1921674 (Migration)

[2021] AATA 2507

1921674 (Migration) [2021] AATA 2507 (25 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1921674

MEMBER:Melissa McAdam

DATE:25 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 25 June 2021 at 10:52am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers in protection visa application – adverse profile and fear of harm – religion – Sunni Islam – father’s and brother’s charitable work at mosque – applicant and brother kidnapped, beaten and threatened by members of Shiite militia – applicant’s and brother’s voluntary returns to home country for extended periods to visit elderly, sick parents – father now not working at mosque and parents living in isolated area – minor at time of protection visa application and grant – brother’s mental health – country information – lower profile now and improved general security situation not necessarily inconsistent with claims of past harm and fear – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)

CASES
Mian v MILGEA (1992) 28 ALD 165
Singh v MIEA [1994] FCA 1534
Tarasovski v MILGEA (1993) 45 FCR 570
Zhao v MIMA [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant was represented in relation to the review by his registered migration agent.

3. The delegate cancelled the visa on the basis that the applicant had not complied with section 101(b) of the Act.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   NOICC – s.107 Notice

4. On 11 September 2018 the delegate issued to the applicant a Notice of Intention to Consider Cancellation of the applicant’s visa (‘the NOICC’) under s.107 of the Act.  In the NOICC the delegate set out the following:

   I consider that there has been non-compliance with the following section(s) of the Migration Act 1958:

   Section 101 Visa applications to be correct
   A non-citizen must fill in or complete his or her application form in such a way that:
   (b) no incorrect answers are given or provided.

   By operation of s99 of the Migration Act 1958, 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.

   The possible non-compliance is in part in relation to a visa you previously held, namely the
   Protection (subclass 866) visa granted on 3 July 2012. Section 107A provides a current visa may be cancelled if there was non-compliance with a previous visa ….

   You arrived at Christmas Island as an Illegal Maritime Arrival (IMA) [in] October 2011 with your brother [Mr A] and indicate that you wished to apply for Protection. On 11 December 2011 you provided your statement of claims as follows (verbatim):

   Introduction:
   I am an Iraqi national. I was born in Al Basra, Iraq. I do not have a right to enter or remain in another country, I am [age] years of age. I am of Arab ethnicity. I am single. I am a Sunni Muslim. I left Iraq in October 2011 with mv brother [Mr A] ([ID number]), who is here with me at [location 1]. On our way to Australia we travelled via [Country 1], [Country 2] and [Country 3]. We arrived on Christmas Island [in] October 2011.

   The reasons I left
   The reasons I left Iraq have been explained in my brother [Mr A]'s statement. I wish to add the following information:

   From 2009 until we left Iraq, my father and brother worked at [a named] mosque, which is a Sunni mosque. They would provide assistance to the needy families and provide them with basic supplies. My father earned a salary for his work and my brother would assist him to perform the work.

   On the morning of 4th August 2011 I was at home with my mother. There was a knock on the door. When I opened the door two masked men grabbed me and took me out of the house. I screamed. I did not get the opportunity to look back to see if my mother could see what was happening. It all happened very quickly.

   When I got in the car there was another man in the car in the driver’s seat. I was put in the back seat and had one man on each side of me. When I was in the car these two men were slapping me across the face.

   I was taken to a deserted house. I was scared and crying. I do not know if there were other people in the house. They put a blindfold on me and one of the men guided me to a chair. I did not have my hands bound. I was slapped across the face. They also hit me on the leg. They said that if my father did not leave the mosque they would kill me. They then left the room. I was left alone for a period of time. I was so scared I do not know how much lime passed. It may have been 1,2 or 3 hours.

   They then came back to the room and tied m, hands and took me back to the car. They dropped me at the front of the house. I was still blindfolded and had my hands tied. I screamed out for my mother. My mother came and helped me. When my father and brother came home for lunch I told them what had happened. This experience is very difficult for me to talk about.

   The next day my brother went to work and my father stayed at home. My brother did not return from work. My brother was taken by the Al Dawa party. He has explained what has happened to him in his statement ([ID number]).

   When my brother was released my father decided it was too dangerous for us to stay in the area and he arranged for us to leave Iraq. We left Iraq on October 2011.

   What I fear may happen to me if I return:
   I fear if I return to Iraq I will he seriously harmed and possibly killed.

   Who might harm me if I return:
   I fear I will be harmed by the Al Dawa party.

   Why I think that might happen to me if I return:
   I fear I will be harmed because my father and brother worked in the mosque helping other Sunni families. I have already been detained and harmed by the Al Dawa party.
   They are against the Sunni people and I will always be a risk of being harmed by them.

   Do I think the authorities can protect me if I return?
   The Al Dawa party are a strong party and the authorities are weak and are unable to
   control them and stop their activities.

   Can I go anywhere else in the country, apart from where I used to reside?
   I cannot reside in any other part of the country.  My father and mother are now living
   on a farm in the desert. My father is old and has some savings but I am young and need to work and support myself.  I need to live somewhere where there are work opportunities. I cannot move to another area in Iraq as I have no family in other parts of the country.

   Your brother's Protection claims outlined the same reasons and also stated that your parents were residing with your paternal uncle on a farm in the desert as they did not feel safe in the family home and feared they would be killed if they remained there.

   On 29 June 2012 you lodged an application for a Protection (subclass 866) visa. In lodging this
   application you completed the form 866C 'Application for a Protection (Class XA) visa'. As part of this application you provided the following responses (responses in Italics):

   I am seeking protection in Australia so that I do not have to go back to
   'Iraq'
   Why did you leave that country?
   'Please refer attachment' (referring to the above statement of claims)
   Have you experienced harm in that country?
   'Yes. Please refer attachment' (referring to the above statement of claims)
   What do you fear may happen to you if you go back to that country?
   'Please refer attachment' (referring to the above statement of claims)
   Who do you think may harm / mistreat you if you go back?
   'Please refer attachment'' (referring to the above statement of claims)
   Why do you think this will happen to you if you go back?
   'Please refer attachment' (referring to the above statement of claims)
   Do you think the authorities of that country can and will protect you if you go back?
   'No. Please refer attachment' (referring to the above statement of claims)

   On the basis of this information and meeting all other requirements you were granted a Protection visa on July 2012.

   [In] March 2015 you departed Australia and declared on your outgoing passenger card that your intended destination was 'Iraq'.

   [In] July 2015 you arrived in Australia and declared on your incoming passenger card that the country where you spent most time abroad was 'Iraq'.

   On 11 August 2017 your brother provided a medical document to the Department which stated that your mother [Ms B] was a local of Al Zubair and that she had been admitted to hospital in Al Zubair.

   Information before the Department also indicates that your brother has returned to Iraq for a
   significant period of time without issue or impediment.

   It therefore appears you have provided incorrect information in association with your application
   for a Protection visa. It appears that you did not and do not hold the adverse profile as claimed in your protection visa application.

   Your Protection visa was granted on the basis that you satisfied the Minister that you engaged
   Australia's protection obligations under the Refugees Convention. You have consistently
   maintained that you will be seriously harmed or killed if you return to Iraq.

   You have, however, returned to Iraq for a period of approximately four months without apparent
   issue or impediment. Your brother has also provided a document that indicates that your mother is residing in Al Zubair and not hiding in the desert as claimed. Your claim that your family was known to and was tortured by Shia Militia was fundamental to the determination that you are a person to whom Australia has protection obligations. As the incorrect information you provided was material to this determination it appears that you may not have engaged Australia's protection obligations.

   It appears that you have not complied with section 101(b) of the Act as you have provided incorrect information in relation to the following questions:

   In response to question 43 of form 866C, you stated that you left Iraq as you feared harm or
   possibly death from Shia Militia groups. This information appears to be incorrect as you
   have subsequently returned to Iraq for approximately four months without apparent issue or
   impediment and your brother has provided evidence to indicate that your parents are not in
   hiding. This indicates that you do not hold the adverse profile you have claimed in your
   Protection visa application.

   In response to question 44 of form 866C you stated that you had experienced harm in Iraq
   from Shia militia groups. This information appears to be incorrect as you have subsequently
   returned to Iraq for a period of four months without apparent issue or impediment. This
   indicates that you do not hold the adverse profile as you have claimed in your Protection
   visa application.

   In response to question 45 of form 866C you stated that you feared you would be harmed or
   possibly killed if you returned to Iraq by Shia militias. This information appears to be
   incorrect as you have subsequently returned to Iraq for approximately four months without
   apparent issue or impediment. This indicates that you do not hold the adverse profile as
   claimed in your Protection visa application.

   In response to question 46 of form 866C you stated that you feared you would be harmed by
   Shia militia groups, specifically the Al Dawa party if you were to return to Iraq. This
   information appears to be incorrect as you have subsequently returned to Iraq for a period of
   four months without apparent issue or impediment. This indicates that you do not hold the
   adverse profile as claimed in your Protection visa application.

   In response to question 47 of form 866C you stated that you feared you would be harmed
   because your brother and father had worked in a Sunni mosque. This information appears to
   be incorrect as you have subsequently returned to Iraq for approximately four months
   without apparent issue or impediment. Further your brother has also returned to Iraq for a
   significant period of time without apparent issue or impediment and he has provided
   evidence which indicates that your family are residing in Al Zubair, contrary to claims that
   they are in hiding. This indicates that you do not hold the adverse profile as claimed in your
   Protection visa application.

   In response to question 48 of form 866C you stated that you did not believe that the
   authorities would protect you if you go back as the Al Dawa party are strong and the
   authorities are weak. This information appears to be incorrect as you have subsequently
   returned to Iraq for approximately four months without apparent issue or impediment.
   Further your brother has also returned to Iraq for a significant period of time without apparent issue or impediment and he has provided evidence which indicates that your family
   are residing in Al Zubair, contrary to claims that they are in hiding. This indicates that you
   do not hold the adverse profile as claimed in your Protection visa application.

   If you have provided incorrect information and not complied with section 101(b) of the Act your
   Resident Return visa is liable for cancellation consideration.

   Possible reassessment of non-refoulement obligations
   The response you provide to the information observations made and put to you in this Notice may be used to re-assess Australia's non-refoulement obligations in relation to you.  Your response to the following additional information will also be considered:

   As stated above in this Notice, departmental records indicate that you have voluntarily returned to Southern Iraq and resided there for some four months since being granted protection in Australia, seemingly without difficulty. Your actions appear to be in contradiction with your claims that you fear being seriously harmed or even killed by the Dawa Party or other Shia militias on return to Iraq. In your Protection visa application, you claimed that you were kidnapped and mistreated in the past by members of the Dawa Party. However, your voluntary re-entry to Iraq, and lengthy period of residence there without incident suggests that you do not have an adverse profile for any reason, and that you are able to safely reside in Basra, Iraq.

   Available country information indicates that government forces retain control over Southern Iraq, including Basra). According to the UK Home Office report titled 'Country Policy and Information  Note: Sunni (Arab) Muslims' issued on 28 June 2017: "in general, Sunnis will not face a real risk of persecution or serious harm in the southern governorates.”  The same report also indicates that: “A Sunni can, in general, relocate to the southern governorates, if not unduly harsh based on their circumstances.”

   The same report at 3. 1.1 "While Sunnis are more likely than others to be targeted as actual or
   perceived Daesh sympathisers than other Iraqis, Sunni identity alone is not sufficient to give rise to a real risk of serious harm. "

   Also, country information indicates there is now a close relationship between Shia militias and the Iraqi Security Forces (ISF). In its June 2017 Country Information Report - Iraq, the Department of Foreign Affairs and Trade (DFAT) reported the following about the Iraqi Popular Mobilisation Forces (PMF):
   The PMF is a state-sanctioned umbrella organisation composed of well over 200 armed groups
   that are predominant/v Shia (although the PMF includes Sunni tribal fighters and minority groups). Many of these groups have existed for some time and have close links to Iran. On 7 April 2016, the Council of Ministers decided to bring the PMF under centralised control as an independent military organisation, answering to Prime Minister Abadi as Commander-in-Chief.  The PMF was formally brought within the ISF in November 2016, although the organisational details are still to be developed.”

   The above report also advises of the following:
   “DFAT has considerable evidence that shows a number of Iraqis return to Iraq, sometimes only
   months after securing residency in Australia to reunite with families, establish and manage
   businesses or take up or resume employment. The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. DFAT has limited evidence to suggest that voluntary returnees from the West face difficulties in assimilating back into their communities. However, in-country contacts have said that returning to Iraq can be difficult, particularly if the individual does not return to their original community.”

   Your voluntary re-entry to Iraq, your extensive period of residence there on this occasion, without incident, combined with the above country information may also lead to a finding that Australia does not have non-refoulement obligations in relation to you.

   Response to NOICC

5. On 24 September 2018 the delegate was emailed the following documents under the subject heading “File [No] name [the applicant]”:

   -A medical report from a neurologist at [Hospital 1], dated 01/06/2013, stating that Patient [Mr C], born in [Year 1] suffered from brain clotting. He was referred from [Hospital 2] on 01/06/2013. As a result clotting in the blood vessels was located on the left side of the head. This is not the first time it is according to the medical record, the third time. Medicine were given to the patient to stop the bleeding the patient was last medically examined on 16/11/2013.

   -A medical report from a doctor at [Hospital 3], dated 05/12/2014, stating the doctor has examined the patient [Ms B], born [Year 2], who was referred by [Hospital 2] on 05/12/2014. She is a local of Al Zubair. The result reveals that she has developed a [cancer]. The disease was caused by smoking.

   Delegate’s Decision

6. On 30 July 2018 the delegate decided to cancel the applicant’s Resident Return visa.  The delegate provided the following reasons in her decision:

   She acknowledged the applicant would want to visit his parents but found his return to Iraq inconsistent with his claims to fear harm or possible death in Iraq.  He did not explain how he evaded the militia groups he claimed to fear during his two visits to Iraq or how circumstances may have changed to the extent that it would make it safe for him to travel to Iraq. 

   Further, evidence provided by the visa holder indicated that his parents were residing in Basra in contradiction with his claims they were residing in an isolated area.

   The Delegate considered that the applicant did not fear for his safety in Iraq as claimed at the time his visa was granted.  She was not satisfied the applicant held a genuine fear of returning to Iraq and considered he had provided incorrect information in his application for a Protection visa, specifically in response to questions 43, 44, 45, 46, 47 and 48 on form 866C.

   Information to the Tribunal

   Pre-Hearing Submission

7. On 27 April 2021 the applicant’s Agent provided a written submission and a Statutory Declaration from the applicant.

1. In his Statutory Declaration dated 26 April 2021 the applicant states the following:

   … Growing up my father used to work at the mosque and construction, while my mother is a housewife. I never went to school in Iraq. I stayed home with my mum, it wasn’t safe, My father and brother went to work.

   Life in Iraq
   I lived majority of my life in Al Basra where my father and brother both worked in a mosque five minutes away from home. In 2011, I remember I was sitting at home. I heard someone knocking on the door, and then I got up to check who it was. When I opened the door, I saw two masked men and they immediately placed their hands on my mouth, which prevented me from screaming because I was trying to alert my mum.

   I was blindfolded. They put me in the car and drove. I remember they took me to an old house. They smacked me, tied my hands, arms, and legs. I didn’t know who they were, but they kept saying “If your dad don’t leave the mosque, we will kill you.” We found out later on that they belonged to the Al-Dawaa party.

   They kidnapped me to scare my dad. They kept me for 2-3 hours and by the time they finished hitting me, they took me back When my dad returned home I told them what happened and the following day, my dad did not go to the mosque, only my brother [Mr A].

   I never went to school in Iraq because of this. My father and brother specifically told me to stay home and look after mum for safety because they knew this day would come. The Al-Dawaa party has been threatening everyone like my dad who are Sunni Muslims.

   My brother [Mr A] was also kidnapped. But they hurt him badly I don’t remember much of the details because I was young. I remember he was very hurt. They hit him in the head. They bashed his face and nose. They hurt his nails. I heard from my brother that they said if he and my dad don’t leave the mosque, they will be killed.

   The Al-Dawaa party are anti-Sunni Muslims. They target a lot of people, but they usually go after the poor and innocent ones that can’t defend themselves. When my family found out who kidnapped my brother and me, my father did his best to save us, send us to Australia to escape and have a better life.

   Coming to Australia
   My brother and I travelled together to Australia. We travelled on a plane from Iraq to [Country 1], then to [Country 2] and [Country 3]. From [Country 3], we rode a boat to Christmas Island, Australia. We arrived [in] October 2011. The boat ride was a long and scary journey. My brother paid
   $10,000 ($5,000 for us each) to get to Australia. He organised it.

   When we arrived in Australia we were taken Christmas Island for about a month. Then we went to Darwin, then Brisbane. Then we came to Sydney.  My brother and I settled around [Suburb 1]. I went to [Suburb 1] High School but didn’t finish. I was [age] when I finished year [number]. While I was in high school, I was going to TAFE in [Suburb 2] once a week for six months doing [Subject 1]. I only finished half the course.

   I then started working in [Industry 1]. I worked for maybe eight months, but the company didn’t have much work for me, so I left. I was working on and off in [Industry 1] through the years. I was unemployed last year because of covid, but I am determined to find a job again. I am currently on Centrelink.

   Returning to Iraq (2015)
   After we arrived in Australia my parents started to get really sick. My mum had [cancer], while my dad had blood clots on his brain. My brother and I were scared to travel back, but we didn’t want to miss the chance to see them before they died.

   My brother travelled to Iraq first in late 2014 and I followed in early 2015. I prepared all the necessary documents to travel and booked my ticket with a travel agent. I was really scared throughout the journey, but I did it for my parents whom I haven’t seen in such a long time.

   I brought a bit of cash with me on this trip. When I arrived at the airport, there were a lot of guards. The airport didn’t have a computer system. They just witnessed my travel document and stamped. I was anxious and scared, but I made it through.

   I arrived in the morning and my uncle (mum’s brother) picked me up at the airport. We went straight to his farm in [Location 2] where my parents were staying with him. [Location 2] is about [distance] drive from Basra.

   When I got there, [Mr A] was already with my parents. I stayed there for four months and never left my uncle’s farm during those times. [Mr A] was taking my mum to the hospital, while I was helping my uncle.

   I only came to Iraq because of my parents. I never thought I’d see them ever again after escaping, but when I heard they were both very sick, I knew I had to see them one last time.

   I have never since returned to Iraq and never plan to return. During my last trip I always felt unsafe and unsure. I did my duty as a son to see my parents, but I will never return there again.

   Why I Can’t Return to Iraq
   I can’t go back to Iraq because I still feel unsafe. My parents moved with my uncle and his family in [Location 2] ever since the attack in 2011. My father hasn’t worked again because of fear of being caught by the Al- Dawaa party.

   If I return to Iraq, I can’t work because I would still be unsafe. I have an anxiety that the Al-Dawaa party would kidnap me again and maybe kill me for real if they find me. The police are corrupt and the Al-Dawaa party is greater than them. It’s very dangerous for me to go back.

   I only travelled to Iraq to see my parents for the last time after finding out they were very sick. I was scared to lose them and not see them before they go. It was terrifying for me to return, but more terrifying to lose my parents without saying goodbye. If I could live with my parents without fear, I would.

   I travelled to Australia to escape and save my life. Our father did his best to save my brother and me from being killed in Iraq. I wish we are all together here, but our parents sacrificed themselves so we can be safe. I fear for their lives every day. The Al-Dawaa party is powerful. They are known to be violent and dangerous. No one in the right mind would dare to stop them, not even the police. My life will forever be in danger because of them if I return to Iraq.

   I am hoping that the Australian Government would give me another chance. I consider Australia my home and I want to be a good contribution to this country. Our father put my brother and me on a plane to have a better life. He sacrificed so much just to make us safe. Although I miss my parents so much, I will never take the risk of going back to Iraq ever again.

2. In her written submission the applicant’s Agent outlines the following:

   -    On 17 November 2011, the applicant and his brother attended an Entry Interview and made refugee claims. The applicant’s input was limited because he was a minor.

   -    On 29 June 2012 the applicant’s brother lodged an application for a Protection (Class XA) (Subclass 866) visa. The applicant was included as a family member.

   -    On 3 July 2012 the applicant’s brother was granted a Protection visa. The applicant was listed as a family member included on the visa grant. He was [age] years old at the time of grant.

   -    [In] June 2013 the applicant’s brother returned to Iraq and stayed there for a period of 6 months to [December] 2013.

   -    [In] December 2014, the applicant’s brother returned to Iraq and stayed there for a period of 6 months to [June] 2015.

   -    [In] June 2015 on arrival to Australia, the applicant’s brother was interviewed and told DIBP staff that he travelled to Iraq. This was confirmed by the entry and departure stamps on his Australian issued Titre De Voyage.

   -    The applicant’s brother received a letter dated 27 July 2017 from DIBP – Notice of Intention to Consider Cancellation.  The applicant’s brother provided a response to the DIBP dated 11 August 2017. He received a letter dated 12 October 2017 – International Treaties Obligations Clearance Letter.  The applicant’s brother received a letter dated 3 April 2018 – Notification of Cancellation, and subsequently applied for merits review of this decision.

   -    On 9 May 2019 the applicant’s brother was invited to attend a hearing at the Administrative Appeals Tribunal.  On 29 May 2019 [Mr A] provided evidence to the AAT.  On 5 June 2019 the applicant’s brother attended the AAT hearing. The AAT affirmed the visa cancellation.

   -    An appeal was lodged with the Federal Circuit Court ([case details deleted). The hearing was held [in] March 2021 before [Judge D] The judgement is scheduled to be handed down [date] 2021.

   -    Between [March] 2015 and [July] 2015 the applicant travelled back to Iraq for a period of 4 months. He was [age] years old at the time.

   …

   The applicant has great fears that if deported his life would be at risk in Iraq not only because of his religion but now, he would be seen as a foreigner. Foreigners are targeted as they are seen to have money. Having left Iraq at the age of [age] years old he doesn’t have the know how or connections to live safely.

   The applicant responded to the correspondence from the Department. This was given little weight by the Department as noncompliance wasn’t addressed the noncompliance. We submit that the applicant didn’t have legal representation at the time and has very basic English ability.

   There have been no other incidents of non-compliance. The applicant instructs he has no criminal record and hasn’t left Australia since his travel in 2015.

   Around 8 years and 9 months has passed since the applicant was granted his protection visa on the 3 July 2012. It has been around 6 years since he returned to Iraq. He is a settled and established resident of Australia.

   There have been no breaches in any laws at any stage by the applicant.

   The applicant hasn’t made any major contributions to the community. He has been a law-abiding citizen, looking for employment in [Industry 1]. He is keen and willing to contribute through employment. His also wanting to improve his English skills so his chances of employment improve.

   Tribunal Hearing

3. The applicant appeared before the Tribunal on 28 April 2021 and 19 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.  The following is a summary of the information provided by the applicant at the hearing:

   a.The applicant was working to support himself until the COVID 19 pandemic reduced the available work and he was retrenched.  He is receiving Centrelink support.  He does not have a Bridging visa.

   b.His Protection visa application was prepared with the assistance of a lawyer and interpreter. His brother was always present during the application process.  His brother answered most of the questions but the applicant gave statements relating to his own circumstances in Iraq.  He was [age] years old at the time.  He was able to understand the interpreter assigned to him and his statement was read back to him for him to sign.

   c.He received no education in Iraq. His father feared the applicant would be harmed if he went out so he did not go to school.  His older brother did not go too school in Iraq either.

   d.The applicant mostly stayed at home in Iraq.  He was not taught to read or write. His mother taught him to count to 100 and to recognise written numbers in Arabic.  He could also recognise a few letters of the Arabic alphabet.

   e.His parents are in Iraq and he has only one uncle there, his father’s brother.  They live together in [Location 2], near Basra.

   f.He has no relatives in Australia apart from his brother.  [Tribe 1] is a big tribe so there are other [Tribe 1 members] in Australia.  The applicant knows some of them but is not directly related to them.

   g.The applicant and his family are Sunni Muslims. The applicant has attended mosque in Sydney a few times.  He went to the [Suburb 3] Mosque.

   h.The applicant was kidnapped from his home by members of the Al Dawa party in August 2011. They told him his father must stop working at the mosque or they would kill the applicant. They returned him to his home.  The next day his father stayed home but his brother went to work at the mosque. He was kidnapped from there, beaten and tortured. He was injured on his head and still has a wound.  He was treated at [Hospital 2] after his release. His father told the applicant and his brother they should leave Iraq.  The applicant’s parents left Basra and went to his father’s brother’s farm in the desert at [Location 2].

   i.The applicant’s brother just wants to forget what happened. This may be why he got his dates mixed up. Things happened a long time ago and people want to forget.  The applicant’s brother is seeing a psychologist.

   j.The applicant returned to Iraq in 2015 because his mother developed [cancer] and his father had a stroke.  He thought he would not able to see them again if he didn’t return then.

   k.While he was back in Iraq he stayed at his uncle’s farm in [Location 2].  He didn’t visit the hospital where his parents were treated. His brother would take them to hospital for treatment and return with them.

   l.The applicant’s brother also stayed at the farm in [Location 2] when he twice visited Iraq.  He would take his parents to a private hospital in Basra but otherwise stay at home.

   m.His father’s stroke has left him paralysed on his left side. He is unable to work.

   n.After the problems with the Al Dawa party his father stopped going to the Mosque to work and went to live with the applicant’s uncle.  Since then his father has stayed away from the town.

   o.The Al Dawa Party want to control the state and the people.  They have all the power.  They target whomever they want to.

   p.The applicant does not know if the Al Dawa Party would still want to target him.

   q.Apart from his problems with the Al Dawa Party the applicant was always fearful and scared in Iraq.  It is not a country in which he can achieve his dreams.  He could be killed at any moment. 

   r.The applicant has a dream to continue studying [Subject 1] and then open his own business.  He has done six months of [Subject 1] studies at [Suburb 2] TAFE and at high school. He was going to school and studying at TAFE at the same time. He passed his subjects. He would not be able to do this in Iraq.  Life is different there.  In Australia people will teach and help you.  In Iraq this can’t happen.

   s.The applicant has never been arrested or convicted of any offence in Australia.

   t.If he has to return to Iraq he feels his life will be destroyed.  He has lived a large part of his life in Australia and feels that his future is here.

   Post-Hearing Submission

4. On 24 June 2021 the applicant’s Agent provided a psychologist’s report dated 24 June 2021 regarding the applicant’s brother, [Mr A].  The report outlines the following:

   -The psychologist has been treating the applicant’s brother for over 18 months.

   -He “appears to have been struggling with severe mental health issues for over a decade, believed to have been triggered by traumatic experiences he endured in Iraq”.

   -He has been assessed as suffering from “Post-Traumatic Stress Disorder with severe Depression and severe levels of Anxiety”.  The findings are consistent with earlier diagnosis made by other health professionals who have assessed him in the past.

   -The PTSD symptoms he has reported include flashbacks, irritability, angry outbursts, restless sleep, social withdrawal, anxiety, heightened startle response, significant lapses in concentration and memory, and emotional disassociation.

   -Based on assessments and consultations with the applicant’s brother it is evident he has been traumatised in the past, and is still struggling with severe psychological issues relating back to the trauma.

   -Due to his psychological illnesses he experiences severe lapses in memory and concentration, particularly when he senses a threat or is under stress.

   -He also suffers from several chronic health issues, with chronic pain in his back, shoulders, neck, and knees. He suffers from sleep aponia and thyroid problems.

   Country Information

   2011

5. According to available country information in 2011 the predominantly Shia Al Da’wa Party had won the majority of seats in the provincial government in Basra. The central government in Baghdad was also controlled by the Al Da’wa Party.  Sunni Arabs were being purged from government and the security forces as well as being denied autonomy in Shia controlled regions.[1]

   [1] See e.g. Katzman, K, 2012, US Congressional Research Service, “Iraq: Politics, Governance, and Human Rights”, 19 April.

6. There are also reports of Shia militias frequently kidnapping Sunnis In Iraq in this period.[2]  An earlier UNHCR report, published in 2009, refers to attacks on Sunnis continuing in Shi’ite-dominated areas, with the small Sunni community in Basra reportedly targeted with intimidation and property damage in attempts to forcibly evict them, as well as with killings and assassinations.[3]

   2015

   [2] See e.g. The Finnish Immigration Service Country Information Service, 2015 report, “Security Situation in Baghdad - The Shia Militias”, 29 April; and ABC News 2014, “Suicide Attacks Kill At Least 17 in Iraq after Mosque Shooting”, 24 August.

   [3]  United Nations High Commissioner for Refugees 2009, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers”, April, Section VIII.H.

7. The 2015 USDOS Country Reports on Human Rights Practices for Iraq contained the following references.  In 2015 Da’esh/ISIS was making inroads into Iraq. As a mostly Sunni aligned organisation its targets included Shia Muslims.  In January 2015 four Sunni clerics were killed in Az Zubair, Basra, by unknown assailants. After the killings “[r]eligious leaders on both sides called for restraint, and the prime minister ordered an investigation that produced no results by year’s end.”  Anti-corruption demonstrations in major cities increased with limited reports of violence against protestors. There was a media report of a protestor being shot in Basra in July.

8. There were also media reports of a bombing in Az Zubair in October 2015 by ISIS,[4] and of local Iraqi Sunni armed groups joining with Shia militias to combat ISIS.[5]

   [4] ABC News, 2015, “Islamic State: Dozens Die in Bomb Attacks in Iraq, IS Claims Responsibility For Blast Near Basra”, 6 October.

   [5] Middle East Eye, 2015, “Iraqi Sunnis join Shia militias to fight IS militants” 15 June.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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.

11. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

12. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:

    -His response to question 43 in Form 866C of his Protection visa application, that he left Iraq as he feared harm or possibly death from Shia Militia groups.

    -His response to question 44 of Form 866C that he had experienced harm in Iraq from Shia militia groups.

    -His response to question 45 of Form 866C that he feared he would be harmed or possibly killed if he returned to Iraq by Shia militias.

    -His response to question 46 of Form 866C that he feared he would be harmed by Shia militia groups, specifically the Al Dawa party if he returned to Iraq.

    -His response to question 47 of Form 866C that he feared he would be harmed because his brother and father had worked in a Sunni mosque.

    -His response to question 48 of Form 866C that he did not believe the authorities would protect him if he goes back as the Al Dawa party are strong and the authorities are weak.

1. The above responses were considered to appear incorrect because the applicant returned to Iraq for approximately four months without apparent issue or impediment and his brother had provided evidence indicating their parents are not in hiding. This was considered to indicate that the applicant did not hold the adverse profile he had claimed in his Protection visa application.

   Consideration whether there has been non-compliance as particularised.

2. In cancellation cases the existence of facts grounds the exercise of the statutory power. The onus of establishing those facts is therefore on the Minister, or on review, the Tribunal.[6] Although the applicant must be invited to show that the ground does not exist, or if it does, to show cause why the discretion to cancel should not be exercised, this does not place an onus on the applicant to establish that the visa should not be cancelled.[7]  Furthermore, in the context of s 109, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.[8]

   [6] See e.g. Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA [1994] FCA 1534 at [14]..

   [7] See e.g. Zhao v MIMA [2000] FCA 1235 at [25] and [32].

   [8] See e.g. Tarasovski v MILGEA (1993) 45 FCR 570 at 572–573 and Singh v MIEA [1994] FCA 1534 at [16].

3. As particularised by the s.107 notice the issue in this matter is whether or not the applicant provided incorrect answers in his Protection visa application, regarding his fears and profile in Iraq, at the time of completing the application.

   Return to Iraq

4. The applicant has confirmed that he returned to Iraq for four months in 2015 and his travel records further confirm this.  The Tribunal finds the applicant did return to Iraq for four months in 2015. 

5. The applicant has also confirmed that his brother returned to Iraq twice for several months each time, in 2013 and in 2014-5.  The applicant’s brother travel records also confirm this.  The Tribunal accordingly finds that the applicant’s brother returned to Iraq twice for several months each time, in 2013 and in 2014-5. 

6. The Tribunal notes that the threat to the applicant and his family, as described by him and his brother in their Protection visa applications, arose from his father’s and brother’s work at a local mosque for the benefit of Sunni Muslims.  Further violence was threatened if the applicant’s father (and presumably brother) did not stop their work at the mosque.  Given they did stop their work at the mosque it seems logical to assume that the family would no longer be an active target for the Al Da’wa party. This does not necessarily mean that they could continue to live in Az Zubayr without threat of again coming to the adverse attention of pro-Shia armed groups. But it does seem that there would be minimal risk for the applicant and his brother to visit their family in Iraq when the family as no longer engaging in any activity that would antagonise any pro-Shia armed groups and are living away from the area in which the threat arose.

7. The Tribunal therefore does not view the applicant and his brother’s returns to Iraq without problem, as determinative of the question whether their claimed fears had been fabricated.  Given the family immediately changed their activity that was the source of the attacks and threat from the Al Da’wa party, and their location, it is reasonable to assume that the applicant and his brother faced little risk of being further targeted by the Al Da’wa party during temporary visits to another part of Iraq.

8. Since the overthrow of Saddam Hussein’s regime, the Al Da’wa became the dominant political force in Iraq’s new governments with three of its prime minsters being from the Al Da’wa Party.  Recent country information[9] suggests the Al Da’wa Party has become fragmented and is losing its overall political significance in the past two or so years. This further supports a finding that there would be little risk now to the applicant and his brother from the actual Al Da’wa Party.  However this does not mean that the applicant’s stated fear in his Protection visa application was fabricated.  If his experiences in Iraq are accepted his stated subjective fear of the Al Da’wa party is very understandable.  It was also found to have an objective basis by a department delegate who decided the applicant’s visa application.

   [9] See e.g. Hasan, H., 2019, Carnegie Middle East Center, “From Radical to Rentier Islamism: The Case of Iraq’s Dawa Party”, 16 April.

9. The applicant has presented persuasive evidence that his sole return to Iraq, three years after being granted protection in Australia, was due to his parents’ serious illnesses and his fears for their survival.  The Tribunal accepts that by going to a remote farm and not attracting attention the applicant was able to greatly reduce any risk to himself during a temporary stay in Iraq to almost nil. The Tribunal also considers it noteworthy the applicant made no further attempts to return to Iraq.

10. The Tribunal therefore accepts that the applicant took precautions to avoid harm on his one brief return to Iraq for a compelling compassionate reason.

11. The Tribunal notes the evidence that the applicant’s brother took similar precautions on his two returns to Iraq, namely staying at his uncle’s farm in [Location 2], only going to Basra and Az Zubair to take his parents for medical treatment, and of course no longer working at the mosque in Az Zubair.

    Parents’ Residence

12. The delegate has also particularised evidence from the applicant’s brother indicating that his parents are living in Az Zubair and are not hiding at a remote desert farm. That evidence was a medical letter from a doctor in December 2014 stating that the applicant’s mother was a local of Al Zubair. 

13. The Tribunal considers this evidence insufficient for establishing that the applicant’s parents were resident in Az Zubair at the time, or that this is an indication that the applicant’s past fears were fabricated. 

14. The applicant’s mother was officially a resident of Az Zubair in the recent past, and her official identity documents would likely state this.  Further, if she is in hiding in [Location 2] then she is unlikely to disclose to the hospital authorities that fact. It is therefore quite plausible that the hospital records would state she is resident in Az Zubair even if she wasn’t.

15. Further, given the parents are aged, unwell, and the father had stopped working at the mosque in compliance with the Al Da’wa party’s demands, even if the parents had resumed living in Az Zubair this is not necessarily inconsistent with the applicant’s claims of past harm and fears.

16. The Tribunal therefore does not view the doctor’s letter as evidence that the applicant provided incorrect answers in his Protection visa application.

    Brother’s Evidence

17. The applicant’s brother is recorded as having given evidence at his own Tribunal hearing that was inconsistent with the information he provided in his Protection visa application, regarding the claimed attacks upon him and his brother by members of the Al Da’wa party.  The most significant inconsistency related to the timing of events. He is recorded to have initially stated that he was kidnapped in 2010 and his brother was kidnapped in 2009.  He appeared confused regarding these dates as he referred to both incidents as being the trigger for his father’s decision in 2011 that he and the applicant should leave Iraq.  He also referred to his kidnaping as being the reason he stopped working at the mosque in 2010, however he also stated that it was in 2011 that he stopped working at the mosque.

18. It is quite possible that the applicant’s brother provided inconsistent information regarding the timing of critical events because those events did not in fact occur.

19. However the applicant has submitted that his brother’s evidence at hearing was impacted by his diagnosed mental health disorders which have been assessed to cause “significant lapses in concentration and memory”, particularly in times of stress.  The Tribunal also acknowledges the applicant’s brother’s lack of education and the passage of time since the events in Iraq occurred. The Tribunal accepts these factors could contribute to the applicant’s brother’s inability to accurately state the year of past events.

20. The applicant himself has provided clear and consistent evidence over the course of his visa application and visa cancellation processes regarding the claimed events that drove him and his brother to leave Iraq and his parents to move home.

21. While it remains of concern that the applicant’s brother struggled to provide an accurate account of the year critical events occurred, in view of the psychological evidence regarding the applicant’s brother the Tribunal cannot rule out that this was a result of his mental state, his lack of education and the passage of time, rather than fabrication.  The Tribunal is therefore not confident that the applicant’s brother was fabricating the events that based his and the applicant’s protection claims.

    Country Information

22. The available country information confirms that in 2011 there were still sectarian tensions in the Basra region with the Shia majority and Shia militias involved in acts against the Sunni minority.  While the country information does not specifically refer to Al Da’wa Party violence against Sunni Muslims the Tribunal accepts that the applicant and his family may attribute local Shia militia activity to the Al Da’wa party given its power and control in Basra, its past armed wing, and the various political linkages between armed groups and official parties. The Tribunal therefore finds that the available country information is not inconsistent with the applicant’s claimed fears at the relevant time.

23. The country information also shows how quickly the security environment in Iraq changes with 2015 being a time when the Sunni based Daesh/ISIS armies were taking control over territory in Iraq.  While the south of Iraq, being Shia dominated, was largely free of ISIS activity there were one or two reported attacks in 2015 in the Basra region.  Otherwise security concerns in the south related mainly to the increase in anti-corruption protests.  In this context the Tribunal considers that the previous risk to the applicant, namely from Shia militants, would be superseded by these developments at the time he returned to Iraq.  The country information therefore is not inconsistent with the applicant’s claimed fears in 2011.

    Conclusion on non-compliance

24. Based on the above reasoning the Tribunal is not satisfied that the applicant provided incorrect responses to questions in his Protection visa application, as particularised in the s.107 notice.  The Tribunal is not satisfied that the applicant did not have the fears he claimed at the time, or that he and his family lacked the adverse profile he claimed they had. The Tribunal does not consider that the applicant’s sole return to Iraq in 2015, or his brother’s return to Iraq in 2013 and 2014-5, or his mother’s doctor’s letter, or any other evidence available to the Tribunal, are sufficient to establish that the applicant provided incorrect information regarding his claimed fears and adverse profile in 2011.

25. For these reasons, the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

    DECISION

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Melissa McAdam
    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.