1901660 (Refugee)

1901660 (Refugee) [2020] AATA 2370 (6 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1901660
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Rodger Shanahan
DATE:6 May 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect answers in visa application – return visit to Iraq – nationality – Iraqi citizenship – race – Bidoon – employment – education – fear of the Mahdi Army – Iraqi National ID cards – kidnapping of son –credibility concerns– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107-109, 424AA
Migration Regulations 1994, 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 was not stateless and had returned to Iraq, a place that he had claimed he would be killed if he travelled to. 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 Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
An interpreter in the Arabic language was used and if there were any procedural issues presented such as one person talking over the top of the other, they were resolved as they presented themselves by the Tribunal member.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
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?
[In] July 2011 the visa holder arrived in Australia at Christmas Island as an Illegal Maritime Arrival (IMA). Upon arrival the visa holder claimed Australia’s protection from Iraq.
In lodging the Protection visa application, the visa holder completed Form 866C ‘Application for a Protection (Class XA) visa’. In this application form the visa holder answered the following questions:
Question 20 Your citizenship (if different at birth). He stated: ‘Stateless’
Question 23 If you are stateless, how, when and why did you lose your citizenship? He stated: ‘Biddoon born in Kuwait. Expelled in 1991 and went to Iraq’
Question 41 I am seeking protection in Australia so that I don’t have to go back to …He stated: ‘Iraq’
To the following questions the visa holder responded with ‘See POE statement’. This statement is the statement the visa holder made with the assistance of his IAAAS agent on 4 November 2011 to support his protection claims and is shown below.
Question 42 Why did you leave that country? He stated: ‘I was discriminated against in Iraq because I do not have citizenship…..’
Question 46: Do you think the authorities of that country can and will protect you if you go back? If not, why not? He stated: ‘The government would not be able to protect me as I am stateless and have no citizenship rights.’
The visa holder provided the following POE statement in support of his claim:
I left Kuwait in 1991 and am a stateless Bidoon. I fear that if I was forced to return to Iraq I would be at risk of being harmed because of my status as a stateless Bidoon and Sunni Muslim. The Entry interview states that I have Pakistani and Iraqi citizenship, this is incorrect. I have no citizenship.
I served in the Kuwaiti [Armed Forces] until [August] 1990. When Iraq occupied Kuwait, those who had citizenship fled the country. We did not have citizenship so we could not leave. In approximately March 1991 we were forced to leave Kuwait and my family moved to Iraq.
Some Bidoons were granted citizenship in Iraq at this time, but they had previously lived in Iraq and had relatives in Iraq. I was not granted citizenship. The Iraqi forces gave us the basic papers and distributed us to different areas in Iraq. My family was moved to Nasiriyah. This was a rural area and we continued to live and work with our animals.
When I was sent to that area, my tent was near to a very kind man’s house. He provided me with food and advised me about the area. A few months later I married his sister and he became my brother-in-law.
When I got married, my brother-in-law and I bought some animals so we could sustain ourselves. We stayed close to the town during school terms so that our children could study, and in the holidays we moved far into the desert to graze our animals. My wedding certificate shows that I was born in Kuwait.
Because their mother is Iraqi my children are allowed to study in elementary school, but they are not allowed to go to University. They are also not allowed to get employment in Iraq because they do not have citizenship.
I was discriminated against in Iraq because I do not have citizenship and because I used to work for the Kuwaiti [Armed Forces]. People would say to me that I was like an animal, working with animals. I was also targeted for being a Bidoon and a Sunni Muslim.
My children were mocked and teased at school because their father is Bidoon and their mother is Iraqi. They were harassed because their mother is a Shi’a and father is a Sunni.
After this problem I decided I had to leave Iraq because I was scared for my life. I found a smuggler called [name]. He arranged for me to fly out of Iraq on a fake Iraqi passport. I don’t have citizenship and so I can’t get a genuine passport.
I fear that I would be killed if I was returned to Iraq. There is nowhere safe for me in Iraq. If I wanted to move to a different area I would need to present a letter from the local police in Nasiriyah. If I went to them this would put me in danger and the Mahdi Army would find me and kill me. There are members of the Mahdi Army in the police and government and so I would not be safe if I returned.
The government would not be able to protect me as I am stateless and have no citizenship rights. The Mahdi Army is powerful and well connected and they would be able to find me and kill me.
For all of the above reasons, I ask the Australian government to protect me and not send me back to Iraq.”
On 14 March 2012 based on the information provided, as well as meeting other relevant criteria the visa holder was granted a Protection visa. [In] November 2012 the visa holder departed Australia for [Country 1]. [In] February 2013 the visa holder returned to Australia and indicated on his incoming passenger card he spent the majority of his time overseas in Iraq.
[In] June 2012 the visa holder’s wife ([name] - DOB: [given]) lodged an application for a Global Special Humanitarian (GSH) (Subclass 202) visa where the visa holder was the proposer of that application. In that application the visa holder’s children were listed and were declared to be stateless.
As part of this application the visa holder provided a number of documents including an Iraqi marriage certificate and copies of Iraqi National ID cards for his spouse and children. The marriage certificate was issued by the Iraq Ministry of Justice and the children’s ID cards all contain registry numbers.
On 16 August 2013 the application for a GSH visa was refused. On the basis of the documentation that was provided with the GSH visa application, it appears that the visa holder is an Iraqi citizen and not stateless as claimed in his Protection visa application. This is based on the following considerations:
a.Documents.
i.Iraqi National Identity card (personal identity card) (Number: [number], Issued: [in] 2009) with translation. This document indicates the visa holder is an Iraqi citizen as only Iraqi citizens may hold this document. As this card was issued in 2009, it appears that the visa holder was an Iraqi citizen when he lodged his application for a Protection visa.
ii.Marriage Certificate ([number]/1991)
1.The marriage certificate that was provided indicates the visa holder married his wife [in] July 1991 and the certificate was issued by the [named] Court.
2.This document includes a civil register number which indicates the visa holder’s marriage has been registered with the Iraqi authorities. This subsequently indicates the visa holder was listed on the Iraqi Civil Register and therefore appears to be an Iraqi citizen. This further explains why the visa holder was issued with an Iraqi Identification card as previously discussed.
b.Family Composition. The visa holder’s [children] are all Iraqi citizens as they all hold Iraqi National Identification cards. According to country information new-borns are issued their first National Identification card based on the birth certificates and their parents’ Iraqi National Identity cards. Furthermore, as per Iraq’s pre 2006 Citizenship laws, an Iraqi birth certificate can only be issued to a child whose father is an Iraqi citizen.
Based on this information it appears that the visa holder is an Iraqi citizen and not stateless as previously claimed.
It therefore appears the visa holder has provided incorrect information with his application for a Protection visa. The visa holder claimed as part of his application he was stateless and he faced discrimination in Iraq as he was not a citizen. The visa holder claimed the Iraqi authorities could not protect him and he therefore could not return to Iraq. The visa holder subsequently provided the Department with evidence he is a citizen of Iraq and he has declared he travelled back to Iraq. This contradicts the visa holder’s claims to be stateless and that he cannot return to Iraq.
The visa holder’s Protection visa was granted on the basis he satisfied the minister he engaged Australia’s protection obligations under the Refugees Convention on the basis he is a stateless Bidoon. The visa holder has consistently maintained he will be persecuted in Iraq due to his ethnicity and being stateless whereby he could not return. This claim was fundamental to the determination the visa holder is a person to whom Australia has protection obligations.
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 (detailed discussion of the issues and findings relating to the applicant’s responses follows):
In response to question 20 on the form 866C which asked about the visa holder’s current citizenship, the visa holder responded with “Stateless”. The response at Question 20 is incorrect because the Department has found that the visa holder is an Iraqi citizen as evidenced by his provision of the Iraqi ID card, the visa holder’s marriage certificate and his children’s ID cards.
In response to question 23 on the form 866C which asked about the loss of his citizenship the visa holder stated ‘Biddoon born in Kuwait. Expelled in 1991 and went to Iraq’. The response at Question 23 is incorrect because it has been demonstrated above that the visa holder is an Iraqi citizen as evidenced by his provision of the Iraqi ID card, his marriage certificate and his children’s ID cards.
In response to Question 42 on the form 866C which asked why the visa holder left Iraq, the visa holder stated he left Iraq because he was discriminated against as a stateless person. The response at Question 42 is incorrect because the visa holder has provided an Iraqi ID card, a marriage certificate and his children’s ID cards indicating he is an Iraqi citizen and therefore would not be discriminated against on the basis he is a stateless person.
In response to Question 46 on the form 866C which asked whether the visa holder believes the authorities can protect him, the visa holder stated the Iraqi authorities would not protect him as he is stateless. The response at Question 46 is incorrect because the visa holder has provided an Iraqi ID card, a marriage certificate and his children’s ID cards which indicate he is an Iraqi citizen and therefore would not be discriminated against on the basis he is a stateless person.
Discussion at Hearing
The visa holder was asked if he was known by any other name and he said that his name was [name]. He was then told the answers that he gave to questions 20, 23 and 41, 42 and 46, including relevant elements of what was included in his statement.
He was advised that the presence of an Iraqi ID card, his recording on the civil register and ID cards held by his children, as well as the fact that he travelled to Iraq for three months in 2012 calls into question whether he was stateless as he claimed. He was then advised about s 424AA and that the information that was put to him was covered by s 424AA. He was asked how he could be stateless yet he and his family possessed these documents.
He said his wife was Iraqi and always had been. He didn’t have citizenship and he was given an Iraqi ID card after he was expelled in 1991 so he could move around freely. It wasn’t issued by the authorities, but by a person. Asked for more detail, he claimed that the ID was issued by a government official who was in a good relationship woth his brother-in-law. He was told not to talk to people about it but to present it at checkpoints if asked. It was issued in 1991.
It was renewed after a period of time and he last renewed it in 2008. Asked how many times it was renewed between 1991 and 2008 he said he couldn’t remember but it was many times. Asked for more detail he said it was maybe every five or six years – asked how many ID cards he had been issued, he claimed he couldn’t remember. The person who gave ot to him originally was gone as he was form the Saddam era.
Asked who gave him the ID in 2008, he claimed that he went to the auithorities to try to get citizenship and a passport but he was told he was illegal and couldn’t be issued one. He claimed it was renewed for the purposes of traveling only. He was asked why they would do this if he was there illegally and he said that originally this document was illegal. It was put to him that when he renewed it in 2008 he was able to get an ID as they would have had to check the civil register where he claimed he was not entered.
He claimed that his brother-in-law was known to them as a Shi’a and they gave him an ID just to travel around. It was put to hium that he said this applied in 1991 but he wouldn’t have known the new person in 2008 and was asked how he was able to obtain it then. He claimed that because they are Shi’a and they know each other through the community so they knew each other. He was asked if he had mentioned about the new person issuing him an ID in 2008 previously and he claimed that he wasn;t asked about the person in 2008 and was only asked about the 1991 issue. Asked if he had provided a copy of his 2008 ID he claimed that he did.
He confirmed that he was issued a card in 2008 but had no right to it. Asked how his children were able to obtain their IDs, he claimed they were born to an Iraqi mother in Iraq so could get them but he couldn’t. Asked when they got Iraqi IDs, he claimed the dates were mentioned. They would acquire them at birth and the doctor would give them a document and they would get their citizenship from that. Asked to confirm they received their IDs shortly after birth, he claimed they bot them in 2008 ([children’s names and DOBs]).
Asked why there was such a gap between being born and getting citizenship and why they all appeared to get citizenship around the same time, given he said they could get it at birth, he claimed that there was racism at play and that one gets the document from hospital and it got ruined and he had to replace it. It was put to him that 16 years was a rather large gap between birth and getting a new document. He said that during Saddam’s time he couldn’t speak to Iraqi authorities.
He confirmed that his children were all citizens from 2008 under s 4242AA it was put to him that he told Australian authorities that his children are not allowed to go to university or be employed because they weren’t Iraqi citizens. This inconsistency could indicate that he wasn’t being truthful and could go to issues of his credibility. He claimed the authorities would look at their father’s origin and they were only allowed to do primary school because he was not Iraqi. It was put to him again that in 2011 he had claimed his children weren’t Iraqi citizens but today he said they had been since 2008. He claimed he had said before that his children had only done primary and middle school because they would look up the father’s citizenship. He was again asked about the discrepancy about his children’s citizenship status in what he said in 2011 and what he said today and he claimed he was asked a question and answered it – what he had wasn’t citizenship.
It was put to him that country information indicated there was a change to citizenship laws in 2006 and his children appeared to have citizenship conferred from 2007 and 2008. The reason why there was a discrepancy between what he said in 2011 and what he was saying now was because he was trying to hide the fact. It was quite possible that he may have previously been stateless but became an Iraqi citizen along with his children after 2006. He may have changed his story once it became evident to Australian authorities that his children had Iraqi ID cards.
He said that he didn’t have citizenship and it all had to do with the country. It was also put to him that his marriage certificate noted an Iraqi civil registration number which he wouldn’t have had if he was just given an ID card to travel around with. It may also indicate that he was an Iraqi citizen well before the 2006 law change. He claimd the civil registry was also done by the friend of his brother-in-law.

He agreed he had returned to Iraq in 2012 and was asked whether he needed a visa to enter. He claimed that he entered on an Australian travel document and the Iraqi consulate gave him a visa. Asked if he had a copy of the visa he claimed that it wasn’t printed on the passport and he didn’t have it any longer. It was put to him that if he still had it the Tribunal could have resolved the status of his citizenship as it would have been written on the visa.
While in Iraq he stayed in a desert area outside the city of Basra. His family lived in the same village. They have lived there until now. Asked if they had problems while living there, he claimed that their uncle is with them. This has been the situation since the events that took place with the children. Asked if they moved from the village, he claimed that they moved there after the kidnapping.
He travelled to Iraq in 2012 because his son, and he and his wife had mental health issues after his son was kidnapped by Jaysh al-Mahdi in 2012 around [date]. Asked when he obtained his Australian travel documents, he claimed he travelled [in] November 2012. Asked if he informed the Australian authorities that his son had been kidnapped, he claimed that he sent all the documents previously. Asked again whether he told the Australian authorities at the time his son was kidnapped given he had just been granted protection on the basis he claimed that he couldn’t return to Iraq, he claimed that he explained that he didn’t go to a dangerous area but went to this desert village instead.
Asked what evidence he had of the kidnapping he said that he had provided some documents related to it. Under s 424AA it was put to him that the letter he had provided said that his father had been kidnapped not his son, and that in 2011 he had claimed that he could not return to Iraq because he and his family would be killed – ‘he would rather death than go back’. He had voluntarily returned to Iraq for three months within a year of arriving in Australia and his family were allegedly living in the one place for nine years and nothing had happened to them. This didn’t appear to indicate that any of them were at risk.
He claimed that in Arabic the words for ‘my father’ and ‘my son’ were very similar and he meant ‘my son’. They had the documents from the police to prove the kidnapping. He claimed that he was threatened by the strongest militia in the world that nobody could control. His children were located in the desert and the trouble he had was near Nassiriyyah.
It was put to him that he claimed the dispute happened from an alleged [playground] fight between two children ten years earlier so it appeared hard to believe that after all this time this incident still motivated Jaysh al-Mahdi to expend resources, interest and time to target him. He claimed the militia had no mercy and it didn’t matter for how long. He had provided photos of the torture he had received and the injuries he received from being dragged behind the car in town. It was put to him that the photos showed someone with a cut under their eye and didn’t appear to be at all consistent with someone who was dragged behind a car. He said that everything he said was the truth.
He was asked why if JAM was so good and so strong they hadn’t been able to find his family after nine years of staying in the one place. He claimed that he travelled from the desert area to Basra airport. He claimed that his brother-in-law had to sign a document that said that the visa-holder would not be seen in the Nassiriyyah area and the people who told him this were in a car with the JAM logo. They didn’t travel there as a result.
Asked if his family had tried to come to Australia, he claimed that he applied but it was rejected and he was travelling at the time. Asked if he was a practising Sunni in Australia, he said that he was and went to a mosque in [Suburb 1] – [a named mosque]. The imam used to be [name]. The visa-holder stopped going there for a long time because he has back, heart, mental health and memory problems so he only prayed at home. He stopped going in 2017 or 2018. Asked if he had any family members in Australia, he said that he didn’t have anyone, no cousins, uncles or anyone.
He was asked about any contribution he may be making to the broader Australian community, he claimed that he respected the Australian community and government. If he could have, he would have made more contributions but currently he hadn’t. He was not working in Australia. Since his child had been kidnapped he had serious health issues; fell of a ladder and hurt his back, had mental health issues, heart issues. Asked again if he had ever worked in Australia he said that he hadn’t. He was in receipt of Centrelink benefits but wasn’t aware of what the payment was called – he was in receipt of a pension.
He had never broken the law since he had been in Australia. Under s 424AA it was put that amongst some of his medical documents it mentioned that he couldn’t read or write in Arabic yet he had said that while in the Kuwait [Armed Forces] he claimed that he was taught to read and write and these statements appeared inconsistent and could call into question his credibility. He claimed that he was only taught the numbers and names of the guns that was all.
It was put to him that he had claimed that he had been taught to read and write which is more than just being able to name weapons. He claimed he was just a soldier who was taught some numbers and the weapons but there was no school for low-ranking soldiers. He was asked why he would have said that he was taught to read and write if he now claimed this was not the case. He repeated again that he was taught weapons’ names and it may have been a problem with the translation.
He was advised about the presence of an International Treaties Obligation Assessment (ITOA) and that it stated that there was no impediment to him being returned to Iraq. He claimed that he was being threatened by the harshest militia (JAM) and his family remained there and he couldn’t go there and live with them.
The adviser was asked but didn’t ask for a natural justice break with the visa-holder. He claimed that the visa-holder had given a different translation of the police report which had yet to be given to the Tribunal which referred to their son being kidnapped, not the father. There had previously been a mistranslation.
The adviser claimed that the issue was whether the visa holder gave incorrect information and he had given the appropriate ID document and had given the marriage certificate. This could not be that he gave incorrect information as it was all before the delegate. The delegate said that the children were Iraqi citizens because of their mother – even if the visa holder had claimed the children were stateless, the delegate said they were Iraqi and she still granted him a protection visa. As a result the visa wasn’t granted on false information.
He claimed that stateless people existed in Iraq in their tens of thousands and many of them would be married to Iraqi women. The applicant fitted into a separate government in which he was not an Iraqi citizen.
Analysis
Overall, I found the visa-holder to lack credibility as a witness. I found that he has claimed that he and his children were stateless at the time he applied for protection when they were actually Iraqi citizens, and that his son was kidnapped forcing the visa holder to return to Iraq when this never occurred.
Citizenship
The visa-holder claimed that he was a stateless Bidoon who had been born in Kuwait but was deported to Iraq following the 1991 Gulf War. While other Bidoons were granted citizenship because they had been born in Iraq or had relatives there, the visa holder claimed that he was never granted citizenship.
Against this claim is the fact that the applicant has an Iraqi ID card and his marriage certificate indicates that he is entered on the Iraqi civil register. Both of these issues would indicate that he is an Iraqi citizen and was at the time he applied for protection in Australia. I lend little weight to his claim that his brother-in-law knew a person in 1991 who was able to issue the visa holder with an Iraqi ID card just to travel through checkpoints, and that his brother-in-law then knew the person who replaced the Saddam-era official because of a shared religious identity, and that this person subsequently helped to issue renewed ID cards to the visa holder, the last one in 2008.
Not only is this extremely coincidental that the brother-in-law had relationships with two different officials, the existence of this relationship with a second official was never mentioned until the hearing. It also doesn’t explain why the visa-holder’s name is also in the Iraqi civil register if the reason for having an ID card issued was simply to be able to travel around.
He was also inconsistent regarding the citizenship of his children. In the statement accompanying the 2011 protection visa application, he claimed that his children could not go to university or to be employed in Iraq because they did not have citizenship. Yet in a statutory declaration signed in 2018 he claimed that they received citizenship as a result of the 2006 citizenship law, while during the hearing he claimed that they became citizens in 2007/08.
The fact that they were citizens only came to light when they applied for visas to come to Australia, so his unwillingness to tell the truth regarding their citizenship during his initial protection visa claim gives further weight to my finding that he too is an Iraqi citizen. I do not accept that the inconsistency exhibited in the original statement is the result of poor translation as he has not offered any evidence to support this, nor any other area in the statement where translation errors occurred.
Country information[1] indicates that Iraqi citizens passing themselves off as Bidoon had served in the Kuwaiti military from the 1970s, so it is possible that the applicant has always been an Iraqi citizen. This would account for his being on the civil registry at the time of his marriage in 1991. Or he could have obtained it as a consequence of the 2006 citizenship law. Regardless of when he obtained it, he was an Iraqi citizen and not stateless when he applied for a protection visa in Australia in 2011.
Targeting by JAM
[1] Kuwait: Country Information and Guidance, UK Home Office Report 2016
I do not accept that the visa-holder’s son got into a fight with the son of a JAM member while at school and that this caused a conflict with JAM who threatened the applicant and his family, or that his son was kidnapped by Shi’a militia forcing the visa-holder to return to Iraq in 2012.
To begin with I do not accept that JAM militia would have become involved because of a schoolboy dispute. He claimed in his protection visa statement that JAM did not believe a Bidoon should not be able to hit the son of a JAM member. I have already found that the visa-holder’s children were not Bidoon but were Iraqi citizens at this stage.
I also find the ability of the visa holder to return to Iraq within a year of being granted a protection visa for several months without difficulty and for his family to live there for the last nine years in the one place is not indicative of someone whom the Shi’a militia are seeking to target. I do not accept that JAM told his brother-in-law that they only didn’t want to see the visa-holder or his family in Nassiriyah. This was only raised by him after questions were raised about his willingness to return and his family’s sedentary lifestyle.
He had not mentioned this in his statements previously. Indeed, his statements variously portrayed the impossibility of his return or relocation: he claimed that JAM said that if they found the visa-holder anywhere ‘they will kill me’, that ‘There is nowhere safe for me in Iraq’, and ‘The Mahdi Army is powerful and well connected and they would be able to find me and kill me’ (all folio 65).
No evidence was presented to the Tribunal, nor was any available to it, that indicated the visa-holder had advised Australian authorities that his son had been kidnapped in Iraq and that he had to return. I also note that he provided a number of letters from medical practitioners, including psychiatrists, post-hearing. Those that post-date his son’s alleged kidnapping and his need to return to Iraq to retrieve him make no mention of this incident in any of the medical documentation. Some of them give his personal history and it is reasonable to believe that given the alleged importance of this incident to the visa-holder that it would have been mentioned. This further adds to my concerns that the son’s kidnapping incident was fabricated.
I have taken into account the missing person letter from the police (folio 89) but lend it little weight. Country information indicates that fraudulent documents are commonly and cheaply available in Iraq.[2] I have also taken into account photos of what the visa-holder claims are the injuries suffered by his son during his kidnapping. There is nothing to indicate that they are actually of his son or when they were taken, but to a layman they do not look the aftermath of torture/beating, and certainly not of someone dragged behind a car. The person has a cut under an eye which has caused some swelling and bruising but there are many reasons how this could have been caused.
[2] DFAT Country Information Report – Iraq, 9 October 2018
I have also taken into account but lend little weight to a letter he provided post-hearing from a Muslim cleric based in [Suburb 1] dated March 2013 in which he attests to the fact that the visa holder was threatened by armed men in Iraq which made it impossible for him to return home. It was allegedly based on a conversation the cleric had with the visa-holder’s family so is hardly an independent account, and there is no mention in it of the alleged kidnapping of the visa-holder’s son.
Because of these reasons, I am not satisfied that the visa-holder has any problems with JAM or was required to return to Iraq in 2012 because his son was kidnapped. I am satisfied that his willingness to voluntarily return to Iraq such a short time after being granted protection in Australia, as well as his family’s unmolested existence for nine years is because neither the visa-holder nor his family are of interest to anyone.
For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant because the applicant provided incorrect answers in his answers to questions 20, 23, 42 and 46 in Form 866C.
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 visa holder was an Iraqi citizen and not stateless. He also is not, and never has been wanted by any Shi’a militias in Iraq. I note that the s. 107 notice only refers to the visa-holder’s claim to be stateless. The Tribunal has not had regard to the fact that he is not wanted by Shi’a militias in exercising its discretion. 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 visa holder would suffer serious harm because he was stateless.
For the stated reasons, the Tribunal has found that the visa holder is an Iraqi citizen and not stateless, is not, and never has been wanted by JAM and is able to travel to and reside in Iraq without there being a real chance of suffering serious harm. The Tribunal therefore finds that the decision to grant the visa holder a protection visa was wholly or partly based on the incorrect information that the visa holder provided in the application for a protection visa.
· the circumstances in which the non-compliance occurred
The Tribunal considers that the visa holder 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 and continued to assert that he is stateless.
· the present circumstances of the visa holder
The visa-holder provided a number of letters post-hearing from medical practitioners that made a range of claims including that he suffered from [specified conditions]. He also wears hearing aids and has [another condition].
I do not consider that any of these conditions are sufficient to preclude his return to Iraq. His diagnosis of back pain was contained in a letter dated 12 April 2012 and he travelled to Iraq via [Country 1] by plane in November 2012 for a period of three months which would indicate that it does not restrict him from long-distance plane travel.
The medical reports, particularly those that relate to mental health issues are not indicative of a regular program of therapy. The most recent latter for example was dated February 2016 from a psychiatrist who said this was his second session with the applicant, the first having been one year prior.
I also note that their diagnoses rely in whole or in part on the self-reporting of the visa-holder and I am not satisfied that he has been truthful in the regard. In a letter dated 27 September 2013 for example, the psychiatrist notes that the visa holder was stateless (whereas the Tribunal has found him to be an Iraqi citizen) and that he could not use traffic (the Tribunal took this to mean that he couldn’t drive) or walk because of his physical condition (no mention was made of his having travelled by plane to Iraq and returned to Australia some seven months earlier).
Because there doesn’t appear to be any recent history of mental health treatment, the acceptance by some practitioners of his claim to be stateless when this was not true, and no acknowledgement of the visa-holder’s return to Iraq for three months, I am not satisfied that the diagnoses are entirely accurate. Regardless, there is no indication that any medication that he may require is unavailable in Iraq and, given he does not appear to be in receipt of any regular form of treatment from a mental health practitioner his limited requirements should be able to be met by the Iraqi health system.
No evidence has been offered, nor does the Tribunal have any available to it that would indicate his back condition or hearing difficulties could not be treated in Iraq.
The visa holder claims to have no family in Australia. His wife and children and the remainder of his extended family are therefore back in Iraq. One medical report submitted post-hearing notes that ‘he is incapable of demonstrating a basic knowledge of the English language…of Australian history and of the responsibilities and privileges of Australian citizenship. It has also been noted that he has exhibited symptoms of depression and it is reasonable to believe that being separated from his family for so long would contribute to that. Given this, a return to Iraq would not only reunite him with his family, and place him in an environment where he is culturally and linguistically at ease.
· 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 maintained that he is stateless and is wanted by JAM.
· 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 in his favour.
· the time that has elapsed since the non-compliance

100. The original non-compliance dates from March 2011. The Tribunal notes that a considerable period of time has elapsed but the seriousness of his action in knowingly giving false information in order to be granted a protection visa is such that the time elapsed is not 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

101. There have been no breaches of the law since he has been in Australia and this is given some weight in his favour.
· any contribution made by the holder to the community.

102. On the face of it, he has not contributed significantly to the Australian community. He has never worked in Australia and has been in receipt of Centrelink benefits during that time. Few people and no Australian organisation will be adversely affected by his return to Iraq.
103. The likely consequences of a decision to cancel his visa are as follows:
a.He would become an unlawful non-citizen and liable to be detained and removed from Australia, and
b.He would be limited in the types of visas he could apply for.

104. I consider that the likely or possible consequences of the visa cancellation outlined above are reasonable, given these administrative sanctions are the consequence of obtaining a visa by fraud. I therefore give little weight to the consequences of the visa cancellation decision. I also note that the individual can avoid immigration detention by applying for a Bridging E visa or by voluntarily leaving Australia.
105. The Tribunal has not accepted that the applicant is stateless or wanted by JAM in Iraq or that there is a real chance that he would face serious harm on return to Iraq. An ITOA was completed in August 2018, the applicant having been given the opportunity to submit information to inform the ITOA. It found that non-refoulement obligations were not engaged in the applicant’s case. I am satisfied that the findings of the ITOA remain current. I note that the visa holder has already returned to Iraq once in 2912 for several months without incident.
106. The ITOA addressed these issues but I have also taken into account his claim that he would be harmed because he is a Sunni Muslim or that he would be discriminated against because he had worked for the [Armed Forces]. I do not accept that either would be the case. He has given no independent country information that would support this, nor is any available to the Tribunal. Country information[3] indicates that Sunnis face a moderate risk of discrimination in areas where they are a minority. The visa-holder has not indicated how such discrimination (if it were to occur) would amount to persecution. Given that I have found his family has remained in the one location for nearly a decade without difficulty I am satisfied that the visa-holder would also be able to live there without difficulty.
[3] Ibid
107. The visa-holder’s family remains in Iraq so he would have a ready-made support base that would make re-integrating relatively easy on return, and he could take up his previous position as a [specified occupation] given he is experienced in it. He has also not indicated that any of the health conditions that he claims to have could not be treated in Iraq or that any medications he requires could not be obtained there.
CONCLUDING PARAGRAPHS
108. 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
109. 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.

[2020] AATA 2370

6 May 2020

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

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