1914576 (Refugee)

[2020] AATA 1440

1914576 (Refugee) [2020] AATA 1440 (27 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1914576

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Shahyar Roushan

DATE:27 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 27 April 2020 at 4:36pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – Federal Circuit Court remittal – religion – minority Sunni Muslim – attacks and threats by Shia militia – incorrect information in visa application – fear of harm – voluntary returns and extended stays to help family – possession of valid passport – date of first departure – two brothers with protection visas on account of one brother’s occupation – father killed by militia – no harm to remaining brother – physical and mental health – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1) 424AA
Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(c)

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
McDonald v D-G of Social Security (1984) 1 FCR 354
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Sullivan v CASA (2014) 226 FCR 555
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
Zhao v MIMA [2000] FCA 1235

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

   Background

2. The applicant is a [Age]-year-old national of Iraq. He arrived on Christmas Island [in] April 2012 as an irregular Maritime Arrival (IMA). On 4 August 2012, the Minister for Immigration exercised his power under s.46A (2) of the Act to allow him to lodge a Protection visa application. He lodged the application on the same date. He was granted a Protection visa on 14 January 2013.

3. On 30 April 2018, a delegate of the Minister cancelled the Protection visa under s 109 of the Act, on the basis that the applicant had provided incorrect information with his application for a Protection visa.

4. The applicant applied for a review of the delegate’s decision. On 21 November 2018, a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision to cancel the applicant’s Protection visa.

5. The applicant appealed the decision to the Federal Circuit Court of Australia. [In] June 2019, the Court remitted the matter to the Tribunal by consent to be determined according to law. The matter is now before the currently constituted Tribunal (the Tribunal) for reconsideration.

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

   Protection visa application

7. In his Protection visa application Form 866C, in response to questions 42-48, the applicant referred to an attached statutory declaration, dated 4 August 2012. In his statutory declaration the applicant stated the following:

   ….

   1.I am a [Age]-year-old male citizen of Iraq born in [Village], Thi Qar, Iraq. My exact date of birth is [Date].

   2.       I am of Arabic descent and a Sunni Muslim.

   COUNTRY TO WHICH I DO NOT WANT TO RETURN

   3.        I am afraid to return to Iraq

   WHY I LEFT THAT COUNTRY, INCLUDING DETAILS OF PRIOR HARM

   4.       My family are Sunni Muslims and since the fall of Saddam Hussein in 2003, our family and other Sunni Muslims became the target of sectarian violence.

   5.       The Jaish al-Mahdi ("Mahdi Army") was targeting Sunni Muslims. In my village of [Village], Sunni Muslims were a minority, so we were easy targets. Often we would be stopped on the streets and interrogated by Mahdi Army members. Some Sunni Muslims were shot dead by the Mahdi Army. Eventually, [two of my] sons were stopped from going to their government school and they have not been able to return to school since.

   6.       In around October 2011, I was at home in Thi Qar when a group of known Shia extremists stormed in. They detained me and took me by car to their headquarters. I was detained for around two months. For five days out of the two months I was there, they had me hanging from a ceiling fan so they could beat me. The experience was one I will never forget. It was torturous. The whole time they had me detained, they were threatening me to convert to Shia. They said if I agreed to convert to Shia, they would let me go. Eventually, I told them what they wanted to hear, and they let me go with a warning that if I did not convert to Shia and start praying with them at the mosque, they would target me again and kill me.

   7.       After they let me go, I returned home to my family. We were now too afraid to continue practising as Sunni Muslims. We stopped going to the mosque to pray and tried to keep a low profile.

   8.       [In] January 2012, there was an explosion at the [Village] checkpoint which killed approximately [Number] Shia Muslims who were on a pilgrimage. The Shia Muslim community accused us Sunni Muslims of staging the attack. After that, the violence against the Sunni Muslim population in and around [Village] got much worse. The Mahdi Army began targeting the minority Sunni Muslim population one-by-one. I feared I would be next. This was confirmed when the Shia extremists, who had already detained me once before, came looking for me at the family home. By this time, I had already gone into hiding at a friend's house. I was so scared of being killed that I did not risk going back home after hearing news of the explosion.

   9.       Whilst in hiding at my friend's house, I made arrangements for my departure out of Iraq. I did not return to work. I stayed at my friend's house, only leaving if it was completely necessary.

   10.      I made arrangements with a smuggler, and [in] March 2012 I departed Iraq using a fraudulent passport. I flew to [Country 1] via [Country 2]. After staying in [Country 1], I travelled to [Country 3] [in] March 2012. I tried making contact with the UNHCR office in [Country 3] but was unable to. [In] March 2012, I left [Country] for Australia.

   11.      Around three days ago, I was in contact with my wife by telephone and she told me that members of the Mahdi Army had been asking around about me. If they find me, I am afraid to think what they will do to me.

   WHAT I FEAR MAY HAPPEN IF I RETURN TO THAT COUNTRY

   12.      If I were forced to return to Iraq, I would be targeted, harmed or killed.

   WHO I THINK WILL HARM / MISTREAT ME IF I WAS FORCED TO RETURN TO THAT COUNTRY?

   13.      If I were forced to return to Iraq, I would be harmed / mistreated by Shia extremists, anti-occupation insurgents and the Mahdi Army.

   WHY I THINK I WILL BE HARMED / MISTREATED IF I RETURN TO THAT COUNTRY

   14.      I fear that as a Sunni Muslim, I will be harmed or killed by Shia Muslim insurgents and extremists. They have harmed or killed the few remaining Sunni Muslims in my village and I fear I will be killed too.

   WHY I THINK THE COUNTRY'S AUTHORITIES WILL NOT PROTECT ME IF I AM FORCED TO GO BACK TO THERE

   15.      I fear the authorities - they will not protect me. The national police force is largely infiltrated by Shia Muslims and the Mahdi Army has been involved in sectarian violence. I cannot seek their protection.

8. In addition, the applicant provided the following responses to questions 4, 29, 50, 53 and 56 in the Form:

   Question 4: What other names have you been known by?

   N/A

   Question 29: Details of your current travel document? 

   N/A

   Question 50: When did you leave your home country?

   [March] 2012

   Question 53: Did you have difficulties obtaining a travel document (such as a passport) in your home country?

   Passport obtained illegally through smuggler.

   Question 56: Is your travel document valid for return to your home country?

   No, taken by smuggler.

9. On 14 August 2012, the applicant attended an interview in connection with his Protection visa application and provided oral evidence to a delegate of the Minister. The interview was conducted with the assistance of an interpreter in the Arabic language.

   The cancellation

   The notice

10. On 12 October 2016 the applicant was issued with a Notice to Consider Cancellation (NOICC) of the protection visa, on the basis of non-compliance with s.101(b) of the Act. The NOICC stated that the applicant provided incorrect answers to questions 4, 29, 42-48, 50, 53, and 56 of Form 866C, and reproduced his responses to these questions.

11. The NOICC stated:

    Subsequent to the grant of your Protection visa, departmental records show that you have made several trips back to Iraq, spending significant periods of time there. The first trip was within five months of grant of your protection visa whereby you remained in Iraq for eleven months. Departmental records show that you departed Australia [in] June 2013 and returned [in] May 2014. You subsequently departed Australia [in] March 2015 and returned [in] April 2015. You further departed Australia [in] February 2016 and returned [in] May 2016. In your incoming passenger card for these travel dates you declared that you spent most of your time abroad in Iraq.

    [In] April 2015 upon your return from overseas you declared in your incoming passenger card that you had travelled to Basra. The Border Entry officer at Sydney Kings ford Smith International Airport found that you had in your possession an passport number [Number] issued to you in the name of [Alias – variation of Name 1] (dob:[Date]) [in] 2011 in Thi Qar, Iraq and which is valid to [2019]. The passport entry and exit stamps indicate that you entered Basra International Airport [in] March 2015 and departed [in] April 2015. These dates are consistent with Department records which indicate that you departed Australia [in] March 2015 and returned [in] April 2015. You advised the Border Entry Officer that you had travelled to Iraq to spend time with your wife and children. You travelled out of Australia on your Australian issued 'Titre de Voyage' travel document to [Country 2] and entered and departed Iraq with your Iraqi passport.

    In this document, there are also date stamps which indicate that you departed Basra International Airport [in] January 2012 and entered [Country 1] International Airport [the next day]. These dates suggest that you departed Iraq as the holder of this passport on your initial travel to Australia and not as the holder of a false passport as declared in your Protection visa application.

    In your most recent travel overseas when you departed Australia [in] February 2016 and retuned [in] May 2016, your travel itinerary was sighted by an Australian Border Force Officer at Sydney Kingsford Smith International Airport which indicates that you were again travelling to Basra, Iraq and you stated that you were going to visit your sick son.

12. The NOICC put to the applicant that his claims that he would be harmed or mistreated by Shi'a extremists, anti-occupation insurgents and the Mahdi Army are incorrect as he voluntarily returned to Iraq on three separate occasions, spending a total of 476 days in that country. It was put to him that he had provided incorrect information in response to questions 45-48 of the Form.

13. The NOICC further stated that the Iraqi passport found in the applicant’s possession upon his return from Iraq [in] April 2015 and the information contained in the passport indicate that he departed Iraq on his initial travel to Australia as the holder of an Iraqi passport, and not as the holder of a false passport. In addition, the date stamps indicated that he departed Basra International Airport [in] January 2012 and not [in] March 2012 as claimed. The applicant, therefore, had provided incorrect answers to questions 29, 50, 53, and 56 in his Form 866C.

14. Moreover, the applicant had provided an incorrect answer to question 4 of the Form by indicating that he had not been known by any other name. However, in the course of a FOI request to the Department on 12 September 2014, he provided a copy of his Iraqi passport bearing [Name 1].

    The applicant’s response

15. On 29 October 2016, the applicant’s representative responded to the NOICC and provided the following information:

16. The applicant went to Iraq in June 2013, arriving in Basra airport. The purpose of his trip to Iraq was to help his family move from a Shi'a dominated area to [Town], a Sunni area located south of Anbar Province, after they received threatening letters asking them to evict their house [in] Nasiriyah Province. The applicant spent eleven months in [Town], where he lived in a house owned by his friend. His friend helped his family to settle in the area. After ensuring his family were ‘away from the hostile activities in the south of Iraq’, he returned to Australia. In June 2014, his family were forced to move back to [Nasiriyah] after ISIS advances and Anbar province becoming a ‘hot spot’ for the movements of the Iraqi army on their way to fight ISIS.   

17. The applicant travelled to Iraq again in March 2015 after his wife told him over the phone that Shi'a militias in the area were kidnapping the children of Sunnis who refuse to evacuate their houses. The applicant met his family in Basra Province and then moved them to the [east] of Muthana Province. He and his family lived in a house that was illegally built in the outskirts of Samawah, a remote area with harsh living conditions.

18. The applicant travelled to Iraq on the third occasion due to his family being evicted by the local council, the local government and some militia members who had infiltrated the local administration in Samawah. They were asked to leave because they are Sunnis and not welcome in the South. The applicant’s son was also extremely sick at that time. The applicant moved his family to Zubair in Basra and stayed with them even though Zubair is not a safe place for Sunnis. The applicant’s trips to Iraq were for very compelling reasons relating to his family and he continues to be at risk of harm if he were to return to Iraq. 

19. When he was departing Iraq from Basra airport, the airport staff were screaming at foreign passport holders and accusing them of not being loyal to Iraq. The applicant used his Iraqi passport instead of the Australian titre de voyage because he was afraid that he would be harmed by Shi'as at the airport. The applicant ‘lied’ to the Department in his protection visa application by claiming that he used a fraudulent passport to exit Iraq. He was afraid that his visa would be refused because he was told by other people in the detention centre that refugees who have exited their countries using legitimate passports have been returned to their country. He did not provide incorrect information elsewhere in his application for a protection visa.

20. In relation to his name, the applicant used [Surname 1] as a surname. This is a tribal name and is not recorded on his Iraqi national ID card. It was submitted that many people in Iraq use their grandfather’s name instead of their surname. The applicant used the surname ‘[Surname 1]’ on his passport because the law in Iraq changed over time and the Iraqi passport directorate currently uses a person’s grandfather’s name as a surname. The applicant later changed his name to [Name 2] and applied for a new passport using the new name.

21. The response stated that the applicant developed [condition] in Australia due to his fear for his family in Iraq and was hospitalised on Christmas Island. He fears for his own safety in Iraq and only returned due to very exceptional circumstances. His family are persecuted because of their Sunni faith and he has siblings in Australia who applied for protection.

22. The following documents were submitted in support of the response:

    ·Copy of a Change of Name Certificate issued by the New South Wales Births, Deaths, and Marriages Registry, indicating that the applicant changed his name from [Name 1] to [Name 2] [in] August 2016.

    ·Copy of the applicant’s Australian Titre de Voyage ([Number 1]), issued [in] August 2016 in the name of [Name 2].

    ·Copy of the applicant’s Australian Titre de Voyage ([Number 2]) issued [in] November 2014 in the name of [Name 1], with entry and exit stamps.

    ·Copy of an Iraqi passport ([Number]) in the name of [Name 1], featuring entry and exit stamps, issued [in] 2011 and expired [in] 2019.

    ·Copy and translation of an Iraqi National Identification card in the name of [Name 1].

23. On 14 November 2016, the applicant’s representative submitted the following additional documents to the Department:

    ·Copy and translation of an Iraqi Citizenship certificate in the name of [Name 1].

    ·Letter from [Dr A], [Consultant], dated [September] 2015. [Dr A] stated in his letter:

    l have seen him a number of times previously. He complains of [deleted]. On listening to the details of these events, my impression is that these may be [deleted]… I have not been able to help him. On numerous occasions, I have organised for him to have a [test] at [Suburb] Hospital but for reasons that are not clear to me he never ends up having the tests done. In the past while he stated that he was taking [medication], the [deleted] level was essentially zero. I suspect his main problem may relate to mental health. Please refer him to a psychiatrist of your choice…

    ·Medical reports, dated [June] 2016 and [June] 2015, issued by the applicant’s GP, listing a number of medical condition, including ‘[injury]’, [deleted] and social anxiety, and the medication prescribed to him.

    ITOA

24. The Department conducted an International Treaties Obligations Assessment (ITOA) in relation to the applicant. On 12 April 2018, the delegate found that Australia does not owe him non-refoulement obligations.

    The delegate’s decision

25. On 30 April 2018, a delegate of the Minister, after considering the prescribed circumstances, decided to cancel the applicant’s visa on the basis that he had provided incorrect information in connection with his application for a protection visa on the basis of his travels to Iraq and incorrect answers to questions 4, 29, 53 and 56 of his Form 866C.

    Application for review

26. The applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. He was represented in relation to the review by his registered migration agent, [Mr B]. A copy of the delegate’s decision record was provided to the Tribunal for the purposes of the review.

    The first Tribunal

27. On 8 October 2019, in the context of a hearing postponement request, the applicant’s representative submitted a number of medical reports in relation to the applicant, including:

    ·Letter from [Dr C], Occupational Therapist and Mental Health Clinician, dated [October] 2018, stating that the applicant has been receiving ‘supportive counselling’ since June 2015 and will continue to receive counselling for chronic depression. He also has neck and back pain and [deleted] as a result of [an] injury. [Dr C] stated that the applicant has been having ‘low mood following a separation from his family.’

    ·Letter from [Dr D], GP, stated [October] 2018, listing the applicant’s medical conditions, including [deleted], major depression, and ‘sleep problems.’

    ·Copies of hospital records, indicating that the applicant was admitted to [Suburb] Hospital in November 2017 and subsequently referred to a Community Mental Health Service. The records also indicate that, [in] January 2018, the applicant was reviewed by a Psychiatrist, who formed the impression that the applicant had adjustment disorder with depressed mood in the context of a number of psychosocial stressors. It was noted that ‘separation from his family appears the most prominent factor.’

1. The applicant appeared before the first Tribunal on 22 October 2018 (the first hearing) and provided oral evidence with the assistance of an interpreter in the Arabic language. [Mr B] was present at the hearing.

2. ­­On 29 October 2018, [Mr B] provided a submission to the first Tribunal. In his submission, [Mr B] conceded that the applicant had given incorrect information in relation to the date of his departure from Iraq and the use of his Iraqi passport. He reiterated that the reason the applicant had claimed to have used a fraudulent passport was because he had heard from others that the Australian government will return those travelling with a valid passport to their country of nationality. It was submitted that the delegate had made an error in suggesting that the applicant had departed Iraq on the same day as the explosion referred to in the applicant’s claims for protection, as the bombing had occurred [in] January 2012.

3. [Mr B] submitted that information given by the applicant in relation to his name was not incorrect.  In response to question 2 in Form 866C, the applicant wrote down [Name 1] in Arabic script and attached copies of identity documents issued in relation to him, his wife and their children, which do not mention the name [Surname 1].

4. [Mr B] stated that the applicant’s return to his home country on three occasions does not mean that he had given incorrect information in relation to his claims for protection. The applicant had travelled to Iraq for ‘very compelling reasons’ and he spent his time in Iraq in hiding and away from his hometown.

5. [Mr B] reiterated the explanation previously provided in relation to the applicant’s return trips to Iraq. He added that the applicant had entered Iraq through Basra airport as he has a problem with the ‘Jiash Al Mahdi’ Shi'a militia group and not with the government of Iraq. He also noted that the applicant’s father was killed by the Shi'a militias and the manner of his death may have been misunderstood by the authorities at the airport. This was a reference to information in the Department’s file, indicating that the applicant was interviewed at the airport when he re-entered Australia [in] May 2014 and told ABF officers that ‘he went to Iraq because his father was unwell and passed away.’ [Mr B] stated that the death of his father and the fact that his brothers, [Mr E] and [Mr F], are refugees in Australia should be taken into consideration.

6. [Mr B] submitted that the particulars the Department relied on in the NOICC are incorrect and, therefore, the notice is invalid. The NOICC failed to sufficiently particularise the incorrect information.  In addition, the delegate did not comment on or properly examine the applicant’s response to the NOICC as to why he had travelled to Iraq. [Mr B] also took issue with the ITOA, stating that there were errors in the assessment, upon which the cancellation of the applicant’s visa was based.

7. In his submission, [Mr B] referred to news articles and other reports, including a 2014 Washington Post report in relation to Sunnis fleeing Anbar, a 2008 report published in The Guardian in relation to violence and lawlessness in Basra at that time and a 2016 UK Home Office Country Information and Guidance report in relation to Sunnis in Iraq.

8. On 21 November 2018, the first Tribunal affirmed the delegate’s decision to cancel the applicant’s Protection visa.

   The Federal Circuit Court

9. The applicant sought judicial review of the first Tribunal's decisions and, [in] June 2019, the Federal Circuit Court remitted the matter to the Tribunal by consent on the basis that the decision of the Tribunal is affected by jurisdictional error in that the Tribunal failed to consider the applicant’s claim that he had two brothers in Australia who were refugees in considering the exercise of its discretion whether to cancel the applicant's visa.

   The present Tribunal

10. On 4 November 2019, the Tribunal wrote to the applicant under s.424 of the Act, inviting him to provide in writing a list of his immediate family members, including spouse, children, parents and all siblings.

11. On 14 November 2019, the applicant responded to the Tribunal's letter with the information requested. He also provided to the Tribunal copies of Visa Grant Notices in relation to his brothers [Mr F] and [Mr E]. The notices indicate that the former was granted a Temporary Protection (subclass 785) visa on 15 January 2019 and the latter was granted a Safe Haven Enterprise (subclass 790) visa on 8 May 2017.

12. In a subsequent email, the applicant advised that his brother [Mr G] is an Australian citizen, having arrived in Australia by boat in 1999.

    The hearing

13. The applicant appeared before the Tribunal on 18 December 2019 to give evidence and present arguments (the second hearing). The hearing was conducted with the assistance of an interpreter in the Arabic and English languages. Where relevant, the applicant’s evidence at the second hearing is referred to in the Tribunal's reasons below.

    Information provided following the hearing

14. On 17 January 2020, [Mr B] provided a submission in relation to the matters discussed with the applicant at the hearing.

15. In his submission, [Mr B] stated that the applicant ‘confirms that he provided an incorrect information in relation to the date of his travel from Iraq, and the manner he used to exit Iraq’. He stated, however, that the applicant also ‘confirms’ that his house was raided by the Shi'a militias who perceived Sunnis to be involved in the explosion that occurred [in] January 2012.

16. It was submitted that the fact that the applicant provided incorrect information to the Department does not mean ‘that his whole profile is fabricated or untrue, he maintains that his fears pushed him to lie in this regard’.  He also maintains that he did not provide different reasons for his trips to Iraq when interviewed at the airport. It was submitted that the airport interview was very short and took place without the presence of an interpreter. The Departmental records do not accurately reflect what he said to the ABF officers and the fact that he provided more than one reason for his travel to Iraq ‘is normal because that is what happened in his life.’ The applicant has poor English language skills and it would not be reasonable to expect him to detail all his reasons for going to Iraq.

17. It was submitted that there was an error in the letter that was issued to him by the medical staff at the hospital due to the fact that, at that time, his brothers were already in Australia and his father had already been killed by the militias.

18. It was submitted that the information the applicant provided to the Tribunal about his family movements in Iraq was correct, and that the information that he provided in his response to the NOICC ‘lacked the required details because he was in a bad mental condition and was shocked to know that his visa is to be cancelled at that time.’

19. It was submitted that the applicant’s life is at risk now or in the reasonably foreseeable future due to a combination of a number of factors, including being a Sunni male from the south of Iraq and being the brother of a person or persons who were targeted by Shi'a militias in the south. It was submitted that the murder of the applicant’s father reflects the danger faced by him and his brothers in the south of Iraq.

20. The activities of the applicant’s brother, [Mr F], did not only impact [Mr F], but also their brother [Mr E], who was threatened, and their father, who was killed. It is possible that the Shi'a militia members who were arrested by [Mr F] and subsequently imprisoned may be released in the near future and target the applicant if he were to return to Iraq. Both [Mr F] and [Mr E] had provided statements to the Department and [Mr E] was identified as being at risk solely due to being a brother of [Mr F]. It was submitted that the applicant’s brother, [Mr H], who continues to reside in Iraq, is a disabled person and ‘is known to having no links with his brothers,’ while the other brothers are all in Australia. The fact that three members of the same family were targeted by Shi'a militias means that the family is considered to be of adverse interest to the Shi'a militias in the south.

21. It was submitted that the cumulative effect of the persecution that the applicant and his family members experienced in Iraq means that there is real risk that he will be harmed if he were to return to Iraq. It was submitted that the incident involving his brothers, [Mr F] and [Mr E], occurred subsequent to the applicant’s departure from Iraq, ‘which means that the risk against the applicant is even bigger in its level than when it was at the time of the applicant’s real date of departure from Iraq.’

22. Finally, referring to clashes between security forces and protesters, it was submitted that the applicant would be unable to relocate to any other part of Iraq, as his home province of Dhi qar ‘is engulfed in turmoil.’

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

23. 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.

24. 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.

25. 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.

26. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[1] Whilst a visa holder, whose visa is being considered for cancellation, must be invited to show that the ground for cancellation does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA, the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[2]

    [1] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.

    [2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

27. While that case was concerned with cancellation under s.119 of the Act, the Court’s comments would be equally applicable to s.109.

28. In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences to a party, the Tribunal is free to consider the evidence and other materials before it.[3] In that case, Flick and Perry JJ said that:

    The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[4]

    [3] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

    [4] At [120].

29. The Tribunal is not bound to apply the principle in Briginshaw v Briginshaw that the strength of evidence necessary to make a finding may be greater if the consequences of that finding are serious, but it is not prohibited from applying it if it sees fit.[5] The Court noted that s.33(1)(c) of the Administrative Appeals Tribunal Act 1975, which provided that the Tribunal is not ‘bound’ to apply rules of evidence, was not a prohibition upon the Tribunal applying those rules. It said that imposing a requirement for the Tribunal to apply the rule in Briginshaw in making its factual findings, would be an unnecessary constraint upon the freedom of the Tribunal to employ such procedures as it sees fit in undertaking its fact-finding role.[6]

    [5] Ibid, at [121]. Flick and Perry JJ referred to Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362, ‘… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…’.

    [6] Ibid, at [122].

30. 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.

31. For the reasons outlined below, the Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice.

    The applicant’s passport

32. As it was put to the applicant in the NOICC, upon his return to Australia from Iraq [in] April 2015, he was found to be in possession of a genuine Iraqi passport (number [Number]). The passport was issued [in] 2011 in Thi Qar, Iraq and had an expiry date of [2019]. The entry and exit stamps on the applicant’s passport indicated that he departed Iraq on his initial travel to Australia as the holder of the same passport and not as the holder of a false passport ‘obtained illegally through a smuggler’ as he had claimed in his protection visa application and the accompanying statutory declaration. In addition, the stamps on the same passport indicated that the applicant departed Iraq, through Basra International Airport, [in] January 2012 and not [in] March 2012 as claimed in his protection visa application and the accompanying statutory declaration.

33. In his response to the NOICC, the applicant’s representative acknowledged that the applicant had ‘lied’ in his protection visa application by claiming that he used a fraudulent passport to exit Iraq. It was stated that the applicant had lied about the existence of his passport because he had been told by others that refugees who have exited their countries using legitimate passports would be returned. It was also stated that the applicant did not provide incorrect information elsewhere in his application for a protection visa. At the second hearing the applicant acknowledged that he had departed Iraq using his own passport and that the information provided in his protection visa application that he had used a fraudulent passport to depart Iraq was incorrect. In his post hearing submission, [Mr B] also confirmed that the applicant had provided incorrect information to the Department ‘in relation to the date of his travel from Iraq, and the manner he used to exit Iraq’. Nevertheless, it was submitted that the applicant also ‘confirms’ that his house was raided by the Shi'a militias who perceived Sunnis to be involved in the explosion that occurred [in] January 2012.

34. In view of the applicant’s own evidence and acknowledgments, the Tribunal is satisfied that the applicant had provided incorrect information in his application for a protection visa in response to Questions 50, 53 and 56. For the following reasons, however, the Tribunal is of the view that the incorrect information provided by the applicant in his protection visa application and the accompanying statutory declaration was not confined to his answers to the three questions referred to.

35. The applicant’s acknowledgment or confirmation of the fact that he had departed Iraq [in] January 2012 and not [in] March 2012, necessarily entails the conclusion that, following the explosion in January 2012, he did not go into ‘hiding at a friend’s house’ until his falsely claimed date of departure [in] March 2012. This information is also incorrect and clearly manufactured by the applicant. This casts doubt in relation to other claims made by the applicant concerning this incident and its aftermath.

36. In the statutory declaration accompanying his protection visa application, the applicant had stated that there was an explosion at the [Village] checkpoint [in] January 2012, killing [a number of] of Shi’as. This incident was blamed on Sunnis, who were targeted by the Mahdi Army. Subsequently Shi'a extremists, who had already detained him on a previous occasion, came looking for him at the family home, but he had already ‘gone into hiding at a friend's house’. These claims, however, differed significantly from the applicant’s claims as narrated or rendered at other stages throughout the process. 

37. On 24 April 2012, the applicant attended an Irregular Maritime Arrival Entry Interview (the entry interview). At that interview, he stated that there was an explosion in [Village] [in] January 2012. As a result, his house was ‘raided’, but he ‘managed to hide behind ‘the hut’ for about 5 days’. He then left for Basra and departed Iraq [in] March 2012.

38. Following the lodgement of his protection visa application, the applicant was interviewed by a delegate of the Minister on 12 August 2012 in connection with his application. At that interview, he told the delegate ‘the second day of the explosion’ they went to his house and searched it, but he was able to hide by wrapping himself in something like a rug and they could not see him. He then fled to his friend’s house. He said he was not specifically targeted, and all Sunnis were targets.

39. At the first Tribunal hearing, the applicant stated that the explosion happened [in] January 2012 and at that time he was at home in [Location], about [number]km away from the location of the incident. He told the first Tribunal ‘I left Iraq [in] January and the explosion happened [in] January and I left home [in] January [and] I went to al-Basra.’  He did not expressly claim that his house was raided or that he had to hide. However, in his statutory declaration of 10 December 2019, the applicant reiterated that after the [January] 2012 bombing, the militia raided his house looking for him.

40. The above information was put to the applicant at the second hearing under s.424AA of the Act. The Tribunal explained the relevance of the information and sought his comments or response. The applicant stated that the explosion occurred [in] January 2012. A neighbour told him that they were coming for him because he is a Sunni. He denied having told the delegate that he had wrapped himself in a rug, stating that it was misinterpretation. The applicant, however, did not provide any explanation in relation to the shifts and changes in his evidence regarding the immediate aftermath of the bombing at other stages of the process. These inconsistencies raise significant concerns in relation to the applicant’s credibility and cast serious doubt on the reliability of his evidence regarding his experiences in Iraq. They also demonstrate the applicant’s preparedness to tailor and shift evidence in a manner that achieves his own purpose.

1. In his response to the NOICC, the applicant’s representative contended that the delegate had made an error in suggesting that the applicant departed Iraq on the same day as the explosion, as the bombing had occurred [in] January 2012. Whilst the Tribunal accepts that the explosion had occurred [in] January 2012, it was the applicant who had stated in his protection visa application that the explosion had occurred on [another date in] January 2012. When at the second hearing he was asked why he had done so, he claimed that ‘they’ wrote [date] January, but this was not the date he had given. In any event, even if the Tribunal were to accept this explanation, it does not remedy the significant problems identified in his evidence regarding the bombing’s aftermath. Moreover, the applicant’s evidence clearly suggests that he had departed Iraq in January 2012 as a consequence of the [January] 2012 incident. He told the Tribunal at the second hearing that he departed Iraq on the day after the bombing by flying to [Country 1] where he was met by an acquaintance before travelling to [Country 3] and subsequently to Australia. He said his flight out of Basra was booked by a friend. As it was put to the applicant, the Tribunal finds it highly implausible and difficult to believe that he had managed to find a seat on a flight, purchase tickets and make other related arrangements to leave Iraq within a 24-hour period. The Tribunal does not accept the applicant’s account and is of the view that the arrangements he had made to depart Iraq were unrelated to the incident in [January 2012. In reaching this view, the Tribunal has taken into account the applicant’s own acknowledgment that he had ‘lied’ or had provided false information regarding his passport and manner of departure from Iraq.

2. For the above reasons, the Tribunal does not accept that, following the explosion [in] January, the applicant’s house was raided by Shi’a militias or the Mahdi Army or that anyone went to his house looking for him. The Tribunal does not accept that he had to hide himself inside his house or went into hiding elsewhere. Therefore, the Tribunal finds that the applicant’s claims in the statutory declaration accompanying his protection visa application that, following the bombing in January 2012, Shi'a extremists who had previously detained him went looking for him at his home, that he went into hiding at a friend's house and that he made arrangements for his departure out of Iraq whilst hiding at his friend's house are fabricated and incorrect.

   The applicant’s return trips to Iraq

3. The Tribunal appreciates that, broadly, an applicant’s act of returning to the country where they claim to fear being persecuted may raise questions in relation to his or her subjective fear of harm and the credibility of their claims for protection. However, the mere fact of return is not necessarily inconsistent with the claimed fear. The individual circumstances of the case and the precise claims which were made must be carefully examined. In this case, for the following reasons, the Tribunal considers the applicant’s return trips to Iraq to also support the conclusion that he had provided incorrect information in his protection visa application.

4. In the statutory declaration accompanying his protection visa application, the applicant stated that, if he were forced to return to Iraq, he would be targeted, harmed or killed by Shi'a extremists, anti-occupation insurgents and the Mahdi Army because of his Sunni faith. Nevertheless, [in] June 2013, approximately six months after he was granted a protection visa, the applicant returned to Iraq, where he remained until [May] 2014. In his response to the NOICC, the applicant essentially stated that he returned to Iraq to help his family move to [Town] in the southern part of Anbar province due to safety concerns. At the first hearing, he told the previous Tribunal that, as a woman, his wife could not do the move on her own and his son was also ill. At the second hearing, he repeated that he had travelled to Iraq to help his family move. He also told the Tribunal that, following the move, he resided at a single address with his family during his 11 months stay in Iraq. When asked if he wanted to help his family move why he had stayed for 11 months, he said he wanted to ensure his family were safe and he also had a sick child. When pressed as to why it was necessary for him to stay for such a lengthy period if he was fearful of Shi’as, he said there is no safe place in Iraq, and he could not leave his sick child. The Tribunal did not find the applicant’s explanation as to why it was necessary for him to put his own life at risk by returning to Iraq to assist his family to move to another location persuasive. Nor did the Tribunal find his explanation as to why it was essential for him to remain in Iraq for 11 months after the move was completed to be persuasive. Indeed, according to his response to the NOICC and the evidence subsequently given, in June 2014 and a month after the applicant came back to Australia, his family moved back to Nasiryah on their own and in his absence. The applicant did not claim that anyone else had assisted his wife in this move. The Tribunal is not persuaded by his claim that he had a sick child and he could not leave him. In view of the nature of the applicant’s claims and the effort he had put into departing Iraq in the first place to seek protection in Australia, the Tribunal does not consider the reasons he has provided for returning to Iraq and the length of his stay in that country to be convincing, let alone compelling. 

5. Moreover, according the Department’s file relating to the cancellation decision, when the applicant arrived back in Australia [in] May 2014, he was questioned at the airport. In his responses, he had stated that he had travelled to Iraq because his father was unwell and has passed away. This information was put to the applicant at the second hearing under s.424AA of the Act. He responded by stating that, at the airport, they held him and talked to him for a couple of hours. He cannot read and did not know how to speak to them because it did not occur to him that those questioning him were ‘immigration people.’ They asked him why he was in Iraq and he said because his wife was ill. If he knew they were immigration officers, he would have told them the truth. He was also confused and thinking about his family. Later in the course of the hearing and in response to questions relating to his failure to disclose information about the death of his father earlier in the process, he stated that, when he was questioned, he told the officers at the airport that he had travelled to Iraq because his wife was sick. When they pressed him, he told them his father was ill and had passed away. He could not express to them how he felt, and he thought to himself that there was no reason to disclose how his father was killed because he did not want it to be a ‘stigma’. The applicant stated at the first hearing that, when he had told the Department that his wife was not well, he ‘did not lie’. He said she has asthma, diabetes and high blood pressure ‘but I wanted to go for my son.’ At the second hearing, he did not claim that his wife was sick prior to or during his first return trip to Iraq. The Tribunal considers the applicant’s evidence and explanations highly problematic. His evidence suggests that he had deliberately provided incorrect information in response to questions he was asked at the airport regarding the purpose of his trip to Iraq. This casts doubt on the truth and reliability of the applicant’s evidence regarding the purpose of his return trip to Iraq.

6. The applicant again returned to Iraq in March 2015, staying for approximately five weeks. In his response to the NOICC, he stated that he had travelled to Iraq because his wife told him over the phone that the Shia militia in the area are kidnapping the children of Sunnis who refuse to evict their houses. He stated that during this trip, he helped his family move to a different location. At the second hearing, he told the Tribunal that he returned to Iraq because he was worried for his family’s safety. When asked whether he was concerned for his own safety, he said he was, but he could not leave this family living in fear. Whilst the Tribunal appreciates the applicant’s concerns for his family’s safety or well-being, his evidence does not satisfactorily explain why it was necessary for him to put his own life at risk, after having left Iraq in the first place to seek protection, to return to that country due to safety concerns raised by his wife.

7. The applicant travelled to Iraq for a third time [in] February 2016 and remained for approximately 14 weeks. In the response to the NOICC, it was stated that the applicant had to return to Iraq because his family were evicted from their house by the local authorities because of their Sunni faith. The applicant’s son was also very sick at that time. He moved his family to Zubair in Basra and stayed with them throughout his stay. However, no medical evidence to support the claim that the applicant’s son was sick was submitted. In his subsequent evidence and submissions, the applicant maintained that the purpose of his third trip to Iraq was to help his family move to a different location. At the second hearing, when asked why he had travelled to Iraq in in February 2016, he said he was told to go because he had to move his family. When asked why it was necessary for him to remain in the Basra Governorate for some 14 weeks, he said he moved his family, settled them and had to ensure their safety. The Tribunal did not find the applicant’s explanations persuasive. Given that the applicant claims to have departed Iraq on his own due to fears for his own safety, it is difficult to understand how putting his life at risk by returning to Iraq would have ensured the safety of his family during the course of his stay. As noted earlier, the applicant’s family had previously relocated in 2014 in his absence. He did not offer any other explanation as to why the move in 2016 necessitated his travel to and presence in Iraq for a period over three months.

8. In the response to the NOICC and in submissions made to the first Tribunal it was stated that the applicant had travelled to Iraq for very compelling reasons relating to his family. In his statutory declaration, the applicant, as a Sunni, claimed to fear Shi’a militias, Shi’a extremists and the Mahdi Army in Southern Iraq. Whilst the Tribunal accepts that the applicant had resided at different locations during his stays in Iraq, the Tribunal is not persuaded that the circumstances the applicant claims necessitated his travels to Iraq were so compelling that he had no choice but to return to Iraq and spend significant periods of time in Southern Iraq, albeit not at his hometown. The Tribunal considers the applicant’s decision to return to Iraq under the circumstances described to be inconsistent with his claims to fear harm in Iraq.

9. The Tribunal accepts that the applicant had felt a desire to see members of his family due to concerns for their safety or their health. However, the Tribunal does not accept that the circumstances described, or the reasons provided by the applicant for his return trips were so compelling that he had no choice but to return to Iraq on three separate occasions. The Tribunal finds the applicant’s explanations regarding his return trips to Iraq to be highly unpersuasive and disingenuous. The applicant returned to Iraq [in] June 2013, about six months after being granted a protection visa, and remained in the country, albeit at a location different to where he previously resided, for a period of 11 months. He travelled to Iraq again on two occasions, remaining for approximately five and 14 weeks respectively. In the present case, the Tribunal considers the fact that the applicant returned to Iraq on three separate occasions for a total period of nearly 16 months logically supports the conclusion that he did not in fact fear being harmed or killed for the reason of his Sunni faith as claimed in the statement accompanying his application for a protection visa.

10. Having carefully considered the evidence before it, the Tribunal finds the applicant not to be a credible and truthful witness. In reaching this view, the Tribunal has taken into account the applicant’s own acknowledgments that he had ‘lied’ or had provided false information to the Department regarding his passport, as well as the manner and date of his departure from Iraq. These acknowledgements necessarily and logically lead to the conclusion that other directly relevant information he had provided in his protection visa application was also false, such as being in hiding for a period of time at a friend’s house before departing Iraq. Nevertheless, the applicant was less than forthcoming in acknowledging this by insisting at the second hearing that ‘everything’ except information in relation to his passport is true. It was also stated in the response to the NOICC that the applicant did not provide incorrect information elsewhere in his application for a protection visa.

11. For the reasons set out earlier in this decision record, the Tribunal has found the applicant to have fabricated his claimed experiences in Iraq in the immediate aftermath of a bomb explosion [in] January 2012. In view of the Tribunal’s grave concerns and earlier findings regarding the credibility of the applicant’s claims, the Tribunal does not accept the other claims made in the statutory declaration accompanying his protection visa application. The Tribunal does not accept that the applicant was taken from his home by the Mahdi Army, Shi'a extremists or anyone else in October 2011, that he was detained for two months, and that he was mistreated, threatened and told to convert to Shiism. The Tribunal finds these claims to be fabricated.

12. The Tribunal is satisfied that the applicant had provided incorrect information in his application for a protection visa and the accompanying statement in relation to his experiences in Iraq, his fear of harm in Iraq, his travel document and the date of his departure from Iraq. The Tribunal has reached the necessary state of satisfaction that the applicant provided incorrect information in response to Questions 29, 42-48, 50, 53, and 56 of his application for a protection visa. 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?

13. 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 its discretion, the Tribunal has considered the applicant’s responses to the s.107 notice about the non-compliance. The Tribunal must also have regard to the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 and to the other matters required to be considered as a matter of government policy as set out below.

    The correct information

14. The Tribunal considers that the correct information is that the applicant was not taken, detained, mistreated and threated by Shi'a militias in 2011. He was not targeted, his house was not raided and he did not go into hiding at a friend’s house before he departed Iraq to come to Australia. He did not arrange to illegally obtain a false passport through a smuggler. He did not depart Iraq [in] March 2012 on a false passport which was subsequently taken by a smuggler. He did not fear harm for the reasons he provided in his protection visa application and the accompanying statutory declaration. The Tribunal gives this factor significant weight towards the visa being cancelled.

    The content of the genuine document (if any)

15. The s.107 notice did not refer to any bogus documents and the Tribunal has not identified 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

16. The Tribunal is of the view that the information provided by the applicant to the Department was central to the grant of the protection visa. The Tribunal gives this factor significant weight towards the visa being cancelled.

    The circumstances in which the non-compliance occurred

17. The non-compliance arose when the applicant provided incorrect information to the Department in connection with his protection visa application. The applicant has acknowledged that he had lied to the Department and provided incorrect information in relation his passport and the manner and date of his departure from Iraq. He has stated that he had provided this incorrect information due to his fear of being returned to Iraq. However, he has persistently maintained that he did not give any other incorrect information to the Department. The Tribunal has found otherwise. The Tribunal gives this factor significant weight towards the visa being cancelled.

    The present circumstances of the visa holder

18. The applicant has been residing in Australia for eight years. He would like his family to join him here in Australia and has concerns for their safety. The applicant has also provided evidence that he has a number of medical conditions, including [deleted], as well as past diagnosis of adjustment disorder, chronic depression and ‘low mood’.

19. The Tribunal accepts that the applicant started experiencing [medical condition] soon after he originally departed from Iraq. According to the 2015 letter from [Dr A], the applicant’s [deleted] and that ‘his main problem may relate to mental health.’ He had also noted that the applicant had never completed a [test], which was arranged for him at [Suburb] Hospital. The subsequent medical evidence provided by the applicant to the first Tribunal only referred to his [condition] in general terms. He did not submit any recent medical evidence to the present Tribunal. The applicant stated at the second hearing that he experiences [medical condition] every 15 to 20 days and the medication he is currently on has reduced the frequency of the [medical condition]. He said the [condition] causes him shortness of breath and his kidney is ‘not good’. He told the Tribunal that a further medical appointment had been scheduled for [February] 2020. Neither the applicant nor his representative submitted any other medical reports to the Tribunal. It has not been claimed, nor is there any persuasive information before the Tribunal to suggest, that the applicant will not have access to appropriate medical care or medication to manage his [medical condition] and any related conditions if his visa was cancelled and he returned to Iraq.

20. The applicant told the Tribunal at the second hearing that he continues to see to [Dr C] to check on his mental health because he gets upset and feels stressed. The Tribunal accepts that the applicant has previously been assessed to have adjustment disorder, depression, anxiety and low mood. The Tribunal notes that the applicant’s 2017 hospital records suggest that his separation from his family appears to be ‘the most prominent factor’ contributing to his adjustment disorder and depressed mood. Similarly, in his October 2018 letter, [Dr C] stated that the applicant has been ‘having low mood following a separation from his family.’ This evidence suggests that if the applicant’s visa were to be cancelled and he were to be reunited with his family in Iraq or anywhere else, a major contributor to his mental health issues may be removed.  The Tribunal has considered the fact that the applicant has travelled to Iraq on three separate occasions following the grant of his protection visa to spend time with his family. Moreover, it was not claimed, nor was there any persuasive information before the Tribunal to suggest, that the applicant will not have access to appropriate counselling and support in Iraq.

1. The Tribunal gives little weight to the present circumstances of the applicant in favour of not cancelling the visa.

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

2. As noted above, whilst the applicant has acknowledged providing certain incorrect information to the Department, he has maintained that he did not give incorrect information in relation to other information provided in connection with his application for a protection visa. The Tribunal has found this not to be the case.

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

3. On the basis of the evidence before the Tribunal, there are no other instances of non-compliance by the applicant known to the Minister. The Tribunal gives this some weight towards the visa not being cancelled.

   The time that has elapsed since the non-compliance

4. The relevant non-compliance in the present case took place when the applicant presented written and oral evidence to the Department in relation to his claims for protection in 2012, so eight years have elapsed since then. The Tribunal gives this little weight in favour of the visa not being cancelled.

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

5. On the basis of the evidence before the Tribunal, the applicant has not breached the law since the relevant non-compliance. The Tribunal gives this consideration some weight in favour of the visa not being cancelled.

   Any contribution made by the holder to the community

6. No specific information was provided in relation to any contribution made by the applicant to the community. The applicant has given evidence that he is unable to work due to the state of his health and has been financially reliant on Centrelink benefits.

   Other considerations

7. In addition to the prescribed circumstances discussed above, the decision maker should have regard to any lawful government policy. The Department’s guidelines[7] set out a number of matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s.109, including:

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation;[8] for example whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment

   [7] PAM 3 – Migration Act - Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B & s140) - s109 Deciding whether to cancel – Matters that should be taken into account (re-issue date 21/8/16).

   [8] See PAM3 - Migration Act - Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B & s140) - Australia’s international obligations (re-issue date 21/8/16) and PAM3: Act – Compliance and case resolution – Guiding principles – Treatment of children (issue date 1/1/12).

8. For the reasons outlined earlier, the Tribunal has found the applicant not to be a credible or reliable witness. As set out in detail above, the Tribunal has found that the information provided by the applicant in his application for a protection visa and the accompanying statutory declaration is incorrect. The Tribunal has rejected the applicant’s claims that he was pursued, targeted, detained, mistreated and threatened by Shi'a militia, Shi’a extremists, insurgents, the Mahdi Army or anyone else.

   Being a Sunni and civil unrest

9. The applicant has made claims to the effect that his Sunni faith would give rise to risk of harm at the hands of Shi’as. The Tribunal accepts that the applicant is a Sunni Muslim. In a June 2017 report, the UK Home Office stated that ‘a Sunni may be able to demonstrate a real risk of persecution or serious harm from a Shia militia, but this will depend on their personal profile, including their family connections, profession and origin.’[9] Other than his brother’s profile (discussed below), there was nothing about the applicant that would suggest that he would be at risk of harm from Shi’a militias or other Shi’a groups. The UK Home Office noted that reports that Sunnis experienced human rights abuses at the hands of Shia militia or unknown perpetrators in the southern governorates, ‘do not appear to form part of a consistent or systematic risk to Sunnis.’[10] The report further stated that, barring particular factors, ‘in general Sunnis in the southern governorates are not subject to treatment which would be persecutory or cause serious harm.’[11]

   [9] UK Home Office, Country Policy and Information Note, Iraq: Sunni (Arab) Muslims, June 2017.

   [10] Ibid.

   [11] Ibid.

10. In its most recent Country Information Report in relation to Iraq, DFAT assessed that,

    [O]utside areas recently controlled by ISIL, Sunnis face a low risk of societal violence on the basis of their religion. DFAT assesses that Sunnis face a moderate risk of official and societal discrimination in areas where they are a minority. The risk of discrimination varies according to an individual’s local influence and connections.[12]

    [12] DFAT, DFAT Country Information Report – Iraq, 9 October 2018.

11. In response to this country information, the applicant stated at the second hearing that Sunnis in Iraq are threatened, and most have joined ISIS. The applicant denied that the situation of Sunnis in southern Iraq is as reported.

12. In his statutory declaration of 10 December 2019, the applicant claimed that his son [was] recently arrested by the ‘counter terrorism unit’ in Nasiriyah after being accused of participating in anti-government demonstrations. The applicant stated that this was a ‘deliberate’ act, because his son never took part in these demonstrations and he was arrested because he is a Sunni. At the second hearing, the applicant told the Tribunal that his son had been released a few days earlier and repeated the claim that [his son] had been arrested because he is a Sunni. As it was put to the applicant, according to his own evidence, his son was out on the street, he was not demonstrating, and the authorities were unaware of his identity when he was asserted. The authorities did not specifically seek him out and [his son] may have just found himself at the wrong place at the wrong time. The applicant agreed but added that if they knew [he] was his son, they would never have released him. The Tribunal does not accept this claim. The Tribunal has rejected the applicant’s claims of past harm. The Tribunal has also found that the applicant had/has no profile and there is no reason why the authorities, regardless of any links to Shi'a militias, would target the applicant, his son or other members of his immediate family. The Tribunal does not accept that the applicant’s son would not have been released had the authorities identified him as being related to the applicant.

100.   The sources consulted by the Tribunal indicate that many cities in Iraq witnessed continuing mass anti-government protests since October 2019, resulting in many arrests, deaths, injuries and general lack of security.[13] The protests have been primarily led by Shi’as[14] with Arab Sunnis largely disengaged.[15] The Tribunal has found no information in any of the sources consulted to suggest that Sunnis have been targeted by the authorities in Iraq as a consequence or under the pretext of controlling these demonstrations. The Tribunal finds that the arrest and detention of the applicant’s son was a random act at a time of heightened civil unrest. The Tribunal does not accept that the applicant’s son was arrested and detained for the reason of his religion or membership of the applicant’s family.

[13] See, for example, Iraq: HRW denounces lethal force against protesters, urges probe, Al Jazeera, 11 October 2019, A bloody mess: Protests in Iraq are met with violence, The Economist, 31 October 2019, Abdul-Zahra, Qassim and Faraj, Murtada, Iraqi officials: 1 protester shot dead in fresh violence, 660News,

[14] Dagher, Minquith, Why are Iraqi Shiites leading the protests against their ‘own’ government?, Washington Post, 16 October 2019,

[15] Badawi, Tamer, Why Arab Sunnis are disengaged from Iraq’s protests?, Atlantic Council, 7 February 2020,

101.   The Tribunal is not satisfied that there is a real chance or a real risk that the applicant will face serious or significant harm in Iraq for the reason of or for reasons arising from his Sunni faith. Whilst the Tribunal is prepared to accept that the applicant may face some discrimination as a Sunni Muslim in southern Iraq, based on the evidence before it, the Tribunal is not satisfied that there is real chance or a real risk that this discrimination will give rise to serious harm or significant harm for the reason of, or for reasons arising from, his religion.

102.   The applicant has not claimed that he has any intention of participating in demonstrations or protests against the government should he return to Iraq. There is no persuasive information before the Tribunal to suggest that the lack of general security and any instability generated by the recent unrest is faced by the applicant personally. The Tribunal does not accept that the unrest and the general security situation in Iraq would expose the applicant to a real chance of persecution.

103.   Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the current civil unrest, lack of general security and the instability the applicant may fear are faced by the population generally and not by him personally. The Tribunal does not accept that there is a real chance that the applicant will be persecuted for one of the five reasons mentioned in s.5J(1)(a) of the Act as a result of the unrest nor that the risk to him in this context is a real risk faced by him personally rather than one faced by the population of the country generally and therefore excluded from the complementary protection criterion by virtue of s.36(2B)(c) of the Act. 

Membership of his family and tribe

104.   In his evidence to the first Tribunal, the applicant referred to his brothers [Mr F] and [Mr E] being granted protection visas in Australia. He also claimed that his father was killed in 2014 by Shi'a militias for reasons related to [Mr F]’s activities as a former police officer.

105.   In his statutory declaration of 10 December 2019, the applicant stated that his father was killed in February 2014 due to his brother [Mr F]’s role as a police officer responsible for the arrest of members of [a Shi’a group]. He stated that [Mr F] was the target of militias who wanted revenge. He further claimed that those who were arrested by [Mr F] have both tribal and militia support in the south, Iraq is a tribal society and he will be harmed by both tribes and the militias. In submissions following the second hearing, [Mr B] contended that the applicant would be at risk of harm in Iraq as a member of [Mr F]’s family. This risk is highlighted by the fact that [Mr F]’s activities had put [Mr E] at risk, as well as the murder of their father in 2014.

106.   The Tribunal had before it the Department’s files relating to [Mr F]’s protection visa application and [Mr E]’s Safe Haven Enterprise visa application. According to the claims made by [Mr F], sometime before his departure from Iraq in 2012, he was responsible for arresting members of a Shi’a militia implicated in acts of violence. After receiving death threats, [Mr F] departed Iraq with [Mr E], who was a minor and residing with him at that time. In his written statement of claims, [Mr E] reiterated his brother’s claims, noting that he was a child at that time and that he had been asked by [Mr F] to accompany him when the latter was departing Iraq. [Mr F] had later told him that death threats were made against both [Mr F] and him. Both [Mr F] and [Mr E] claimed that they believed their father was assassinated by Shi'a militias in 2014 because [Mr F] ‘was not there so they killed him instead.’

107.   The Tribunal notes that, in granting the visas, the Department appears to have uncritically accepted the claims made by [Mr F] and [Mr E], as the relevant files do not contain records of any further assessments or reasons for the decisions to grant the visas. In any event, the Tribunal is prepared to accept that [Mr F] had departed Iraq for the reasons he had provided. The Tribunal further accepts that he had asked [Mr E] to accompany him due to threats and fears for his safety. The Tribunal, however, has some doubts in relation to the claim that the applicant’s father was assassinated by Shi’a militias for the reasons provided by [Mr F] and [Mr E], as well as the applicant.

108.   In his statement to the Department, dated 12 May 2016, [Mr F] stated that he ‘believed’ his father had been ‘assassinated’ in 2014 because he ([Mr F]) was not there. He stated that his wife had informed him of the death of his father. At the second hearing, the applicant stated that he was in [Town] (during his first return trip to Iraq) when his brother’s wife called and told him that his father had been killed because of [Mr F]. Other than what had purportedly been relayed by [Mr F]’s wife, no further detail or information has been submitted or is available to the Tribunal in relation to the circumstances of the death of the applicant’s father.

109.   As noted earlier in these reasons, when the applicant arrived back in Australia [in] May 2014, he was questioned at the airport. In his responses, he told the relevant officers that he had travelled to Iraq because his father was unwell and has passed away. The applicant’s response when this information was put to him under s.424AA was also set out above. The Tribunal finds the applicant’s explanations unpersuasive. The Tribunal does not accept the applicant had not told the ‘truth’ because he did not know he was being interviewed by ‘immigration people’ or that he had withheld the truth because he did not want information about his father to be a stigma. Nor does the Tribunal accept that the applicant’s illiteracy explains the information he had provided at the airport. The Tribunal considers it reasonable to expect the applicant to have disclosed the ‘truth’ at that time. This evidence casts doubt on the applicant’s claims regarding the circumstances of his father’s death.

110.   In reaching this view, the Tribunal has also considered the applicant’s failure to disclose information in relation to the circumstances of the death of his father until his appearance before the first Tribunal. Indeed, in the response to NOICC, it was stated that the reasons which led the applicant to apply for a protection visa ‘still never changed’. Whilst reference was made to the applicant having siblings in Australia who ‘applied for protection… and that his family are persecuted because of their Sunni faith’, the applicant did not refer to his siblings’ circumstances or his father’s claimed murder. The applicant did not offer a direct explanation when this was put to him at the second hearing. [Mr B], however, addressed this issue in his oral submissions by stating that his practice is not to ‘lead the applicant to any information’ even if he is aware of that information and he usually confines himself to ‘NOICC comments.’ He further stated that there was no ‘ITOA input’ in the NOICC and there were no issues raised in relation to the applicant’s father, so there was no reason for him to ask the applicant to comment on something that was not mentioned in the NOICC. It is not clear to the Tribunal as to why the matters raised by [Mr B] would have prevented the disclosure of information in relation to the death of the applicant’s father as part of providing reasons in support of not cancelling the visa. Indeed, the response to NOICC had referred to such reasons, including the applicant’s fears of returning to Iraq for the reason of his Sunni faith. The failure to disclose this information to the Department in the course of its consideration of the cancellation of the applicant’s visa raise serious questions in relation to the claimed circumstances or the characterisation of the death of the applicant’s father.

111.   Even if the Tribunal were to accept that the applicant’s father was murdered as claimed, for the following reasons, the Tribunal is not satisfied that this leads to the conclusion that there is a real chance or a real risk that the applicant will experience serious or significant harm in Iraq for the reason of his family relationship with [Mr F], [Mr E] and their father.

112.   First, in his submission following the second hearing, [Mr B] contended that the incident involving [Mr F] and [Mr E] had occurred subsequent to the applicant’s departure from Iraq, ‘which means that the risk against the applicant is even bigger in its level than when it was at the time of the applicant’s real date of departure from Iraq.’ Whilst this may be the case, subsequent to his brothers’ departure, the applicant returned to Iraq in June 2013, remaining for 11 months. According to his own evidence, the applicant learned of his father’s death while he was in Iraq in 2014. He told the Tribunal that his sister-in-law had informed him that his father was killed because of [Mr F]. Despite this knowledge, as previously noted, the applicant returned to Iraq on two subsequent occasions in March 2015 and February 2016, remaining for a total period of nearly 20 weeks. On both occasions he entered Iraq through Basra airport. The Tribunal has already addressed the reasons provided by the applicant for his return trips to Iraq. On the last occasion the applicant travelled to Iraq, he moved his family to Zubair in the predominantly Shi’a Governorate of Basra and remained with them for the duration of his stay. The Tribunal is of the view that the applicant’s voluntary return to Iraq following his brothers’ departure and the death of his father casts serious doubts in relation to the genuineness of his fear of harm and the credibility of his claims in this regard. 

113.   Secondly, the events that led to the departure of [Mr F] and [Mr E] from Iraq had occurred some eight years ago. It is not clear why Shi’a militias had waited 15 months after [Mr F]’s departure to approach and target his father because [Mr F] was not there. No other member of the applicant’s family in Iraq appears to have been targeted by any Shi’a militia or anyone else for reasons related to [Mr F] and his actions as a policeman. The applicant has six sisters and a brother, [Mr H], who continue to reside in Iraq. In relation to [Mr H], it was submitted that he is disabled and ‘is known to having no links with his brothers’. It was not claimed that [Mr H] is estranged from his brothers. Regardless of any links to his brothers, it would be reasonable to assume that if anyone had intended to harm members of [Mr F]’s family as revenge or an act of intimidation, they would have had ample opportunity to target [Mr H], but he has not been harmed. The Tribunal does not accept that [Mr H] has been spared due to a disability. There is no persuasive information before the Tribunal to suggest that Shi’a militias or extremist groups discriminate on the basis of age, sex or disability in exacting revenge and targeting enemies. Indeed, if the evidence in relation to the applicant’s father is accepted, it does not appear that he was spared harm due to his advanced age. No other member of the applicant’s family has been harmed since February 2014 and the Tribunal is of the view that if any Shi’a militia, group, tribe or individuals had any intention of harming members of [Mr F]’s family, they had ample opportunity to do so over the past six years.

114.   It was submitted on behalf of the applicant that It is possible that the Shi'a militia members who were arrested by [Mr F] and subsequently imprisoned may be released in the near future and target the applicant if he were to return to Iraq. At the second hearing [Mr B] acknowledged that this was not a certainty. Indeed, in the absence of any other information in relation to these individuals, their precise fate subsequent to their detention and their present circumstances, this claim appears to be mere conjecture. The Tribunal does not accept this claim. The Tribunal does not accept that the applicant would be considered to be of adverse interest to Shi'a militias, any group, including Asaeb Ahl Alhaq or any tribe in the south. Nor does the Tribunal accept that the applicant would be targeted by any militias, groups, or individuals for tribal reasons or reasons related to his membership of [a named] tribe or any other tribe due to any tribal conflict, whether pre-existing or arising as a consequence of [Mr F]’s actions in 2012.

115.   For the above reasons, the Tribunal does not accept that the applicant faces a real chance or a real risk of serious or significant harm for the reason of, or reasons arising in relation to, [Mr F]’s former profession as a policeman or any action he might have taken in the course of performing his duties, including arresting Shi’a militiamen. The Tribunal does not accept that the applicant faces a real chance or a real risk of serious or significant harm for the reason of, or reasons arising in relation to, membership of his brothers and/or his father’s family or membership of the particular social group of Sunni males in Iraq or southern Iraq. The Tribunal does not accept that the applicant faces a real chance or a real risk of serious or significant harm for the reason of, or reasons arising in relation to, membership of the particular social group of his tribe. The Tribunal does not accept that the applicant faces a real chance or a real risk of serious or significant harm for the reason of, or reasons arising in relation to, his Sunni faith or imputed political opinion. The Tribunal does not accept that the applicant faces a real chance or a real risk of serious or significant harm for any of these reasons individually, cumulatively or in any combination. 

116.   The Tribunal does not accept on the evidence before it that there is a real chance that the applicant will face persecution involving serious harm as required by s.5J(4)(b) of the Act for one of the reasons mentioned in s.5J(1)(a) of the Act, including his Sunni religion, imputed political opinion or membership of any particular social group, including his family, tribe, Sunni males in the south or any other group or sub-group apparent on the face of the evidence. The Tribunal does not accept that there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act in Iraq.

117.   The Tribunal finds that there are no obligations under relevant international agreements which will be breached if the applicant’s visa is cancelled.

Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

118.   There are no persons in Australia whose visas would, or may, be cancelled under s.140 of the Act.

If there are children in Australia whose interests could be affected by the cancellation

119.   There are no children in Australia whose interests could be affected by the cancellation.

Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

120.   If the applicant’s visa is cancelled, he will be an unlawful non-citizen and may be detained and liable for removal. There are provisions in the Act which would prevent him from making a valid application for any visa without the Minister personally intervening. However, the applicant is a citizen of Iraq. He travelled to Iraq on three separate occasions following the grant of his protection visa and the Tribunal considers that he will be able to return to Iraq. The Tribunal does not accept that indefinite detention is a likely consequence of the cancellation decision. 

Conclusions

121.   For the reasons set out above, the Tribunal has found that the applicant provided incorrect information in his application for a protection visa and the accompanying statement. The Tribunal has found that the decision to grant the applicant a protection visa was based on the incorrect information which he provided. Having carefully considered all of the relevant circumstances, the Tribunal finds that the applicant’s visa should be cancelled.

DECISION

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

Shahyar Roushan
Senior 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.