being in Australia, but they all refused because of his [medical condition]. He was receiving Centrelink payments and funds from friends.
He was told about the letter from [a specialist] (from September 2015) given by the applicant to the Tribunal in which the doctor said the applicant had told him that the applicant hadn’t seen his children in five years. He said he had seen so many doctors and didn’t read or write.
He was also advised about the ITOA and advised that it believed Australia would not be in any breach of its international obligations if he was returned to Iraq. The applicant claimed that he would be dead within five day of returning to Iraq. He claimed that he couldn’t return to Iraq because the militia and parties were aware of him.
He left Iraq on his Australian travel document the first time and subsequent to this he used his Iraqi travel document to enter, but not depart. He had no problem with the police and is not wanted by the government, only the militias and the parties.
The applicant’s adviser claimed that two-thirds of the notice was invalid as it was not particularised. He began speaking about the nature of the names used and whether this constituted incorrect information as the applicant had not used the [last part of Name 1] in his application. The delegate had also claimed that the action of returning to Iraq on three occasions was not in and of itself evidence of non-compliance, and the reasons were not particularised. He had only mentioned a low risk of harm because he was Sunni and hence they equated low risk of harm doesn’t mean a low chance.
The adviser also said that because he was accused of being behind the 2012 bombing simply because he was Sunni. The applicant made the claim in general terms and the delegate accepted this claim. At the time of the decision made by the delegate the risks of being accused because of being Sunni should be seen in terms of 2012 when the decision was made. The member said he understood what the adviser was driving at, but if the applicant had admitted to lying on a statutory this carried a great deal of weight. Anything that then relied on someone’s oral testimony was questionable.
At the time he made the statutory declaration he admitted he lied on it, and there were other issues to do with his credibility revealed at hearing. The delegate may simply have been more accepting of his credibility than what the applicant deserved. The adviser said that the notice lacked specificity about the nature of the incident not being believed and whether it was incorrect. It was not correct to compare his travel subsequent to his 2012 claim and then to invalidate this claim as a result.
It was put to him that it may very well be that if the applicant admitted in 2018 to giving false information in 2012 then all the information he gave at the time could have been incorrect, and the delegate could have been incorrect because he accepted information that the applicant had subsequently said was fabricated. Potentially none of what the applicant had claimed was true. The adviser said that the departmental officer didn’t go into these details, and because he had given false information did not mean that he was not at risk on return.
There was then a discussion of the nature of the police force and the [City 1] police. It was put to him that the applicant said the national police controlled the [City 1] airport. The adviser was told that he would be given time to go over the testimony of the applicant and then address the concerns of the Tribunal.
Analysis
The applicant has proven himself to lack credibility as a witness through inconsistencies exaggerations and acknowledged lies. He accepted that he was untruthful regarding his possession of a legitimate Iraqi passport that was issued to him prior to him departing Iraq in 2012, as well as the date on which he left Iraq. I do not accept that he did this because he was told that he would be deported if he acknowledged that he had a passport.
He only accepted that he had a passport once it was found in his possession during a check at the airport on return from a trip to Iraq. He was happy to have the lie continue until it was found out, and to accept the benefits that accrued through his falsehood, and his claim to have been advised to lie is neither a valid reason for lying, nor do I accept it as truthful given his lack of credibility.
I also do not accept that his father was shot dead by militia in 2014. He variously told the DIBP authorities that he went to Iraq because his father was ill and then died, the AAT that his father was shot and killed by Shi’a militia, and medical staff in January 2018 that his parents remain in Iraq (folio 35). I do not accept that the inconsistency was because of a misunderstanding on the part of the DIBP authorities at the airport. It does not explain why he told medical authorities that his parents were alive.
I also do not accept that there were only Shi’a left in Iraq as all the Sunnis had been killed or had left. Although he claimed that one could see this just by watching the television. While I accept that this is simply embellishment on a grand scale, it is further indication of the lack of credibility of the applicant.
I do not accept that the applicant was accused (simply by being Sunni) of involvement in a Ba’tha checkpoint bombing that killed [Shi’a] pilgrims [in] January 2012, that he was forced to hide in a friend’s house and arranged a smuggler to get him a passport and that he was able to leave Iraq on a false passport [in] March. The applicant has already admitted to having a legitimate passport that was issued [in] 2011 and that a stamp in it indicated that he left [City 1] [in] January 2012.
I do not accept that the applicant was ever detained and tortured by Shi’a militia who threatened to kill him if he didn’t convert. Or that he had received threats since or that JAM had been asking about him after he had left. This all relies on his oral evidence which I have found lacks credibility.
The lack of interest in him in Iraq is reinforced by the fact that he has travelled to Iraq on three occasions for over a year in total; on one occasion for 11 months. Every time he used [City 1] airport as his point of entry to the country. Given the degree of interest he claimed that JAM and other Shi’a militias, it lacks credibility that he would be able to enter (and twice depart) from [City 1] without any trouble. In his protection visa application he claimed that the national police is largely infiltrated by the Shi’a militia and during the hearing he claimed that the police controlled the airport at [City 1]. It therefore follows that, if he were of interest to the Shi’a militias he would have been picked up at [City 1] airport, particularly as on several occasions he used his old Iraqi passport that he was issued prior to leaving Iraq.
Rather, I am satisfied that the applicant was able to travel to Iraq on three occasions because he was not, nor had he ever been of interest to Shi’a militias. I have taken into account the submission provided by the applicant’s adviser and the medical documentation also provided but lend them little weight. They do not give any medical explanation for the inconsistencies, nor account for them in a convincing, non-medical way.
Conclusion on non-compliance
I am satisfied that the applicant fabricated his claims regarding his being detained, tortured, targeted or threatened by Shi’a militias. As a consequence I am satisfied that he was not of any interest to any Shi’a militia group at the time he left Iraq and when he made the claim for protection. The fact that he has returned to Iraq on three occasions for an extended period of time and faced no difficulties indicates that he is of no interest to militia groups since he left Iraq. Given that I have found that the applicant’s claims regarding adverse interest being shown in him prior to seeking protection in Australia to have been fabricated.
I am also satisfied that he lied about the existence of a valid and current Iraqi passport that he had issued to him [in] 2011 before he left Iraq to come to Australia and that he retained even after he arrived in Australia, as well as the date on which he actually departed Iraq. I am also satisfied that he was known by names other than [Name 1].
For these reasons, the Tribunal 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?
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. Briefly, they are:
· the correct information
The correct information is that at the time of lodging the application for a protection visa, the applicant was not, and continues not to be wanted by any Shi’a militia group in Iraq. He was also known by the name of [Name 2], was issued and retained a legitimate Iraqi passport by Iraqi authorities [in] 2011 (it was not obtained fraudulently nor was it taken off him by a smuggler) and left Iraq [in] January 2012 and not [March] 2012 as he claimed.
The Tribunal gives significant weight to the fact the applicant has provided incorrect information when he applied for a protection visa.
· 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 Tribunal is satisfied that the decision to grant the applicant a protection visa was based on findings that there was a real chance that th applicant would suffer serious harm because he was wanted by Shi’a militia groups.
For the stated reasons, the Tribunal has found that the applicant is not, and never has been wanted by Shi’a militia groups and is able to travel to and reside in Iraq without there being a real chance of suffering serious harm. The Tribunal therefore finds that the decision to grant the applicant a protection visa was wholly or partly based on the correct information that the applicant provided in the application for a protection visa.
· the circumstances in which the non-compliance occurred
The Tribunal considers, and in the case of the passport-related questions he has admitted, that the applicant has knowingly provided incorrect information with respect to his fear of returning to Iraq to the Department as part of his protection visa application for the purpose of gaining a visa. He continued to provide incorrect information when he responded to the Notice of Intention to Consider Cancellation and continued to assert that he feared serious harm from Shi’a militias if he returned to Iraq.
· the present circumstances of the visa holder

The applicant’s wife and children all live in Iraq and his decision to travel back to Iraq on three occasions to visit his family indicates that he remains close to them. He is not working and is on Centrelink benefits. He claims that he has [a medical condition] and there is a medical history of some mental health issues (adjustment disorder with depressed mood) but the diagnosis also indicates that the most prominent factor is his separation from his family (folio 38) which would be alleviated if he returned to Iraq.
Given he has not worked since coming to Australia and that his roots here are not deep, he would be able to reunite with his family and integration back into Iraqi society would not be difficult, particularly as he has returned there on three occasions since arriving in Australia. There is nothing to indicate that his [medical condition] could not be treated satisfactorily in Iraq. On the face of it, given he has not contributed significantly to the Australian community, few people nor any Australian organisations will be disrupted as a consequence of his departure.
· 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 applicant has only conceded that incorrect information was provided by him in his protection visa application with respect to his passport. This was only done when the passport was actually discovered. He maintains that he is wanted by Shi’a militias in Iraq.
· any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal in relation to any other instances of non-compliance known to the Minister. The Tribunal gives this consideration some weight.
· the time that has elapsed since the non-compliance
The original non-compliance dates from August 2012. The Tribunal does not consider this period to be of such significance to mean that the visa should not be cancelled.
· any breaches of the law since the non-compliance and the seriousness of those breaches
80. There is no evidence before the Tribunal in relation to any breaches of the law or any other instances of non-compliance. The Tribunal gives this consideration some weight.
· any contribution made by the holder to the community.
The applicant has not worked since arriving in Australia, allegedly because he would not be hired because of his [medical condition]. He has been drawing Centrelink benefits. His contribution to the broader Australian community has been minor, and is not of such significance that the visa should not be cancelled.
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.
Australia’s International Obligations
The Tribunal has not accepted that the applicant is wanted by Shi’a militias in Iraq or that there is a real chance that he would face serious harm on return to Iraq. A detailed ITOA was completed, the applicant having been given the opportunity to submit information to inform the ITOA, and the assessment determined that there was not a real chance that the applicant would be persecuted for reason of his religion if removed from Australia to Iraq. He made no comment when the findings of the ITOA were put to him during the hearing other than to say that he would be dead within five days and that the militia and parties were aware of him.
I note that the applicant has returned from Australia on three occasions to Iraq for a total of 14.5 months in-country. The applicant was willing to visit the country to see family members, had no difficulty entering or leaving the country and experienced no problems while he was there. I do not accept that this was because he moved his family on a number of occasions and kept a very low profile.
The ITOA was completed in February 2018 and found that non-refoulement obligations were not engaged in the applicant’s case. The findings of the ITOA therefore remain current.
The Tribunal considers that the applicant’s willingness to return to Iraq demonstrated that he does not have any subjective fear of harm about returning to Iraq.
CONCLUDING PARAGRAPHS
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.
Rodger Shanahan
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.
102Passenger cards to be correct
A non‑citizen must fill in his or her passenger card in such a way that:
(a)all questions on it are answered; and
(b)           no incorrect answers are given.
104Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4)Subsection (1) applies despite the grant of any visa.
105Particulars of incorrect answers to be given
(1)If a non‑citizen becomes aware that:
(a)      an answer given or provided in his or her application form; or
(b)     an answer given in his or her passenger card; or
(c)      information given by him or her under section 104 about the form or card; or
(d)     a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2)Subsection (1) applies despite the grant of any visa.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)      giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)      visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2018] AATA 5393

21 November 2018

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