1819013 (Refugee)

1819013 (Refugee) [2018] AATA 4215 (24 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1819013
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Rodger Shanahan
DATE:24 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 24 October 2018 at 3:37pm

CATCHWORDS
REFUGEE – cancellation – Protection visa – Iraq – incorrect answers – genuine fear of harm –
extended period of residence in Iraq since obtaining a protection visa – searching for an organ donor – Tribunal does not accept that the applicant was detained and tortured – strong ties to home country and family – travelled on a valid Iraqi passport – limited contribution to Australian society – applicant has not worked in Australia – recipient of welfare payments – decision under review affirmed
PRACTICE AND PROCEDURE – valid s438 certificate
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth) r 2.41

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had given incorrect answers to certain questions in his protection visa application form 866C. 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 4 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent. 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.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
On [date] November 2011 the visa holder arrived in Australia as an Illegal Maritime Arrival (IMA) and indicated that he wished to apply for protection. On 30 November 2011 a Protection Obligations Determination was commenced and on 18 February 2012 the visa holder provided his statement of claims. On 9 July 2012 he lodged an application for a protection visa which was granted on 16 July 2012.
As part of those claims he stated that he was in danger from Shi’a militias from Iraq because he and his brothers worked for [a foreign] company. He claimed that he and his brother [Mr A] were taken by militias in November 2006 and tortured before one of their brothers gained their release. He returned to his job in 2007 but the militia again came to their house and took away his brother [Mr B], while the applicant hid and wasn’t found. [Mr B] was later found dead.
For a while nothing happened then [in] September 2011 he and his brother received a threatening letter and they knew they had to leave lest they suffer the same fate as [Mr B]. They tried to apply for passports but were told by a person at the passport office that a restriction had been placed on them by the militia that meant they were not allowed to leave Iraq. A contact then arranged fake passports for he and his brother and they left Iraq.
He feared that if he returned to Iraq he faced a real chance of being taken by the militia, tortured and killed because he had worked for the [foreigners] and because he was Sunni. He had no defence against the militia and they controlled the government and had their hands everywhere; the Iraqi government could not protect him from the militia. He would not be safe, had no place to hide and would not be able to survive in Iraq.
Subsequent to the grant of the protection visa on 16 July 2012, DIBP records indicate that the applicant departed Australia and travelled to Iraq on:
a.17 August 2012 (for 8 months),
b.21 June 2014 (for 10 months),
c.29 September 2015 (for 6 months), and
d.13 November 2016 (for 8 months).
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 regarding his application for a protection visa:
a.In response to question 45 which asks “What do you fear may happen to you if you go back to that country?” the visa holder stated “Please refer to any documents which form part of the previous protection request and held by DIAC”, referring to his claims he would be taken and tortured by the militia and possibly killed. This information appears to be incorrect as the visa holder has since returned to Iraq on four occasions without apparent impediment or harm.
b.In response to question 46 which asks “Who do you think may harm / mistreat you if you go back?” the visa holder stated “Please refer to any documents which form part of the previous protection request and held by DIAC” referring to his claims he feared harm from militia groups in Iraq. This information appears to be incorrect as the visa holder has since returned to Iraq on four occasions without apparent impediment or harm.
c.In response to question 47 which asks “Why do you think this will happen to you if you go back?” the visa holder stated “Please refer to any documents which form part of the previous protection request and held by DIAC” referring to his claims he feared harm from militia groups as he had a profile due to his employment with [a foreign] company. This information appears to be incorrect as he has since returned to Iraq on four occasions without apparent impediment or harm.
d.In response to question 48 which asks “Do you think the authorities of that country can and will protect you if you go back?” the visa holder stated “Please refer to any documents which form part of the previous protection request and held by DIAC” referring to his claims that the Iraqi Government could not protect him as they were controlled by the militia. This information appears to be incorrect as the visa holder has since obtained a new passport from the Iraqi authorities and have travelled back to Iraq on four occasions for significant periods of time without apparent impediment or harm.
While I note the repeated use of the term ‘the information appears to be incorrect’, it is apparent that the particulars of the applicant’s claims and their relationship to the visa cancellation notice were well understood by the delegate and particularised to the visa holder as part of the notice. Those elements were discussed with the applicant during the hearing.
Discussion
At the beginning of the hearing the applicant was asked about the witness he had noted on his form and exactly what he would talk about. The applicant said that the witness knew all about his kidney condition and his trips to Iraq. The Tribunal established that the intended witness had no first-hand knowledge of the applicant’s activities in Iraq. The applicant advised the applicant that it accepted he had a kidney condition and the applicant was told that the Tribunal did not intend to call the witness because it accepted his medical condition but that if the applicant thought that something needed to be included then the Tribunal would call the witness. The applicant said that he understood.
He was advised about the presence of a s 438 certificate. The Tribunal believes that the certificate was a valid one and the applicant was advised by the Tribunal that, while not all information that was covered by the certificate was relevant but the information that was relevant would be put to him during the hearing. The information that was considered relevant was the discovery of a valid Iraqi passport belonging to the applicant that was found during a search of another person’s luggage traveling through [an Australian] airport on a different day. The tribunal notes that this information was also previously put to the applicant in the Notice of Intention to Consider Cancellation.
Asked if he was known by any name other than [Name 1], he initially said that he hadn’t, but he then said that he had also been known as [Name 2]. This name was used in Iraq and since he had gained citizenship.
It was put to him that the Tribunal had to determine whether there was non-compliance in accordance with the s 107 notice that said no incorrect answers should be given in accordance with s 101 of the Act. The concerns about the nature of the incorrect answers as covered in the s 107 notice were put to him. He was asked why he made the statements he did as part of his application. He claimed the information was all correct.
Asked why he said he needed protection because he didn’t wish to return to Iraq. He claimed Iraq was dangerous and there was slaughtering on the streets and the situation was bad until this moment. It was put to him that he had been granted a protection visa on 18 February 2012 but that subsequent to this he had travelled to Iraq on four [occasions])
Asked why he returned for nearly three years over four visits even though he had claimed he would be killed by Shi’a militias and had nowhere to hide. He claimed he went to Kurdistan in the north where his doctor was. Asked about his points of entry he noted the following:
a.August 2012. Flew into Irbil direct from [another country] (he never left Irbil)
b.June 2014-April 2015: Entered through Basra airport then drove in a private taxi to Irbil. Asked why he didn’t fly to Irbil direct, he claimed that it was an urgent booking and could only find seats into Basra. It was put to him that it was dangerous going to Basra, and he claimed all his life was in danger;
c.Sep 2015: Same as previous. Landed in Basra then taxi to Irbil. He also went to [Country 1] for four days to look for a kidney. He got a taxi from Irbil back to Basra and then entered [Country 1] through the land border close to the border. He didn’t stop in Basra to see anyone. He used an Iraqi passport his brother [Mr C] organised (he lived in Basra) as they wouldn’t accept an Australian travel document. He later changed this to his brother [Mr D]. Asked why he didn’t enter [Country 1] through the crossing closest to Irbil rather than risk coming back to Basra, he claimed that the passport only allowed him to leave through [another area] as his brother had contacts there who wouldn’t enter his details on the computer. In Irbil they are Kurds and don’t speak Arabic.
d.In November 2016 he entered through Irbil directly and had a kidney transplant done there. Asked if he had entry stamps showing him entering Irbil he said that they were all contained in his passport.
Asked why he entered Iraq on four occasions even though he had claimed there was nowhere for him to hide in that country, he claimed that he went to look for a kidney and the process would take many years in Australia. His brother, sister and wife were also all looking for him – they found him on and he had a transplant and would now never go back.
He was asked how he could live in Iraq for nearly three years without problems even though he had previously claimed there was nowhere for him to hide, he claimed the time was broken up and was looking for a kidney and receiving treatment and didn’t live in Basra but lived in the north where there was a stable government. It was put to him that he had been asked in his application if there was anywhere he could relocate to, and he had previously said there was no way to relocate as nowhere was safe. This raised questions about the truthfulness of his answer given his extended periods of residence in Iraq since he had been granted protection.
He claimed that it was an independent government and for someone to live in the north it takes them 15 days to get authorisation, but with an Australian travel document he could go there straight away. He was asked if there was country information that would support this claim and he said it was on the internet – it took 15 days or one month. Asked why he didn’t get this permission in 2012 rather than flee all the way to Australia. It was put to him that he had previously claimed that he could not relocate anywhere, not that it would take him 15 days to relocate elsewhere.
He said he put his life at risk to do this and it was either to die from dialysis or from opponents. Asked where he got his kidney from that was transplanted, he said his wife wished to come to Australia but her application was rejected. His brother [Mr C] gave him his kidney in 2016. Asked why [Mr C] didn’t give it to him in 2012, he claimed they were afraid but later realised that his situation was very serious.
It was put to him that he had previously said he was desperate to find a kidney transplant and he was searching everywhere and went to Kurdistan regardless of the dangers but couldn’t find a kidney donor anywhere. Country information was put to him that siblings and close family members were most likely to have compatible kidneys for transplant and, if he was so desperate for a kidney in 2012 then surely his siblings would have been the first tested. Given his brother donated a kidney in 2016 it was strange that he searched for four years for a donor when he could have received one in 2012 from his brother. The delay didn’t appear to make sense.
He claimed his situation deteriorated quickly and his brother donated it because they had tried to treat it previously. It was put to him that they would surely have tested his siblings in 2012 for their compatibility. He claimed they were tested in 2015 but they were too scared earlier. He was asked why they were too scared to be tested, and he said that they were scared to donate but did it when the situation was too serious for him. It was put to him that tests were only blood tests, and he said that only his brother turned out to be compatible.
He was again asked why his brother wasn’t tested in 2012 and why they sought to bring his wife and children to Australia for testing when his brother hadn’t been tested. It raised concerns in the Tribunal’s mind that this was simply a ploy to get his wife and children into Australia given neither he nor his doctors appeared to have tried to find the compatibility of his siblings. He claimed there was compatibility because she was his paternal cousin. It was put to him that this did not automatically mean she was compatible. He claimed that he applied for his wife and [some] of his children but this was rejected. He and his wife had lived in Basra only – his wife’s family was from Basra.
It was put to him that [in] June 2016 an Iraqi passport in his name was found in the luggage of another person entering Australia (this was advised to him previously in the notice of intention of cancellation). The passport was issued in Basra on [date] 2015 and showed that he departed Iraq [in] November 2015 and returned [in] November 2015. He had claimed in his PV application he had been advised that the militia had placed a restriction on his record that he wasn’t allowed to leave Iraq. He was then asked how he was able to be issued an Iraqi passport in his name on which he travelled if his name was on a list made by the militia. He had said previously that he couldn’t be issued a passport yet an Iraqi passport in his name was found in someone else’s luggage arriving in Australia.
He claimed that his brother paid money to someone to get him an Iraqi passport that could only be used to enter [Country 1] as he needed to get there for medical reasons. He claimed it was valid and he wanted to use it to travel to [Country 2] with it. He was asked why it was hidden in another person’s luggage as the concern was that its existence would reveal that the applicant owned an Iraqi passport whereas he had previously claimed that he was unable to receive one. He claimed that his mother gave it to this person so the applicant could travel to [Country 2] because [Country 2] wouldn’t allow him to travel on his Australian travel document.
He was asked how his mother obtained the applicant’s passport if he had it in his possession when he returned from the border with [Country 1]. He claimed he gave it to his brother to give to his mother, and was then asked why he didn’t keep it in his possession if it was already in his possession. He claimed that he didn’t need it as he only needed it for [Country 1] (he went to [a city in Country 1]), and nobody would approach him if he had his Australian travel document.
He was asked whether it was dangerous to enter the country through Basra in his own name, given he claimed the militia’s hands were everywhere in Iraq. This meant that they would have known that he entered the country. He claimed that he put his life in danger in order to save himself – he also only used [Name 1] on his travel document from Australia. It was put to him that this would have been a close enough match on the computer to highlight interest, and he claimed that he made a big sacrifice, and that there was negligence and they don’t always check.
The applicant was asked if he was working in Australia and he said that he had [a medical incident] after he left the camp. He had [two work licences] but hadn’t been working. He was supported on a disability support pension. His previous hearing was delayed because of a pending court case and he was asked if it had been concluded. He said it had. Asked what it concerned, he claimed that a girl had made false allegations against him. Asked if he had been charged and convicted of anything, he said he hadn’t been convicted of anything but had not been charged.
Asked what the court case was about, he claimed that it was about a girl who made false allegations but again denied being charged with anything. She took him to court and said he was flirting with him. It was put to him this was not an offence and was asked again what the circumstances were. He did not answer directly and his adviser was asked for the background. She stated that he had been charged with stalk, intimidate and intent to cause harm. He pleaded guilty and was placed on good behaviour. It was put to him that he had been charged with an offence, and he claimed he had done no harm and she spoke in English. He was asked if there was an interpreter at the court and he said there was and agreed that he understood the proceedings. The adviser was asked to provide evidence of the court proceedings and sentence and she agreed to do it post-hearing.

He had [several] children, born in Basra. Asked about his sons, he said he had [a number] born in Basra. Asked where [Child 1] was born, he then said he was born in Karbala. Asked why he was born there, he claimed that his wife had been visiting her auntie and gave birth there. Asked why she was visiting given she was very pregnant, she claimed there was a wedding there. He did not go as it was for her family. Her family are all Sunnis. It was put to him that he had a son named [Child 1’s name] which was a very Shi’a name and he was born in the Shi’a holy city of Karbala which called into question whether he was actually Sunni at all, and was actually Shi’a.
His first born son was born in Karbala and named [Child 1’s name] and this was perhaps deliberate as part of his Shi’a faith. He claimed his daughter was named [name] but he wasn’t Christian. [Child 1’s name] was a name for anyone. He claimed that during the Saddam era names were for anyone – it was put to him that [Child 1] was born [well] after Saddam’s time. He claimed for them all names are equal and they mix with everyone, Sunni, Shi’a, Christian. It was put to him that he had claimed he was targeted by the Shi’a. He claimed it was certain Shi’a groups.
It was put to him that it appeared strange that Shi’a militias were coming after him because he was Shi’a, and yet he named his son [Child 1’s name]. He claimed his wife named him when they were there. [Child 1’s name] was a name to be used by anyone and even Christians used the name. Asked whether it was common for Christians to use this, he said anyone could use these names. It was put to him that [several female names] were all prophets in Islam (or the mother of a prophet) but yet [Child 1’s name] had nothing to do with Christianity. He said Sunnis could call a son [Child 1’s name] and a Shi’a could use [another name] – it was up to him to name his son.
Jaysh al-Mahdi and al-Fadhila were after him. It was put to him that Jaysh al-Mahdi were no longer around and he claimed they were still present and there were even more groups. Basra was unsafe and he feared for his family’s safety. It was put to him that he had been tortured very badly and his body turned blue and he was asked if there was any evidence of this such as photos after his release. He pointed to scars on his [body] and that he had [other injuries]. It was put to him that just because he had an injury it didn’t necessarily mean that it occurred in the way in which he said it did. He was asked whether he had any post-release photos showing his injuries, or hospital reports, or the Tribunal had only to rely on his oral claim. He said he could show his [other injuries]. He claimed he couldn’t keep pictures from 2006 and hadn’t thought to take any.
His brother [Mr B], [Mr D] and [Mr A] all worked for the [foreign] company in Iraq. [Mr D] lived in [Town 1] [on] a farm. Asked what happened to him, he claimed he lived there with his in-laws. Asked why the Shi’a groups were after him, he claimed that the applicant and [Mr B] were the main targets. It was put to him that he claimed the hands of the militia were everywhere and he couldn’t hide anywhere in Iraq, he had been tortured and sent a threatening letter for working for the [foreigners] yet nothing happened to [Mr D]. This raised questions as to whether anyone was interested in the applicant at all.
He claimed [Mr D] lived on a farm and didn’t go to Basra and had the intention to go to [Country 3] to apply for protection as the situation there was very bad – he was applying for a passport. It was put to him that [Mr D] had been living there for years and the applicant said [Mr D] didn’t live in Basra. He was again reminded that he had said there was no safe place to hide in Iraq (not just Basra) because he had worked for the [foreigners].
[Mr D] didn’t go out and just stayed on the farm. The applicant was asked if he went to [Town 1] whether he would be okay, and he said that he didn’t go to [Town 1] and he would be targeted because he was the senior person after his brother [Mr B] died. He claimed that the parties wanted to kill you or kidnap you for ransom. Someone from his wider family been killed. Asked again if he could live with [Mr D] in [Town 1] and [work], he claimed [Mr D] was in hiding and he would be killed if someone dobbed him in. Asked why [Mr D] hadn’t left for [Country 3] in the last six years, he claimed that he didn’t have money and was now arranging passports.
[Mr C] was in Basra but he was young and didn’t work [and] was with the applicant’s wife and children. Asked how old he was, he said [Mr C] was [age years old] (he was actually [a few years older] according to the applicant’s visa application). He was asked why [Mr C] wasn’t kidnapped and killed, or used to draw [Mr D] or the applicant to return to Basra, or targeted by the Shi’a militia in Basra and he claimed that [Mr C] didn’t work with the [foreigners]. It was put to him that [Mr C] was Sunni which should have meant he was targeted if his claim that Sunnis in Iraq were being targeted. He claimed that [Mr C] was very vulnerable and anything to happen to him at any time as the situation in Basra was very bad.
It was put to him that it was strange that, after being kidnapped, tortured and ransomed he went back to work with a [foreign] company and then the militia sent him a letter rather than just killing him. He claimed that threatening letters are normally sent to people to leave the area. Hit was put to him that the family hasn’t moved, and he claimed that his family had moved to another area. It was put to him that if the Shi’a militia were everywhere they would know where they were. He claimed there were only females and [Mr C] but he was young and not known to the militia. [Mr D] would be targeted if someone dobbed him in.
He was advised about the existence of the ITOA letter and the finding that indicated that if he were returned to Iraq, Australia would not breach any of its international obligations. He claimed that returning to Iraq after all this destruction would mean that his life would be completely ruined and his children had been waiting to come to Australia, there was indiscriminate killing in Iraq and his kidney would fail again. His treatment in Australia was not available in Iraq.
Country information was put to him that there were seven renal transplant programs in Iraq currently, including one in Basra and Basra nephrology and transplant centre had opened with the support of the centre in Baghdad and that around 500 transplants were conducted in Iraq annually. On the one hand he had said that treatment wasn’t available in Iraq yet he had travelled there on four occasions to receive treatment which indicated that he had confidence in the Iraqi medical system. The medical facilities simply had to be sufficient to return to in Iraq, not the same as in Australia.
The Tribunal had concerns that he had not spent all his time in Kurdistan and it made no sense that he hadn’t tested his siblings for compatibility. The Tribunal had concerns that the Shi’a militia had no interest in him given the presence of two brothers living in Iraq and he had returned there four times despite previously claiming that nowhere in Iraq was safe. There were also concerns that he was not even Sunni but was Shi’a, that he was never on a list stopping him from getting a passport and the hiding of an Iraqi passport in someone else’s luggage was because he knew this would be against his previous claim. Concerns were also apparent that he may never have been detained, tortured or given a threatening letter. Country information also indicated that medical facilities were available for his condition and he had a wide family support network in Iraq, including his immediate family.
He claimed that there was no kidney available in Australia, and the 500 people in Iraq who received transplants only lived for two or three years. He went to Iraq to receive a kidney not to receive treatment. There was nothing in the fact that his son’s name was [Child 1’s name] that would indicate the applicant was Shi’a. He repeated that his treatment was only available in Australia, they didn’t have the tablets he used in Australia, in Iraq.
He claimed in detention [details deleted] and he had given the Tribunal these reports. He hadn’t seen his wife and children for six years. Asked if he had ever seen his wife or children since he had been back, he then said that his wife visited him when he was there and he had a child with his wife during one of his visits. He said he had seen his children when he had the kidney transplant, and then when pressed said they visited him during school holidays.
Analysis
While I accept that the applicant has had a kidney disease and had a transplant in Iraq, I am not satisfied that the applicant has travelled to Iraq exclusively to search for a donor and to undertake the procedure. To begin with, country information indicates that siblings and other close family relatives are generally the most suitable donors and that they are tested via blood tests and other non-invasive procedures to assess their suitability.[1]
[1] accessed 15 October 2018
Given this, his brother’s (who ultimately donated his kidney) suitability could have been established very early on in the process. The applicant had claimed that his siblings were scared of the procedure (meaning the live kidney transplant rather than the compatibility testing procedure which is non-invasive) and that he and his brother spent years searching for a kidney without success, and his brother only donated the kidney once the situation became very serious. The issue of interest to the Tribunal however, is not whether they were scared to donate, but that the applicant claims that no family member underwent basic tests (such as blood tests) to see whether they were compatible. It is reasonable to believe that the applicant’s doctors in Iraq would have done this early on in the consultation stage when the applicant claimed he returned to Iraq for the sole purpose of seeking a donor.
The applicant’s willingness to return to Iraq on four occasions is also inconsistent with his claim made in his protection visa application that he had no place to hide and would not be safe or able to survive in Iraq. Not only did he survive, he was able to father a child and to receive a kidney transplant in the nearly three years (over four occasions) in which he lived there.
I do not accept that he exclusively went to Kurdistan and only transited through Basra (or caught a service taxi from there) as he could not get a direct flight. This does not explain why he did not route through Baghdad and avoid Basra entirely (the alleged location of his persecution and of his family), or even use another carrier entirely.
I also note that his response to the Notification of Intent to Cancel stated that ‘he departed to [Hospital 1] for [a test]’ (folio 147) and there are some medical reports from [November] 2015 in the name of [(the applicant’s name)] from the same hospital (folios 218 & 220) which is inconsistent with his claim that he spent no time at all in Basra. While I am willing to accept that he spent some time in Irbil, Kurdistan I am satisfied that he also spent considerable periods of time in Basra with his family.
I do not accept his claim that his doctor in Irbil sent him to see a specialist in Basra and that he went there on a day trip but didn’t stay there because it was unsafe. It lacks credibility that the hospital that had already treated the applicant and that would perform his kidney transplant would not have the requisite specialist and would send the applicant to a place as allegedly dangerous as Basra for a consultation. The applicant appears to have attended an ultrasound and x-ray specialist (folio 182) in Basra and it lacks credibility that the kidney transplant hospital in Irbil did not have such a specialist within its facility or elsewhere in Irbil. Nor does it explain why he was only sent all the way to have an ultrasound in Basra on only one occasion in the four visits to Iraq.
There are also inconsistencies in the evidence he has presented regarding the location of his kidney transplant. Post-hearing he provided a letter (folio 384) saying he had been transferred from a public hospital to [Hospital 2] for the procedure, yet earlier he had presented an invoice for the procedure from [Hospital 3] (folio 180). While this inconsistency of submitted documentation raises concerns regarding the credibility of the applicant’s evidence the Tribunal is still willing to accept that the procedure was conducted in Irbil.
I have taken into account the post-hearing submission from the applicant with what is alleged to be copies of lease agreements for properties in Irbil for the entire time of his presence (folios 348-52), however I lend them little weight. I have already noted above that the applicant was in Basra for medical tests even though he denied at hearing that he had ever been there on his return trips. In addition to this, country information indicates that fraudulent documents are commonly and cheaply available[2], and they could have been produced on any home computer.
[2] DFAT Country Information Report – Iraq, 9 October 2018
The safety that he claimed Kurdistan provided is also inconsistent with his claim in his protection visa application that he could not relocate elsewhere in Iraq. Although he claimed that one required permission to stay in Kurdistan and that this took 15 days to a month to obtain, the issue regarding his ability to relocate was whether it was possible at all, not whether he had to wait 15 days or a month for permission.
I do not accept that the applicant was able to obtain a legitimate Iraqi passport to enter [Country 1] because his brother paid money to someone. He had claimed in his protection visa application that his name had been placed on a list by the militia that precluded him from being issued a legitimate visa. It is reasonable to believe that it was simply a matter of paying money to obtain a genuine Iraqi passport then this is what he would have done when he left Iraq in 2012.
The only reason that he owned up to owning a legitimate Iraqi passport was because it was found in the luggage of another Iraqi national entering Australia on a different flight. I am satisfied that this subterfuge was because the applicant was aware that its discovery on his person would contradict his protection claim in which he stated he was unable to access a legitimate Iraqi passport.
While I accept that the applicant may have worked for a period with a [foreign] company, I do not accept that he was ever kidnapped, tortured and ransomed for doing so, and then later sent a threatening letter when he went back to work, that his brother was killed for working for the [foreign] company or that he is of any interest to the Shi‘a militias or anyone else for this or any other reason, either now or in the reasonably foreseeable future.
The claims of his detention and torture (along with the death of his brother) rely solely on his oral testimony, which I have found lacks credibility. I place more weight on the fact that [Mr D] (his brother who he claimed also worked for the same company) had remained in Iraq unmolested for the past six years. While he claimed that [Mr D] never moved off the farm he lived at in [Town 1] and was trying to escape to [Country 3] and was now getting passports, I find his total isolation for six years to be implausible and the fact that he had not sought to get passports in the six years prior to be indicative of someone who is not fearful of his current circumstances. I also note that his claim that [Mr D] didn’t leave the farm is inconsistent with his claim that it was [Mr D] who organised the purchase of a genuine Iraqi passport through a contact and that [Mr D] also had contacts at [another] border post.
Similarly, a younger brother [Mr C] lived with the applicant’s family in Basra had similarly been left alone. I do not accept that this was because [Mr C] was only [age years old] (he was actually [a few years older]) and wasn’t known to the militia. He had also claimed that in January 2012 the militia had raided his home after he had left the country, detained two of his uncles, tortured them and then ransomed them back to the family. Given this that showed a willingness on the part of the militia to allegedly target his family members, along with his claim that the militia control the government and have their hands everywhere, it lacks credibility that his younger brother could remain unmolested in the same location in Basra for six years if the applicant was wanted by the militia.
While I have some concerns that the applicant is actually Shi’a trying to pass himself off as a Sunni, I am willing to accept that the applicant is in fact Sunni. This being the case, I note that country information states that Sunnis face a low risk of social violence on the basis of their religion[3], and this has been supported both by the fact that the applicant has returned to a country in which he had previously claimed he was unable to hide, and the fact that his two brothers and family have lived without incident in Iraq for the last six years.
[3] Ibid
I have taken into account the country information provided by the applicant post-hearing but lend more weight to the DFAT country information and the lived circumstances of his family members in Iraq. I note that in the UK Home Office report (folios 355-78) it states that a Sunni will not be at real risk of persecution or serious harm from the state, nor will they face a real risk of persecution or serious harm from non-state actors in the southern governorates.
I am also satisfied that the applicant will be able to receive medical support that is sufficient for his condition. He has exhibited confidence in the Iraqi medical system by seeking treatment there and having his kidney transplant operation successfully conducted there. I do not accept that the treatment he required was not available to him in Iraq. He has not indicated any medical evidence (and a lot has been provided) that supports this claim, and none was included in his post-hearing submission (folio 345). I have already noted several instances of inconsistencies in his claims that call into question his credibility as a witness. He also has access to an extended familial support system in Iraq through his wife and children and siblings, which is not available to him in Australia.
I have also taken into account the large amount of (largely medical) documentation that has been provided as part of the submission (duplicate tender bundles at folios 313 and 159) and the post-hearing bundle (folio 343). I can however lend it little weight. The medical documents indicate that his brother in Iraq was identified as a potential donor in September 2015 (folio 237) but then in April 2016 there is medical discussion from another physician about bringing out the applicant’s wife for tests (folio 246). This was repeated in June 2016 with the doctor also commenting on the fact that the applicant’s brother wished the physician to support the applicant’s brother in Australia as a carer for the applicant, even though the doctor wasn’t clear why the applicant needed a carer (folio 249).
I have also taken into account a report from a psychologist from July 2018 that diagnosed him with PTSD and a range of depressive elements. I note however that this is based, in whole or in part on his ‘experiences in the Iraq war’, ‘history of death threats in Iraq’ and the kidnapping of his son. He has not previously mentioned the kidnapping of a son in Iraq, and I have found the death threats in Iraq to be a fabricated claim. Similarly, a letter from [an organisation] mentions claims made by the applicant that the Tribunal has found to have been fabricated. No medical evidence has been offered that indicates the treatment he requires can only be given in Australia.

There is nothing contained in the submission from the applicant’s adviser that is of sufficient relevance to outweigh the inconsistencies evident throughout the applicant’s claims such as the ability of his brothers (one of whom allegedly worked for the same [foreign] company) to live in Iraq unmolested for the past six years even though at least one was wanted by the Shi’a militias, accessing a legitimate Iraqi passport when he said he was on a list that forbade him from being issued one, or concerns about the plausibility of his account such as going to Basra for a specialist appointment on one day from Irbil and never having visited it on any other occasion, or his brother or siblings not being tested for their compatibility as kidney donors until 2015.
Conclusion on non-compliance
I am satisfied that the visa holder fabricated his claim regarding the interest in, detention and torture of him by Shi‘a militias. I am further satisfied that neither his brother nor his uncles have been detained, nor that his brother was detained and killed by militias. Given I have found that the applicant is not, nor has he ever been of interest to Shi‘a militias for working for [a foreign] company and that he has been able to return to Iraq on four occasions over a four year period and spend a total of approximately 32 months there without incident, I am satisfied that he gave incorrect answers to questions 45, 46, 47 and 48.
In particular he had claimed in those questions that variously, if he returned he would be at risk of being tortured and killed by Shi‘a militias because he had been employed by a [foreign] company, and that the Iraqi government couldn’t protect him as as they were controlled by the militia. Yet between 2012 and 2016 he returned to Iraq on four occasions for a combined period of around 32 months without any harm occurring to him. 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, nor had he been of interest Shi’a militias. Neither had he ever been detained, let alone tortured and ransomed by any militia group. It was not true that he would not be able to survive on return to Iraq. The Tribunal considers the provision of incorrect information when applying for a protection visa to be serious and goes to the integrity of the migration program. The Tribunal gives significant weight to the fact that 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 the applicant had been detained and tortured by Shi’a militias for working for [a foreign] company and that they would still target him on his return, that there was nowhere for him to relocate to and that the Iraqi authorities could not protect him.
For the stated reasons the Tribunal has found that the applicant never was, is not nor will he be of interest to the Shi’a militias for having worked for a [foreign] company, for being Sunni or for any other reason. This is evidenced through his willingness to undertake multiple trips to Iraq and to live in that country for extended periods of time. The Tribunal therefore finds that the decision to grant the applicant a protection visa was wholly or partly based on the incorrect information that the applicant provided in the application for a protection visa.
· the circumstances in which the non-compliance occurred
The Tribunal considers that the applicant has knowingly provided incorrect information to the Department with respect to his fear of returning to Iraq 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, although he tried to justify his visits solely on the basis of medical exigencies
· the present circumstances of the visa holder
The applicant’s immediate family (less his brother in Australia) all live in Iraq. His decision to travel back to Iraq for extended periods on four occasions (even taking into account some of it was for medical purposes), during which time he met with his family and fathered one more child with his wife indicates a close attachment to his family in Iraq. The hearing was conducted in the Arabic language with the use of an interpreter which indicates that he has not mastered the English language.
Not having worked in this country and with his brother as his carer, and with limited (if any) English, his roots in this country do not appear to be deep. On return to Iraq he would be reunited with his family and easily reintegrate back into Iraqi society. Indeed, since he arrived in Australia in 2012 he has spent nearly as much time back in Iraq as he has in Australia. Given he has not worked in Australia nor contributed in any meaningful way to the broader community, few if any people or organisations will be disrupted as a result 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 not conceded that incorrect information was provided by him with respect to his protection application. He maintains that there is a real chance that the Shi’a militia are still trying to detain, torture and kill him and that there is nowhere that is safe for him in Iraq. He did say that there was a stable government in the north but that special permission that took 15 days to a month was required before one could stay there.
· 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 back to July 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
The applicant has charged and found guilty on a charge of stalk/intimidate intend fear physical etc (folio 383). The applicant was evasive when asked about the issue and the Tribunal had to ask his adviser to clarify the situation. This is a demonstrably serious offence and evidence that the applicant has not accorded with the community’s expectations of individual behaviour. The Tribunal gives this consideration some weight.
· any contribution made by the holder to the community.
The applicant has not been working since arriving in Australia, and has been drawing Centrelink benefits during that time, along with his brother who acts as his carer. He has also spent nearly three years out of the country in Iraq since he was granted protection. His personal contribution to the broader Australian community has been lacking, giving further weight to the finding that the visa should 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 was ever detained, tortured or threatened by Shi’a militias, is or would be of interest to them because he had worked for a [foreign] company or because he was Sunni. A detailed ITOA was completed, the applicant having been given the chance to submit information to inform the ITOA, and the assessment determined that there was not a real risk that the applicant would suffer significant harm if removed from Australia to Iraq.
I note that the applicant’s family (including an adult brother) have lived in Basra without incident since the applicant left in 2012, and that another adult brother who worked for the same [foreign] company has also lived in Iraq without incident since 2012. The applicant has not been able to provide any compelling country information that people with the applicant’s family’s profile are targeted in Basra or elsewhere.
I also note that the applicant has returned to Iraq on four occasions since 2012, spending approximately 32 months in Iraq. While I accept some of that may have been in Irbil for medical reasons, he has been inconsistent in his evidence regarding his presence in Basra. I am satisfied that he has spent considerable time with his family in Basra.
The ITOA was completed in May 2018 and found that non-refoulement obligations were not engaged in the applicant’s case. I am satisfied that the findings remain current. The Tribunal consider that the applicant’s willingness to return to Iraq demonstrated that he does not have any subjective fear about returning to Iraq, and that there is no real chance that he will suffer serious harm if he were returned to Iraq.
Effect of the Cancellation
The Tribunal understands the effect of affirming the cancellation would cause the applicant to be barred from applying for further visas and that he will be liable to be detained. The applicant has a valid Iraqi passport so can return to Iraq at any time. Therefore the Tribunal finds that indefinite detention is not a possible consequence of the cancellation decision.
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.
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 4215

24 October 2018

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