1814689 (Refugee)

[2019] AATA 5844

1814689 (Refugee) [2019] AATA 5844 (5 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814689

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Roslyn Smidt

DATE:5 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 June 2019 at 11:38am

CATCHWORDS

REFUGEE – cancellation – protection visa – Iraq – voluntary return to Iraq – claimed fear of harm from Shi’a militia groups – inconsistent evidence – basis of visa grant – knowingly and deliberately provided incorrect information – not of adverse interest to anyone – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 46, 46A, 48A, 101, 107, 108, 109
Migration Regulations 1994 (Cth), r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 6 December 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.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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.

7. 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? 

8. The applicant was issued with a notice of Intention to consider cancellation of his visa under s.109 on 13 November 2017. 

9. Having regard to the terms of the notice and the information referred to in the notice, I am 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. I am also satisfied that the nature of the non-compliance was sufficiently particularised for the applicant to respond to it.

10. In a submission dated 27 November 2018 the applicant’s representative submitted that there were issues with the s.107 notice as it failed to take account of the fact that the situation may have changed since he departed Iraq in October 2010 (sic) and the fact that he returned to Iraq approximately two years and one week after the grant of his protection visa does not establish that he did not have an adverse profile.  In fact the applicant departed Iraq in November 2011, was granted protection on 16 July 2012 and returned to Iraq three months later.  In any event, even if I were to find that the Department’s finding that the applicant had provided false information was incorrect, this would not invalidate the s 107 Notice itself given I am satisfied that the concerns set out in the Notice itself were sufficiently particularised.

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

11. 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.

    Section 107 Notice – Notice of Intention to Consider Cancellation of visa (NOITCC)

12. The applicant arrived in Australia [in] November 2011 unauthorised maritime arrival. On 19 February 2012, he lodged a Form 866C Application for a Protection (Class XA) visa with the assistance of his migration agent. As part of this application he filed a completed Form 866 together with a statement setting out his claims for protection.

13. On 13 November 2017 the applicant was issued with an NOITCC. The information contained in the NOITCC is set out in the delegate’s decision. A copy of that decision was provided to the Tribunal. The NOITCC notes that information on passenger cards completed by the applicant in October 2012 and August 2014 indicated that he returned to Iraq three months after being granted a protection visa and remained there for some 22 months. In addition, passenger cards which the applicant completed in March 2015 and September 2015 together with information provided during an interview with a Department officer and his travel itinerary he provided indicate that he spent a further six months in Iraq in 2015 and that he arrived and left from Basra.

14. The non-compliance identified and particularised in the NOITCC was non-compliance with s.101(b) of the Act  in the following respects:

    ·     Question 43 in which he stated that he left Iraq because militia groups were targeting Sunnis including his family; that his family home was invaded and his father interrogated on a number occasions leading his death following [a medical condition]; that he took over his father’s shop and later being selling [Western goods] which resulted in the militias regarding him as an infidel and issuing a fatwa against him; that his shop was destroyed and his goods confiscated; that his brother was kidnapped and assaulted and that he went into hiding because he was afraid to return to Basra and eventually fled Iraq.

    The delegate observed that this information appeared to be incorrect because he had voluntarily returned to Iraq in October 2012 and remained there for approximately 22 months. The delegate also observed that his return to Iraq for a second time in March 2015 suggested that he had not experienced problems during his first visit. The delegate observed that if the applicant had left Iraq because he genuinely feared he would be killed by militia groups he would not have voluntarily returned to Iraq, including Basra, for such lengthy periods of time.

    ·     Question 44 in which stated that he had experienced harm in Iraq including his home being invaded and his father interrogated leading to his death; that his shop was bulldozed, his goods confiscated and his brother detained and tortured by militias in October 2010 and that a fatwa was issued against him.   

    The delegate observed that this information appeared to be incorrect because she considered the applicant would not have willingly to returned to Iraq spent extended periods there, including time in Basra, if he had truly suffered this harm prior to his departure in 2011.

    ·     Question 45 in which stated that he would be killed by militia groups if he returned to Iraq.

    The delegate observed that this information appeared to be incorrect because the applicant’s return and extended stay in Iraq and Basra indicated that he had not genuinely feared that he would be killed if he returned to Iraq when he lodged his protection visa application.

    ·     Question 46 in which he stated that militia groups would harm him if he returned to Iraq.

    The delegate observed that his return and extended stay in Iraq and in particular his return to Basra in March 2015 indicated that he had not genuinely feared that he would be harmed by militias if he returned to Iraq when he lodged his protection visa application.

    ·     Question 47 in which he stated that he would be harmed militia groups if he returned to Iraq because he was a Sunni Muslim and perceived to be an infidel because he owned a shop which sold [Western goods] and there was no safe place for him or his family in Iraq.

    The delegate observed that his return and extended stay in Iraq and in particular his return to Basra where he would have been easily identified by these militia groups if a fatwa had been issued against him indicated that at the time he completed his application for protection he was not at risk of harm by militias in Iraq because he was a Sunni Muslim and perceived to be an infidel.

    ·     Question 48 in which he stated that he the Iraqi authorities could not and would not protect him as they were infiltrated and overpowered by militia groups.

    The delegate observed that this information appeared to be incorrect because the applicant’s voluntary return to Iraq and his stay of approximately 27 months after being granted a protection visa indicates that he was not genuinely at risk of harm in Iraq at the time of his application and he did not require the protection of the Iraqi authorities.

15. In the NOITCC the delegate advised the applicant that the response he provides to the information provided and observations made and put to him in the NOITCC may be used to re-assess Australia’s non-refoulement obligations in relation to him. He was advised that his response to the following additional information would also be considered.

    ·     His return and extended stay in Iraq on two occasions after he was granted protection which appeared to suggest that he had misrepresented his situation in his application for protection and was not at risk of being harmed because of his Sunni religion or because of a fatwa issued by a Shia militia.

    ·     Information from the UK Home Office[1] which advised that in general Sunnis do not face a real risk of persecution or serious harm in southern governorates and advice from Department of Foreign Affairs which notes that many Shia militias now have a close relationship with the Iraqi military. 

    ·     Advice from  DFAT [2] which notes that many Iraqis return to Iraq after obtaining protection in Australia and limited evidence to suggest that returnee have difficulty assimilating back into their communities .. In response, he maintained that all of the information in his application was true and he continued to fear returning permanently to Iraq.

    [1] Country policy and information note – Iraq: Sunni (Arab) Muslims UK Home Office 28 June 2017

    [2] CISEDB50AD4631: DFAT Country Report Iraq 26 June 2017 OGG7028831

16. The applicant was advised that he could comment on the possible non-compliance and also give a written response as to why his visa should not be cancelled. He was advised that his response should provide reasons as to why he thought he had complied, or why he had not complied, with s.101(b) of the Act, why his visa should not be cancelled and provide any supporting evidence. He was advised of the timeframe within which he was required to respond in writing. He was advised of the two-step process when deciding whether to cancel his Protection visa and that his written response would be taken into consideration. He was advised of the matters that would be taken into account when considering whether his Protection visa should be cancelled, including r.2.41 of the Migration Regulations, and was advised to address these matters and any other matter he thought relevant in his response.

17. The NOITCC also informed the applicant that his obligations under ss.104 or 105 of the Act continue. He was also informed of the provisions of ss.108, 109, 111 and 112 of the Act.

    The applicant’s response to the NOITCC

18. The applicant responded to the NOITCC on 8 January 2018. He maintained that the claims in his protection visa application were all true. He said that after arriving in Australia he remained in contact with his wife.  She was always upset and appeared to be suffering from mental health issues. He contacted friends who told him that she in a very poor state, was barely capable of taking care of their children and had threatened suicide. During their conversations his wife began to say that she did not deserve to live and she wanted to kill herself.

19. The applicant made inquiries about returning to Iraq. His friends told him that it was not safe to return to Basra as people were still inquiring about his whereabouts. They advised him not to reveal that he was an Iraqi or tell anyone about his plans. He obtained an Australian travel document which he used to enter Iraq in April 2012.  He flew directly to Basra and took a taxi to [a location] on the outskirts of his village where he telephoned a friend and arranged for him to bring his wife and children to the [location]. He then told his wife to go home, pack some clothes and return to the [location] as soon as possible, which she did. He arranged for the driver to take him and his family to Erbil. The journey took about [number of] hours. At the checkpoint on the border near Erbil he showed his Australian travel document and was permitted to enter. He had one friend in Erbil. He initially stayed with this friend and with his help later rented a house.

20. The applicant said that he had initially intended to remain in Iraq for about six weeks. However, when he told his wife that it was time for him to return to Australia she broke down and he felt he could not leave. He arranged for a friend to sell property he owned in Basra and he used that money to support his family in Erbil.  While he was in Erbil his wife fell pregnant and he again delayed his departure. His wife was experiencing difficulties and decided to return to her Basra for the birth of their child. The applicant could not stay with her in Basra, so he arranged for her to stay with other family members. They travelled to Basra together and the applicant travelled from there to Australia.

21. In December 2014 the applicant’s [child] died. He was extremely upset and began to consider returning to Iraq. He then heard that his wife had had a break-down and was suicidal. He contacted the Department of Immigration and to confirm that his visa was valid for travel to Iraq and was told he could travel to any country he wished.  He returned to Iraq [in] March 2015. A friend to pick him up at Basra Airport. He met his wife and children at a friend’s house and they travelled to Baghdad where they stayed for a few weeks before travelling on to Erbil.  He returned to Australia [in] September 2015.

22. The applicant said that he had commenced [employment] in Australia in 2017 and he was planning to save money to bring his family to Australia. He said that he remained at risk of serious harm in Iraq and he had no intention of returning to Iraq again.

    International Treaties Obligations Assessment (ITOA)

23. Following the applicant’s response the Department conducted an ITOA to determine whether Australia had any obligations to the applicant under the Refugees Convention, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).

24. The delegate responsible for this assessment noted that the applicant had failed to provide any evidence in support of his claim that his wife was suffering from serious emotional/mental health issues, but nevertheless accepted that he had returned to Iraq to care for his wife and family. However, she gave more weight to the fact that he had returned to Iraq three months after he was granted protection and spent a total of about twenty seven months there following the cancellation of his visa. She did not accept that he resided in Erbil for most of his time in Iraq and found it more likely that he had resided with his family in Basra.  With regard to his Sunni religion, she acknowledged DFAT advice that conditions for Sunnis had deteriorated in areas in which they were not in the majority, but also noted the UK Home Office advice that Sunni identity alone was not sufficient to give rise to a real risk of serious harm and concluded that the applicant did not face a real chance of suffering serious harm on return to Iraq merely because he is a Sunni.

25. On the evidence before her, the delegate was not satisfied that the applicant has an adverse profile in Iraq for any reason under the Refugees Convention. Having considered his claims individually and cumulatively and his voluntary return to Iraq, she was not satisfied that Australia has any non-refoulement obligations in his case.

26. The delegate also found that the applicant is not a person in respect of whom Australia has a non-refoulement obligation under the CAT and the ICCPR.

    Submissions to the Tribunal

27. On 27 November 2018 the applicant provided a submission prepared by a new representative.  It submits that there are issues with the s.107 notice as it fails to take account of the fact that the situation may have changed since he departed Iraq in October 2010 and the fact that he returned to Iraq approximately two years and one week after the grant of his protection visa does not establish that he did not have an adverse profile. It also submits that there were compelling and compassionate reasons for his return to Iraq as on his first visit he was concerned for the safety of his family and was looking for ways for them to leave Iraq as soon as possible and on the second occasion he returned to support his wife following the death of their [child]. The submission states that when he returned to Iraq in 2012 he went to Basra where his wife and children were waiting and they flew to Erbil and adds that he resided in Erbil with his wife during both of his visits to Iraq as he did not feel safe in Basra or elsewhere in Iraq.

    Discussion at Hearing and post hearing submission

28. At the hearing the applicant provided a copy of what purport to be itineraries for travel from Basra to Erbil [with an airline in] October 2012 for himself and his family and what appears to be a travel itinerary for himself from Basra to Erbil [in] March 2015, although the name on this itinerary is given as [Alias 1].

29. I noted that the applicant’s visa had been cancelled because in the delegate found that his return to Iraq in 2012 shortly after being granted protection and his prolonged stay in the country indicated that he had not provided a truthful account of the harm he feared in Iraq. He said that he had provided a true account of his problems.

30. I asked the applicant what travel documents he had used to return to Iraq.  He said that he had disposed of his Iraqi passport while travelling to Australia and had not obtained a new passport because he was afraid. I observed that he did not appear to have had any problems with the Iraqi government prior to leaving and I therefore had some difficulty understanding why he was afraid to approach the Iraqi authorities in Australia. He said that he did not want an Iraqi passport. I also advised him that I found it unlikely that he would have used an Australian travel document to enter Iraq as he was still an Iraqi citizen and the Iraqi authorities would have been aware of this. He said that he had travelled to Iraq using travel documents issued in Australia and inside Iraq he used his Iraqi citizenship documents and he did not have problems with anyone using these documents.

31. I asked the applicant to tell me about his first trip back to Iraq. He said that he had wanted to make sure his family was a safe place. He wanted to arrange for them to travel to Turkey and then Europe, but he did not find reliable person to help. I asked if there was any other reason he returned to Iraq in 2012.  He said that he wanted to find a secure place for his family because they were struggling.  I asked him if there was any particular reason he returned to Iraq in 2012. He said that his family was struggling and he was about to lose them. When asked to clarify he said that the militias came to his house every day and terrified his wife and children.  I noted that the applicant had previously stated that he returned to Iraq in 2012 because his wife was suffering from physical and psychological health problem and asked if his wife had been suffering from these problems. He said that his wife was suffering because the militias used to come. I asked if his wife was suffering from any medical issues.  He said that the militias use to beat his wife to find out where he was and her health was deteriorating and she asked him not to leave her in Iraq.

1. I noted that in response the Department’s notification of the intention to cancel his visa the applicant stated that prior to travelling to Iraq in 2012 he had asked his friends about the situation in Basra and they told him that people were still looking for him and advised him not to return. He said that this was correct. I also noted that according to his evidence, his wife had experienced problems with militias after he left.  I asked him why, if this was the case, he had travelled directly to Basra, rather to Baghdad or directly to Erbil.  He said that he did not go to Baghdad because people returning to Baghdad Airport were interrogated and asked why they had left Iraq. He said that many of his friends had experienced this problem. I advised him that it was my understanding that many Iraqi travelled in and out of Iraq by Baghdad and I was not aware of any evidence which suggested that people who had did not have existing problems with the government and who left Iraq legally were likely to be questioned on arrival in Baghdad Airport.  He said that many people had told him that they were interrogated at Baghdad Airport.

2. I asked the applicant why he would not have experienced similar problems at Basra Airport. He said that he had just wanted to find a secure place. He added that Iraq was ruled by militias and parties and his identity card showed that he was a Sunni, so he was not safe.

3. I asked the applicant why he had not travelled directly to Erbil if he was at risk of harm in Basra.  He said that his wife and children were waiting for him at the airport and they flew directly to Erbil. I noted that this was different from his earlier evidence in which he stated that his wife had not been aware he was coming, that he went to [a location] near his home town and a friend brought his wife to the [location] after which they drove to Erbil. I noted that this was very different from his current account. The applicant’s response was confused. He said that the accounts were the same as a driver brought his wife to airport and they drove from there.

4. I asked the applicant what happened when he arrived in Erbil Airport. He said that it was a domestic airport and he did not face any problems.  I advised him that it was my understanding the situation was different in Erbil than at other domestic airports.[3] He acknowledged that Kurdish officials were concerned about Arabs entering Erbil, but he showed his Iraq citizenship documents and a hotel booking and had no problems.

   [3] As pointed out in the delegate’s decision DFAT advised in 2017 the admission to the Kurdish region remains at the discretion of the Kurdish Regional Government and those entering or returning to the region require sponsorship and must register with local authorities.

5. I advised the applicant that it was my understanding that in order to reside in Erbil an Iraqi from elsewhere in country required some form of sponsorship and registration. The applicant said that his wife had her identity documents and she showed these when asked and explained that she was refugee from elsewhere. I advised him that it was my understanding that people who fled to Erbil as refugees could obtain registration which allowed their children to attend school and asked why his wife had not sought this. He said that the Kurds did not want any Arabs in Kurdistan. When asked he said that he had no documents which confirmed that his wife and children resided in Erbil.

6. I observed that the applicant said previously stated he had intended to stay in Iraq for only about 6 weeks in 2012, but he had remained there for twenty two months. The applicant said that his family did not want him to leave and he was trying to sell some property to arrange for his family to go to Europe.

7. I advised the applicant that while I accepted that he might have remained in Erbil with his family for an extended period in 2012 I was concerned that he had not provided honest evidence regarding his whereabouts while in Iraq. I noted that he had given differing accounts of his arrival in Basra and his travel to Erbil. I also noted that he had stated in his submissions to the Department that he initially stayed with a friend in Erbil because he was unable to find other accommodation in the time available, but had told me he had hotel reservations. The applicant said that he had not given inconsistent accounts. He said it was much easier to enter Erbil if you have a hotel reservation and he arranged a reservation through a travel agent.

8. I noted that the itineraries which the applicant had provided regarding this travel from Basra to Erbil could have been produced by anyone with a computer and I advised him that I was concerned that this might have occurred. He said that he had sworn to tell the truth and he had given an honest account of this time in Iraq in 2012 and 2013.

9. I asked that applicant why he had flown into Basra in 2015 if his family had remained in Erbil after he left in 2013. He said that based on his previous experiences he knew that this was a safe and easy route as nobody had interrogated him.  He said that he flew into Basra and then went directly to Erbil.  I observed that he had previously stated that he had spent time in Basra before travelling to Erbil in 2015. I noted that he had said that a friend had picked him up from the airport and stay with his elderly mother and that a few days later he travelled to Baghdad then on to Erbil with his family, which suggested that his family was in Basra when he arrived in 2015. His response was somewhat confused. I asked where his wife was living when he arrived in 2015. He said that his wife was in Erbil. I asked him to clarify the statement in his earlier submissions that he had arranged for his wife and family to travel to Erbil a few days after he arrived in 2015.  His response was confused and failed to explain the apparent inconsistency in his evidence. I advised him that it appeared that he had not given an honest account of his own or his family’s whereabouts in 2015. He maintained that his wife and family had been in Erbil when he arrived in Iraq in 2015.

10. Following a short break the applicant’s representative submitted that the inconsistencies in the applicant’s evidence might have arisen because while his former representative was of Lebanese background, did not speak Arabic very well and used the Lebanese dialect.  He said that the applicant had told his former representative that he had been planning to drive to Erbil when he returned to Iraq in 2012, but after receiving advice about the problems on the road he decided to fly. He suggested that this might have resulted in the applicant’s first representative misunderstanding him.

11. When asked, the applicant confirmed that he believed his first representative might have misunderstood him and incorrectly recorded his claims. I advised the applicant it was my understanding that while there were a number of different Arabic dialects there was also a common formal language and people from different regions could generally communicate. I also advised him that I found it unlikely he would have sought assistance from a representative who could not properly understand him. He maintained that his claims were true.

12. I advised that applicant that in the event that I decided that his visa should be cancelled I would need to consider whether he was currently owed protection in Australia. I advised him that I was aware that militias continued to have a presence in Basra and there had been some conflict in the area in recent times, but it was not my understanding that Sunnis in Basra or elsewhere in Iraq were generally at risk of harm because of their religion. He maintained that he would be at risk of harm anywhere in Iraq because the fatwa against him remains in force and because of his religion. I agreed to give him the opportunity to provide additional evidence in support of these claims.

13. On 30 May 2019 the applicant’s adviser provided a submission which referred to information in a European Asylum Support Office report dated March 2019 which he claimed reported that Iraq Body Count data on the security situation in Iraq stated that the highest intensity of violence against civilians was recorded in Basra and other southern governorates. In fact the report states that IBC showed that the lowest intensity rates for civilian deaths in Iraq (civilians killed per 100/k) are in the south, with the highest level of violence within the south occurring in Basra, Thi-Qar, Missan and Babil. It states that there were 88 security-related incidents leading to 127 civilian deaths in Basra.  It states that the violence was caused by a number of factors including criminality, drug abuse, violence between tribes and militias. It also reports on anti-government protests. It does not suggest that Sunnis are generally at risk of harm because of their religion,

    Findings in relation to the applicant’s travel to Iraq in 2012 and 2015

14. As set out below, there are significant inconsistencies in the applicant’s accounts of his movements following his arrival in Basra in October 2012 and 2015 and his family’s place of residence between 2013 and 2015.

15. In his submissions to the Department he said that his wife did not know he was coming when he returned to Iraq in October 2012. He claimed that he arranged for a friend to bring her to [a location] where he arranged for her to collect her belongings after which they travelled by car to Erbil with their Children. In written submissions provided to the Tribunal in November 2018 and during the hearing he said that his wife and children met him at the airport in Basra in and they flew from there to Erbil.

16. When asked to explain this inconsistency in his evidence, the applicant was unable to provide a coherent or plausible explanation. His representative’s later suggested that this inconsistency could have been caused by his former representative’s limited ability to speak Arabic. I do not accept this explanation. When first asked to explain the apparent inconsistency in his evidence, the applicant made no mention of problems with his former representative. Furthermore, I find it unlikely that the applicant would have bothered to tell his former adviser that he had originally planned to drive to Erbil if he changed his mind and flew out of Basra without leaving the airport and extremely unlikely that he would have engaged a representative who had such difficulty understanding him that he was unable to accurately record his claims. Finally, the submission provided by the applicant’s former representative does not merely state that he drove to Erbil in October 2012, it gives a detailed description of his movements between arriving in Basra and leaving for Erbil.

17. In his submissions to the Department the applicant said that his wife had returned to Basra in August 2014 when he travelled back to Australia. He also said that when he returned to Iraq in March 2015 he met his family in Basra and they travelled to Baghdad where they stayed for a few weeks before travelling on to Erbil. At the hearing he said that his family had never returned to Basra and were residing in Erbil when he returned in March 2015. Beyond insisting that his evidence at the hearing was true, he provided no explanation for this inconsistency.

18. In light of these significant inconsistencies and the applicant’s failure to provide a credible explanation for them, I am not satisfied that he has provided a truthful account of his whereabouts during his visits in Iraq in 2012/2014 or 2015.  I do not accept that he travelled to Erbil with his family in 2012 or 2015 or that he spent most of his time in Iraq living in Erbil. I believe he returned to Basra and resided there with his family for most if not all of his stay in Iraq. This finding is supported by the fact that he travelled directly to Basra in 2012 and 2015. As discussed below, he could have travelled to Baghdad or even Erbil if he had no intention of remaining in Basra and I found his explanations for travelling directly to Basra lacking in credibility.

19. The applicant claims that he flew to Basra rather than Baghdad Airport because he feared he would be questioned by authorities in Baghdad about his reasons for leaving the country. This does not sit well with his evidence that he resided in Baghdad for about a year before leaving Iraq without experiencing any problems with the authorities and left through Baghdad Airport using his own passport without experiencing any problems. Apart from claiming that some of his friends were questioned he has provided no evidence to support the claim that ordinary Sunnis or other Iraqis who left Iraq legally are routinely questioned at Baghdad airport when returning from abroad and I am unaware of any evidence which suggests that this is the case. According to DFAT it is common practice for Iraqis who are granted protection return to Iraq after securing residency in Australia and while some returnees may face difficulties after they enter Iraq, particularly if they do not return to their place of origin, there is no suggestion that ordinary Iraqis would be of adverse interest to the authorities at the airport or anywhere else merely because they had been absent from the country. I do not accept that the applicant avoided Baghdad Airport because he was afraid of being questioned. I believe that he made up this claim to explain his decision to fly directly to Basra where he claimed to be at risk of harm from Shia militias.  Furthermore, even if I accepted that the applicant was fearful of entering Iraq though Baghdad Airport (which I do not), this does not explain why he flew to Basra in 2015 when he claims that his wife and children were already residing in Erbil.

20. After considering all of the evidence, I do not accept that the applicant has provided a truthful account of his whereabouts during this travel to Iraq in 2012 or 2015. I find that he returned to Basra and remained there for most if not all of his time in Iraq.

21. I acknowledge that some Sunnis in Basra experienced harassment and sometimes serious harm during the period that Shia militias essentially controlled the city between 2006 and 2008. I accept that the applicant and his family may have experienced some harassment during that period and that the applicant may have been somewhat apprehensive about his future as a Sunni in Basra at the time he left Iraq as a result of this. However, after considering all of the evidence, I do not accept that a Shia militia issued a fatwa against him in 2010 resulting in the destruction of his home and business and abduction and torture of his brother or that he fled Basra and later Iraq to avoid being killed or harmed by Shia militias. I am satisfied that he was able to travel to Iraq and reside in Basra for extended periods in 2012 and 2015 because he was not and had never been the subject of a fatwa issued by a Shia militia for any reason or that he was of interest to any Shia militias in Basra for any reason at the time of his departure. Nor do I accept that he genuinely feared that he would be persecuted on return to Iraq because of his Sunni religion at that time he applied for protection in February 2012.

22. In reaching this conclusion I have considered the applicant’s submission that he returned to Iraq in 2012 despite the fact that he was at risk of harm because of the dire situation of his wife. I accept that the applicant's returned to Iraq to be reunited with his family.  However, I do not accept that he has provided a truthful account of his wife’s circumstances. I do not accept that his decision to return to Iraq in 2012 despite allegedly the facing serious risks was the result of his wife suffering from serious mental health issues as claimed in his response to the NOITCC. When asked about his reasons for returning to Iraq in 2012 at the hearing his response was vague and unconvincing. Even when specifically asked about his wife’s mental health he said that his family was struggling, but indicated that this was because militias came to his house looking for him and sometimes beat them. As I do not accept that the applicant was of particular interest Shia militias in Basra at any time, it follows that I do not accept that militias members came to his house looking for him after he left Iraq and terrorised his family. I do not accept that the applicant returned to Iraq in 2012 despite fearing that he would face serious harm because his concern for his family outweighed his fear of harm.

23. I have also considered that applicant’s evidence that he returned to Iraq in 2015 because his [child died] and his wife needed his support. I accept that this may be true. However, but that time the applicant had already spent 22 months in Iraq and without facing any problems and there is no credible evidence before me which suggests that he feared harm in Iraq at that time and I do not accept that he returned to Iraq in 2015 despite fearing that he would face serious harm because his concern for his wife outweighed his fear of harm.

24. Finally, I have noted that submission by the applicant’s representative that the situation had changed in Iraq since the applicant’s departure. This is at odds with the applicant’s claim that he continued to be at risk of serious harm when he returned to Iraq in 2012 and 2015 and is still at risk of harm today. Furthermore, no evidence has been provided which suggests that the situation in Iraq changed significantly between the time the applicant lodged his application February 2012 and his return to Iraq in October 2012. I have given no weight to this submission.

    Conclusion on non-compliance

25. I am satisfied that the applicant fabricated the claims that he was the subject of a fatwa issued by a Shia militia in Basra when he left Iraq and that he feared persecution for reasons of his Sunni religion.  I am satisfied that he was not of interest to any Shi’a militia group or anyone else at the time he left Iraq or when he made the claim for protection. 

26. For these reasons, I find 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?

27. 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).

28. 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

29. The correct information is that the applicant did not leave Iraq and seek protection in Australia because he was wanted by a Shia militia in Basra or anywhere else in Iraq following the issuing of a fatwa against him in 2010 or because he feared serious harm for reasons of his Sunni religion.

30. This consideration weighs heavily towards cancellation of his protection visa.

    The content of the genuine document (if any)

31. This is not relevant in the present case as the NOITCC relied solely on s.101 of the Act and not on s.103 of the Act (relating to bogus documents).

    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

32. I am satisfied that the delegate’s decision was based largely on the applicant’s false claims that he had been targeted by Shia militias who issued a fatwa against him and that he feared persecution because of his Sunni religion.

33. This consideration also weighs towards the cancellation of his protection visa.

    The circumstances in which the non-compliance occurred

34. I find that the applicant knowingly and deliberately provided incorrect information regarding his fear of returning to Iraq in order to obtain a visa and reside in Australia. 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. 

1. This consideration weighs heavily towards the cancellation of the applicant's Protection visa.

   The present circumstances of the visa holder

2. The applicant’s wife and children remain in Iraq. He is working in Australia. There is no evidence to suggest that he has developed strong ties in Australia or that any Australia citizen or permanent resident would be adversely affected by the decision to cancel his visa.

3. I give this consideration no weight in favour of the applicant.

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

4. In his response to the notice of intention to cancel his visa because his return to Iraq in 2012 suggested that he had not provided an honest account of his circumstances in Iraq the applicant maintained that his claims were true. He continued to maintain that that this was the case in his submissions to the Tribunal. As discussed above, in order to overcome the problem created by his voluntary return to Iraq he provided further false evidence regarding his movement and his whereabouts during his visits to Iraq. He continues to maintain that his original claims were true.

5. This consideration weighs towards the cancellation of the applicant's Protection visa.

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

6. There is no evidence before me which indicates that there have been other instances of non-compliance by the applicant.

7. I give this consideration some weight in favour of the applicant.

   The time that has elapsed since the non-compliance

8. The relevant non-compliance occurred on 19 February 2012 when the applicant completed his application for protection. Over seven years have elapsed since the non-compliance took place.

9. I give this consideration some weight in favour of the applicant.

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

10. There is no evidence before me which indicates that there have been any breaches of the law by the applicant since the non-compliance.

11. I give this consideration some weight in favour of the applicant.

    Any contribution made by the holder to the community

12. It appears that the applicant has worked during the periods he has resided in Australia since being granted a protection visa. However, no evidence has been provided which suggests that he had made any other contribution to the community during this time.

13. I give this consideration no weight in favour of the applicant.

    Other considerations

14. 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.

15. If the applicant’s Protection visa is cancelled, he would be barred under s.46(1) of the Act from making a valid application for a further visa. He would also be barred under s.48A(1B) of the Act from making a further application for a Protection visa while in the migration zone. As an unauthorised maritime arrival, he would also be barred under s.46A(1) of the Act from making a valid application for a further visa, including a Bridging visa, and may be detained.

    As discussed below, the applicant is not owed protection obligations and may voluntarily return to Iraq particularly as he has returned to Iraq voluntarily on two occasions after being granted a Protection visa. In these circumstances, I am satisfied that the applicant would not be subject to indefinite detention if his Protection visa is cancelled as he can voluntarily return to Iraq. On the evidence before me, there are no persons in Australia whose visas may be cancelled under s.140 of the Act as a result of the cancellation of his Protection visa.

16. I give this consideration no weight in favour of the applicant.

17. An international treaty obligation assessment was undertaken by the Department in relation to the applicant and the delegate found that the applicant was not a person to whom Australia has non-refoulement obligations.

18. At the hearing I advised the applicant that if I decided that his visa should be cancelled I would then consider whether he was currently owed protection in Australia.  He maintained that the claims he provided in his protection visa application were true and claimed that he continued to fear that he would be killed or seriously harm if he returned to Iraq by Shia militias as a result of the fatwa which had been issued against him and because Shia militias continued to target Sunnis in Basra and elsewhere in Iraq. Following the hearing his representatives provided an addition submission which referred to violence in the Basra area.

19. As discussed above, I do not accept that a fatwa was issued against him in 2010. It follows that I do not accept that his business was destroyed or his brother was abducted and tortured or that members of his family experienced problems of any kind because a fatwa had been issued against him or that he was at risk of serious harm from Shia militias because of the fatwa at the time he left Iraq in 2011 or when he applied for protection in 2012 or the members of a Shia militias continued to search for him after he left Iraq because of the fatwa. It follows that I do not accept that he faces a real chance of suffering serious harm for any of these reasons reason.

20. As also discussed above, I accept that the applicant and his family may have experienced some problems during the period in which Shia militias controlled much of Basra between 2006 and 2008. However, there is no credible evidence before me which suggests that he or other members of his family experienced problems following this time.  Furthermore, there is no credible evidence before me which suggests that the applicant was threatened or harassed or harmed by Shia militias or anyone else during the 28 months he spent in Iraq in 2012-13 and 2015 because of his Sunni religion or for any other reason. As discussed above I believe he spent most or all of this time at his home in Basra and in the absence of any evidence to the contrary I find that he was not of adverse interest to anyone in Basra during that period.

21. There is nothing in the evidence before me which suggests that there has been a change in the applicant’s circumstances or the situation in Basra since his most recent return to Australia such that he would be of particular interest to members of a Shia militia or anyone else within the reasonably foreseeable future if he returned to Iraq.

22. By way of context, while the overwhelming majority of people in southern Iraq are Shia, According to an International Crisis Group report in 2007, residents of Basra prided themselves on being cosmopolitan prior to the outbreak of sectarian violence in 2006 and while precise  data is not available, it appears that Sunnis currently form at least a significant minority of perhaps 40% in Basra, although it appears that neighourhoods in the area have become more homogenous, that is predominantly Shia or Sunni since 2006.[4]

    [4] ‘Basra: Decay of once glorious Islamic city’ 2018, Gulf News, 14 September < Committee on Basra violence to report back to Iraqi parliament on Tuesday’ 2018, Foreign Brief, 25 September <>

    I acknowledge that Basra is not free from violence or discord and that Shia militias continue to have a presence in the city. However, after considering information from a range of sources, the 2017 UK Home Office report[5] cited in the NOITCC concluded that although there were a few reports of Sunnis experiencing human rights abuses by Shia militia or unknown perpetrators in the southern governorates such as Basra, these reports did not form part of a consistent or systematic risk to Sunnis. The recent report from EASO provided by the applicant’s representative and recent DFAT advice indicate that southern Iraq is more secure than other parts of the country. They suggest that criminal violence, tribal violence and violence between Shia armed groups related to control of land and oil revenues and are the main sources of this violence and that the violence predominantly affects those who are actively involved in a militia or tribal group.[6] However, neither report suggests that Sunnis are generally at risk of harm in Basra or other areas in the south of Iraq because of their religion or that the level or nature of violence is such that someone with the applicant’s background would face a real chance of suffering serious or significant harm.

    [5] Country policy and information note – Iraq: Sunni (Arab) Muslims UK Home Office 28 June 2017

    [6] 'DFAT Country Information Report Iraq', Department of Foreign Affairs and Trade (DFAT), 9 October 2018, Section 5.15, p.17 & 29 < 'EASO Country of Origin Information Report - Iraq Key socio-economic indicators', European Asylum Support Office (EASO), 4 February 2019, p.26 <

23. I also note that some recent developments suggest a move away from sectarianism in the area. Protests which erupted in Basra and across the south of Iraq in July 2018 involved young Sunni and Shia Iraqis protesting local and federal governments corruption, high unemployment, nepotism, and political rivalry.  Shia militias and the Iranian consulate were amongst the targets of these protests, which some observers viewed as demonstrating a move away from sectarian politics and with socioeconomic demands and regional identities become more important issues to many in the area.[7]

    [7] ‘Young Iraqis rise up for a life worth living’ 2018, Qantara.de, 21 September < and The Carnegie Middle East Centre 2018, The Basra exception, 19 September <>

    While the applicant has claimed to fear harm because he is a Sunni, the only specific harm mentioned is the possibility that he may be killed or physically harmed by members of a Shia militia. Nevertheless, I have considered the possibility that he may be harmed or face discrimination from members of the community other than those involved in militias.  According to DFAT Sunnis face a low risk of societal violence on the basis of their religion in areas such as Basra and a moderate risk of official and societal discrimination in areas where they are a minority. The risk of discrimination varies according to an individual’s local influence and connections.[8]  As noted above, Sunni constitution a significant minority in Basra and while it may be that some Sunnis face some discrimination in areas such as employment or dealing with officials on relatively minor matters such as obtaining documents, in the absence of any evidence which suggests that the applicant or his family have experienced serious discrimination in the past because of their religion I am not satisfied that there is a real chance that he would face discrimination amounting to serious or significant harm if he returned to Iraq because he is a Sunni.

    [8] DFAT Country Information Report Iraq', Department of Foreign Affairs and Trade (DFAT), 9 October 2018, Section 3.37, p.17 < and DFAT Country Information Report Iraq', Department of Foreign Affairs and Trade (DFAT), 13 February 2015, Section 3.53, p.16 < CISEC96CF1160>

24. After considering all of the relevant evidence, I am not satisfied that there is a real chance or a real risk that the applicant would suffer serious harm or significant harm for any of the reasons claimed if he returns to Iraq now or in the reasonably foreseeable future. I am therefore not satisfied that he is a person in respect of whom Australia has a non-refoulement obligation.

25. I give this consideration no weight in favour of the applicant.

26. I am mindful of the fact that a decision to cancel a Protection visa requires careful consideration of the factors in favour or and against the cancellation of the visa. I accept that the applicant has been in Australia since November 2011 and has worked towards a future for himself and his family, who he hoped to bring to Australia and that apart from the non-compliance discussed in this decision he appears to have complied with Australian law during that time. However, as discussed I have found the claim that he was the subject of a fatwa issued by a militia in Iraq was significant in him been granted a protection visa and that it is unlikely that he would have been granted a Protection visa if it had been known that this claim was not true.  He returned to Iraq twice for significant periods after being granted a visa despite claiming that he feared he would be killed. In his response to the NOITCC he failed to concede that he had provided incorrect answers in his protection visa application and as discussed above, I find that he also provided incorrect information in that response and in his oral evidence at the hearing regarding his whereabouts while in Iraq in 2012 and 2015 and his wife’s circumstances in his absence. There are no obligations under relevant international agreements which would be breached if the applicant’s protection visa is cancelled. Indefinite detention is not a likely consequence of the cancellation of his protection visa.

27. Having carefully considered all the relevant matters, I am of the view that the factors in favour of the cancellation of the protection visa outweigh the factors against it. Therefore, I have concluded that the applicant’s protection visa should be cancelled.   

    CONCLUDING PARAGRAPHS

28. 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

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

    Roslyn Smidt
    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.