1932265 (Migration)

[2021] AATA 2615

1932265 (Migration) [2021] AATA 2615 (24 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1932265

MEMBER:Melissa McAdam

DATE:24 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 24 June 2021 at 2:14pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in protection visa application – previous humanitarian visa application under another name, sponsored by Australian citizen husband, not declared – forensic facial comparison and fingerprints – passenger cards show voluntary travel to home country – discretion to cancel visa – imputed political opinion – work associated with Iraqi government and foreign forces and agencies – general and specific threats by militant groups – humanitarian visa application in name of cousin, previously married to distant cousin – facial comparison inconclusive but fingerprint evidence incontrovertible – no admission of previous application – documentary and witness evidence establishing identity – evidence of travel to third countries, not home country – accompanied by distant cousin as responsible male relative – physical and mental health and treatment – country information – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 101, 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASE
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 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 delegate cancelled the visa on the basis that the applicant had not complied with the requirements of s.101(a) and s.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.

   Section 107 Notice, NOICC

3. On 22 October 2018 the Department issued to the applicant a Notice of Intention to consider Cancellation of her visa (‘the NOICC’), under s.107 of the Act.  In the NOICC the delegate set out the following:

   [In] September 2010 you arrived on Suspected Illegal Entry Vessel … and made claims to be a refugee.

   On 29 October 2010 you were assessed as meeting the criteria set out in Article 1A(2) of the United Nations 1951 Convention and 1967 Protocol relating to the Status of Refugees (Refugees Convention). The delegate was satisfied …  there is a 'real chance' you would be persecuted and subjected to harm if you were to return to Iraq on account of your claimed adverse profile against Al-Qaida and other militia groups due to your involvement with US citizens as [an Occupation].

   Based on the assessment, the Minister exercised his power under section 46A(2) of the Act to allow you to lodge a Protection visa application.

   On 24 September 2010 you applied for a Protection (subclass 866) visa. Within the application form 866 - Application for a Protection (Class XA) visa you provided the following information:

   At question 1 of Form 866 Part B, in response to the question "Give details of ALL persons included in this application" you responded:

   Applicant number 1
   Family name [the applicant – family name]
   Given names [the applicant – given names]
   Date of birth [Date 1]
   Relationship to applicant 1 SELF

   At question 3 of Form 866 Part B, in response to the question "Has any person named in Question 1 previously made any other type of application to the department (including a Parent visa)?" you ticked the box denoting "No."

   At question 8 of Form 866 Part B, in response to the question "Are there any members of the same family unit who are IN AUSTRALIA but are NOT included in this application?" you ticked the box denoting "No."

   At question 11 of Form 866 Part B, in response to the question "Do any of the persons included in this application and named in Question I have close relatives who are NOT in Australia at the time of application?" You ticked the box denoting "Yes" and responded "SEE ATTACHMENT"

   In the Family Composition attachment, you provided the following information:

Full Name		Date of birth	Place of birth	Marital status	Relationship to client	Current country of residence	Citizenship
Given	Family
[Mr A]	[Mr A]	[Date 2]	Kuat,Wasat, Iraq	Deceased	Father	Deceased	Iraqi
[Ms B]	[Ms B]	[Date 3]	Ammarah, Missan, Iraq	Deceased	Mother	Deceased	Iraqi
[Ms C]	[Ms C]	[Date 4]	Kuat,Wasat, Iraq	Married	Sister	Iraq	Iraqi
[Mr D]	[Mr D]	[Date 5]	Kuat, Wasat, Iraq	Married	Ex husband	Iraq	Iraqi

At question 1 of Form 866 Part C, in response to the question "What is your full name?" you responded:
Family name: [the applicant – family name]
Given names: [the applicant – given names]

At question 4 of Form 866 Part C, in response to the question "What other names have you been known by?" You did not provide a response.

At question 7 of Form 866 Part C, in response to the question "Date of birth" you responded: [Date 1]

At question 8 of Form 866 Part C, in response to the question "Place of birth" you responded:
Town/city: Kuat, Wasat  Country: Iraq

At question 34 of Form 866 Part C, in response to the question "Give details of all addresses OUTSIDE AUSTRALIA where you have lived for 6 months or more in the last 10 years" you answered "SEE ATTACHMENT."

In this attachment you provided the following information:

Date lived there	Month/year	Country	Address
FROM TO	09/2010 Present	Christmas Island	IDC Phosphate Hill
FROM TO	07/2010 09/2010	Travel to Australia
FROM TO	[Dates]	Iraq	[Address]
FROM TO	[Dates]	Iraq	[Address]
FROM TO	[Dates]	Iraq	[Address]
FROM TO	[Dates]	Iraq	[Address]
FROM TO	[Dates]	Iraq	[Address]

At question 41 of Form 866 Part C, in response to the question "I am seeking Protection in Australia so that / do not have to go back to" you answered "Iraq."

At question 42 of Form 866 Part C, in response to the question "Why did you leave that country?" you answered "SEE STATEMENT ATTACHED TO RSA APPLICATION."

At question 43 of Form 866 Part C, in response to the question "What do you fear may happen to you if you go back to that country?" you answered "SEE STATEMENT ATTACHED TO RSA APPLICATION."

At question 44 of Form 866 Part C, in response to the question "Who do you think may harm/mistreat you if you go back?" you answered "SEE STATEMENT ATTACHED TO RSA APPLICATION."

At question 45 of Form 866 Part C, in response to the question "Why do you think this will happen to you if you go back?" you answered "SEE STATEMENT ATTACHED TO RSA APPLICATION."

At question 46 of Form 866 Part C, in response to the question "Do you think the authorities of that country can and will protect you if you go back? If not, why not?" you answered "SEE STATEMENT ATTACHED TO RSA APPLICATION."

In the statement of claims, dated 24 September 2010 which you submitted in support of your Protection visa application, and referred to in questions 42-46, you included the following information: "I left Iraq because I received a threat-letter from Al-Quada on 8 June 2010. In this letter they stated that they will kill me because I am cooperating with the American forces. I worked at [a Workplace] in Baghdad... On 5 June 2010 after I left my job in the afternoon I was walking on the main street ([Name] Street) looking for a taxi to go home. I use to wear a scarf and a abayah and while I was waving at a taxi I saw a motorbike came from the opposite side and made a U-turn after they passed me and then approached me. Both of the two men on the motorbike's faces was covered. The one who sat on the back kicked me with his foot. When I fell over he started to kick me even more, He got off the motorbike and started to beat me up. He dragged me by the hair and scarf in the street. I was covered with blood running from my mouth and nose. He dragged me by the scarf and whiles this was happening I untied the scarf and came loose from his grip. He saw cars and coming from the other side and said: "let the Americans save you!" whiles standing with my scarf and abayah in his hand. I ran to the other side of the road. He kept on saying "let the Americans save you, you are going to die soon and deserve death."

… In the afternoon I went to the medical centre to get treatment, and told them the story and they got scared. My uncle said that they were scared and do not want to be exposed to the threat as these people might come and look for me at their house. My uncle told me that I am targeted and I should do something as they do not want to be targeted too. I went home the
next day and saw an envelope was hanging on my door. I found a letter and a fired bullet
(projectile) in the envelope...

I called my work and told them what happened to me. They advised me to stay away and don't show myself as I am targeted. I was in a state of fear. I used to go to my sister's house but that placed them in danger too...

I cannot go back to Iraq as my life is in danger. I received this threat, The Government of Iraq
cannot protect themselves how will they protect me? In Iraq you do not know who is your friend or your enemy. There is no government in place that has taken control of the security situation. I do not have anyone else anywhere in Iraq that can help me. My family is scared that they will be targeted too... Between 2005 to 2008 ten of my colleagues were killed by Al-Qaida and Al Mandi Army (Militia Groups) during sectarian war.

I cannot go back to Iraq I risk being killed. In Iraq the Government cannot protect me against Al-Qaida and other Militia groups. Due to my involvement with the Americans I am regarded as a traitor and a spy for the Americans."

At question 65 of Form 866 Part C you declared "I, [the applicant] do solemnly declare The information I have supplied on or with this Part C of Form 866 is complete, correct and up-to-date in every detail" and "I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled."

On the basis of this information and meeting all other relevant criteria you were granted your
Protection (subclass 866) visa on 27 July 2011.

Evidence of possible non-compliance -  Departmental Evidence
You applied for Australian citizenship on 22 September 2015. Integrity checks were conducted as part of the application process. The outcome of this process resulted in a potential match to another person known to the Department as [Ms E] (DOB: [Date 6]). Facial images of you and the person known as [Ms E] were referred for a forensic facial comparison. The findings of this forensic facial comparison were that the facial images of you and [Ms E] represent the same person.

You applied for an offshore Global Special Humanitarian (subclass 202) visa on 4 September 2008 in the name of [Ms E’s name used as applicant’s alias] (DOB: [Date 6]). This application was sponsored by [Mr F] (DOB: [Date 7]), an Australian citizen who you claimed was your husband. The visa was refused by the [Country 1] post on 5 July 2009 due to inconsistencies regarding the history of your relationship with the sponsor and therefore not meeting the criteria for the grant of the visa.

At question 2 of Form 842 - Application for an Offshore Humanitarian visa, in response to the question "Give details of the main applicant" you provided the following information:
Family name: [Alias surname]
Given names: [Alias given name]
Date of birth: [Date 6]
Place of birth: Town/ City: Missan
Country: Iraq

At question 3 of Form 842, in response to the question "Give details of all other people included in this application, "you provided the following information:
Family name: [Ms G surname]
Given names: [Ms G given names]
Date of birth: [Date 8]
Place of birth: Town/ City: Maysan
Country: Iraq
Relationship to main applicant: Daughter

At question 13 of Form 842, in response to the question "Give details of your parents, brothers and sisters and non-dependent children. Include half, step and adopted relatives" you provided the following information:

Name	Sex	Date of birth	Marital Status	Place and Country of birth	Country where they are now living	Status in that country
Your parents
[Mr H]	M	[Date 9]	Married	Missan Iraq	Iraq	Citizen
[Ms I]	F	[Date 10]	Married	Missan Iraq	Iraq	Citizen
Your brothers and sisters
[Mr J]	M	[Date 11]	Never Married	Missan Iraq	Iraq	Citizen
[Ms K]	F	[Date 12]	Married	Missan Iraq	Iraq	Citizen

At question 16 of Form 842, in response to the question "Have any people included in this application been proposed for entry to Australia by a person or organ/sat/on in Australia?" you
ticked the box denoting "yes" and provided the following information:
Name of proposer: [Mr F]
Relationship of the proposer to you: Husband
Address of the proposer: [Address 1]

At question 20 of Form 842, in response to the question "Give details of valid travel documents (e.g. Passports) and identity cards held by all people included in this application." You provided the following information:

Main Applicant
Passport number: [Number 1]
Country of passport: Iraq
Date of issue: [2008]
Date of expiry: [2016]
Issuing authority/ Place of issue as shown on passport: Baghdad

Other Applicants
Given names: [Ms G]
Passport number: [Number 2]
Country of passport: Iraq
Date of issue: [2008]
Date of expiry: [2016]
Issuing authority/ Place of issue as shown on passport: Baghdad

At question 22 of Form 842, in response to the question "For ALL the people included in this application list all the addresses where they have lived during the last 10 years" you provided the following information:

Address where you are living now	Date you started to live at this address	Given names of people included in this application who live at this address (if all, write 'ALL')
[Address] Baghdad IRAQ	[Date]	All
Previous addresses	Period at this address	Given names of people included in this application who live at this address (if all, write 'ALL')
[Address], Ammara, Maissan IRAQ	From [Date] To [Date]	All

The details provided in Form 842 of your application for a Global Special Humanitarian visa contradict the information provided in your Protection visa. This includes details in relation to your name, date of birth, family composition, identity documents and residential history.

You arrived in Australia under the alias [the applicant] (DOB: [Date 1]) as an IMA [in] September 2010. You subsequently lodged an application
for a Protection visa, dated 24 September 2010 and were granted a Protection visa on 27 July 2011.

Evidence of possible non-compliance - Passenger Cards

[In] September 2011 you departed Australia and re-entered [in] January 2012 using travel document [number 1]. On your outgoing passenger card when asked where you would spend most of your time abroad, you stated "[Country 2]" and indicated that your intended length of stay abroad would be 2 months.

On your incoming passenger card dated [January] 2012, when asked where you had spent most of your time abroad, you stated "Iraq." The total time spent offshore was 4 months.

[In] August 2012 you departed Australia and re-entered [in] November 2012 using travel document [number 1]. On your outgoing passenger card when asked where you would spend most of your time abroad, you stated "[Country 2]" and indicated that your intended length of stay abroad would be 30 days.

On your incoming passenger card dated [November] 2012, when asked where you had spent most of your time abroad, you stated "Iraq." The total time spent offshore was 3 months.

[In] May 2013 you departed Australia and re-entered [in] July 2013 using travel document [number 2]. On your outgoing passenger card when asked where you would spend most of your time abroad, you stated "Iraq" and indicated that your intended length of stay abroad would be 1 month and 10 days.

On your incoming passenger card dated [July] 2013, when asked where you had spent most of your time abroad, you stated "Iraq." The total time spent offshore was 1 month and 8 days.

Departmental records indicate that you have voluntarily travelled to Iraq on three separate occasions and have spent a cumulative period of approximately 8 months in Iraq since the grant of your Protection (subclass 866) visa on 27 July 2011. I note that the first time you voluntarily returned to Iraq was two months after the grant of your Protection visa.

Consideration of evidence
…

The information provided in support of your Protection visa was material to the determination that you were found to engage Australia's protection obligations. You claimed that your life was endangered in Iraq and having no assistance from authorities. However, you have voluntarily returned to Iraq on three separate occasions for a combined period of eight months since the grant of your Protection visa without any apparent harm or impediment.

I therefore consider this indicates you have provided incorrect information in your Protection visa application.

In your Protection visa application you claimed you were [the applicant] (DOB: [Date 1]), from Iraq, that you have never applied for a Protection visa for Australia before, and that you had no links, past or present, with Australia. You also claimed you had been divorced for 6 years and did not have any children.

It appears you have applied for visas to Australia using different identities because you applied for a Global Special Humanitarian visa in the name of [Alias].

Given you provided a certified copy of your Iraqi passport number [Number 1] in support of your Global Special Humanitarian visa application and failed to provide Iraqi travel documents supporting your identity with your Protection visa application or evidence of change in name, I consider your true identity is [Alias] (DOB: [Date 6]).

The information you provided in support of your Protection visa application was material to the determination that you were found to engage Australia's protection obligations. A facial comparison conducted by the Department indicates that [the applicant]
(DOB: [Date 1]), and [Alias] (DOB: [Date 6]) who applied for a Global Special Humanitarian (subclass 202) visa are the same person. Your application for a Global Special Humanitarian (subclass 202) visa was sponsored by [Mr F] (DOB: [Date 7]) your claimed husband, who is an Australian citizen and was refused on 5 July 2009. It appears you provided incorrect information in your application for a Protection visa in an attempt to conceal your Global Special Humanitarian (subclass 202) visa application and gain an immigration advantage.

1. In the NOICC the delegate particularised evidence of non-compliance in relation to the following questions on the 866 visa application forms:

   Form 866 Part C -    question 1; question 4; question 7; question 8; question 34; question 41; question 42; question 43; question 44; question 45; question 46; and question 65.

   Form 866 Part B – question 3; question 8; and question 11.

   Response to NOICC

2. On 9 November 2018 the applicant’s agent provided a written response to the NOICC.  It contained:

   -A submission by the Agent.

   -A Psychiatric Report, dated 27 February 2018, stating that the applicant has suffered from chronic symptoms of PTSD.  She also suffers from [Conditions].  She was recently diagnosed with [Condition] and received a course of chemotherapy.  She is diagnosed with major depression with psychotic features in addition to chronic PTSD and is on prescribed medication.

   -A [Mental health services provider] counselling report, dated 5 April 2018, stating that the applicant is quite isolated and not connected with her community. She was homeless and this has exacerbated her mental health symptoms resulting in increased panic and anxiety attacks and psychotic symptoms such as auditory hallucinations.  She is receiving medical support for significant reproductive health issues.

   -A letter from a hospital Social Worker, dated 30 November 2017 stating that the applicant has a significant trauma history, and suffers from forgetfulness and difficulty concentrating.

   -A letter from a hospital Clinical Psychologist, dated 30 November 2017, stating that the applicant has a history of complex psychiatric issues.

   -A further Psychiatric Report, dated 26 October 2017, stating that the applicant has an enduring mental incapacity which adversely interferes with her cognitive functions.

   -A note from an Oncologist, dated 12 October 2017, stating that the applicant is currently a patient of the medical oncology team at [Suburb 2] Hospital with a diagnosis of [Condition] for which she is receiving regular chemotherapy.

   -A schedule of the applicant’s medical appointments at the [Health services provider].

   -A doctor’s referral letter, dated 2 July 2018, stating that the applicant had presented with sleep problems and hearing her voice telling her to do things like sit outside and hit herself.  She has suicidal thoughts.  Her past history included pregnancy counselling in September 2011, depression in April 2012 and October 2013, asthma in May 2012 and June 2018, as well as [Conditions].  The doctor provided a list of the medications taken by the applicant.

   -A Discharge Referral dated 19 October 2017 for the applicant, recording a diagnosis of “PTSD” and “PC – auditory hallucinations”.

1. In the written submission the Agent outlines the following:

   The applicant is a Shia female born in Iraq. The applicant held employment since 2002 as [an Occupation] for foreign agencies and for [an Official body]. The applicant was subsequently targeted by militant groups. She was beaten and threatened by Militant group members. The applicant fearing for her life, was forced to flee Iraq seeking protection. The applicant arrived in Australia seeking protection to which it was granted on 27 July 2011. From the date of grant the department received information that the applicant allegedly returned to Iraq on 3 different occasions accumulating to a duration of 8 months. Moreover the department received information that forensic facial comparison concluded that
   the applicant prior to the lodgement of her Protection Visa had in fact applied for a Humanitarian Visa under the name '[Alias]'. On 22 October 2018 an NOICC was sent to the applicant due to her incorrect answers given in her 866 application based on both an apparent return to Iraq and her apparent prior lodgement of a Humanitarian Visa.

   Claims
   … The Applicant's maintains that her visa should not be cancelled for the following reasons:

   -The applicant never travelled to Iraq;

   -If forcibly repatriated to Iraq she would suffer persecution due to her previous claims;

   -The information received by the department regarding a previous offshore humanitarian visa is incorrect.

   -The applicant has successfully integrated into Australia.

   -

   It is for these reasons that the applicant believes that her protection visa should not be cancelled.

   Response to Particulars of Non-compliance

   … In response we provide that the incorrectly answered questions pointed out by the delegate do not accurately reflect the applicant's circumstances, and reliance on these points would result in error. …

   ... In response we provide that the applicant at all times did not enter Iraq. In reference to all the
   applicant's travel documents there are no travel stamps depicting the applicant's trip to Iraq. The only evidence the department has of the applicant spending time in Iraq is passenger cards where she wrote country spent most time abroad. Iraq'. In response to this we provide the applicant having difficulty in speaking English believed that the questions asked where she was from. This is an error due to difficulties in understanding the language and should not be held against the applicant when deciding her visa. At all times the applicant never returned to Iraq. She travelled to [Country 3] and [Country 2]. This is evidenced by her travel stamps and visas to [Country 3].

   Submission
   The Applicant relies on her previous claims regarding the persecution she has and will continue to face should she be forced to return to Iraq. We argue that his previous refugee claims continue to stand, as at no point did she avail herself of protection as she did not enter Iraq, nor did she apply for an offshore humanitarian visa, nor did her apparent return constitute incorrect answers in her application for refugee status. The delegate was incorrect to doubt the Applicant's claims on the basis that she did not fear returning to Iraq, thus all assumptions that his original statements must be either exaggerated or fabricated are incorrect on that basis.

   …
   Reasons against Cancellation
   Medical and Psychological Concerns
   Given the ordeal the applicant has faced, she has been suffering from depression, anxiety and PTSD Symptoms. We have attached a mental health assessment given by … a Consultant Psychiatrist on 26 October 2017. The report gives an outline as to the applicant's mental health condition, the circumstances causing the condition and the consequences resulting from this diagnosis. [The] Dr … outlines the ordeal the applicant has gone through, which has resulted in post-traumatic stress disorder and it has been advised against the applicant returning to Iraq. For a more detailed outline of the applicant's mental impediments please refer to the attached Psychologist Report. Attached we have also provided an array of medical reports, outlining other medical issues the applicant faces. Schedules of prescribed medications and appointments have been provided for your perusal. A letter … dated 12 October 2017 provides a diagnosis of [Condition] for which she is currently receiving regular chemotherapy. In that report it is also acknowledged that the applicant has been undergoing difficult times which impacts upon her psychiatric condition.

   Access to adequate medical care
   Given the above extensive medical documentation, it is unlikely repatriation to Iraq, would be an option in terms of access to adequate medical care in Iraq, and reoccurrence of certain symptoms. If she was to be returned to Iraq her mental and physical condition would deteriorate. The DFAT Country Report 2017 outlines that:

   'Iraq has a mixture of public and private hospitals, and primary health care is provided by both private and public clinics. Health infrastructure has suffered from decades of conflict. Even before the rise of ISIL, many primary health care facilities were under-resourced and many skilled health care workers had moved abroad or to safer areas of Iraq. Health services are limited, particularly in areas affected by conflict, and areas with large numbers of internally displaced people (IDPs). The United Nations Office for the Coordination of humanitarian Affairs (OG'HA) estimates 7.3 million people who need health services lack access to them.’

   A further article outlines the need for trained psychologists in Iraq is in demand and that barriers such as stigma continue to make it difficult to gain access to adequate mental health care.

   'The psychological and emotional scars of war in Iraq are immense and thousands of people need mental health assistance. Mental health is a key component of many Médecins Sans Frontiers (MSF) projects in Iraq. We have teams of qualified medical doctors, psychologists and counsellors who provide vital care and support for moderate and severe cases, including post-traumatic stress syndrome (PTSD), depression, schizophrenia and severe anxiety. '
   People's needs for mental healthcare are tremendous, yet Anbar governorate is a neglected area, with most attention currently focused on Mosul. But, as with Mosul, the population of Anbar has suffered intense violence over recent years, leaving thousands of people with physical and psychological scars.

   "The need for mental health support is obvious when I see the number of patients and the severity of their trauma, "says Melissa. "However, there are many challenges, including the stigma that surrounds mental illness. Many people who would benefit from treatment will not join the programme for fear of what the community might think. There is also a shortage of psychiatrists and psychologists in Iraq, so we put a lot of effort into training our Iraqi staff. Some of them also have their own trauma to handle. They are from the same region and have been through similar things as the patients."

   In a country where people have tremendous needs, but where there is a shortage of mental health professionals and stigma around mental illness, developing a strong psychological support system will take time and effort, but will be essential for Iraq's future health.

   In an Article discussing Iraq's mental health problem, explains the difficulty into obtaining adequate psychological treatment in the wake of turmoil the country has undergone:

   'Elektra Noutsou, until recently mental health activity manager for Médecins Sans Frontières Switzerland in Baghdad, told JR[N that despite plenty of warzone experience as a psychologist, she was shocked by both the level of need and the forthrightness of patients in Iraq.' "People are suffering, and (heir suffering has led them to go to our services, "he said. "We receive many patients on a daily basis." 'There are simply not enough trained clinical psychologists in Iraq to deal with the needs. The country itself doesn’t offer clinical psychology as a degree, although the KRG does have courses.' 'In addition to MSFs learns and those connected with other aid agencies, there are only around 80 clinical psychologists working in Iraq and Iraqi Kurdistan, up from 47 in 2010, according to official figures. There are more psychiatrists some trained in techniques like Cognitive Behavioral Therapy - but they are overworked too.' 'Doctor Ahmed al-Rudaini, an Iraqi health ministry spokesman, agreed that mental health care was "very important these days ", but it was clearly not his government 's main priority' '"We are focusing on saving people 's lives and providing surgeries and first aid treatment in the areas of operations [against IS], rather than focusing on psychological issues" he said.

   From the provision of the above country information and the psychologist report, it is evident that if the applicant was to return to Iraq, given her mental health history, she would be placed in a position of harm and her subsistence would be gravely hindered. The applicant would be unable to receive adequate treatment required to keep her mental condition at bay and if she were to return to Iraq her mental condition, as stipulated by previous medical reports will deteriorate. This is completely inconsistent with what the delegate exclaimed. The delegate provided country information outlining that all citizens have of Iraq have access to medical, then provided country information stipulating a new hospital has been built with 40 beds.

   Given previous events Iraq has undergone it is completely unlikely that the applicant would have adequate access to medical as provided for by the delegate, and that this inadequate access forms a factor in deciding whether non-refoulment obligations will be engaged.

   Further Adverse Information from the Department

2. On 13 November 2018 the delegate wrote to the applicant requesting her response to the following further information:

   On 19 October 2018 the visa holder responded to a request for contact details. In response, she provided the following details:

   [an address in Sydney suburb]

   A search of an incoming passenger card belonging to [Mr F] …
    indicates that he resides at [the same address in Sydney]. …

   I also note that in her NOICC response, the visa holder claims that she has not previously lodged an application in the name of [Alias], however she currently resides at the same address as [Alias’] claimed husband, [Mr F].

   It should also be noted that many of the visa holder's movement records coincide with those belonging to [Mr F]. …

   Passenger cards dated [November] 2012 indicate both the visa holder and [Mr F] were residing at [another address in Sydney] while passenger cards from [September] 2013 indicate both the visa holder and [Mr F] have been residing at [a third address in Sydney].

   I note that in the visa holder's NOICC response she has provided letters from medical professionals and 7 counsellors stating that she resides by herself in privately rented accommodation in [Suburb 1] and was recently evicted for failure to pay rent on time. She also claims to have been homeless and forced to sleep in parks. However, Departmental evidence indicates that she is currently residing in … with her husband, [Mr F].
   Furthermore, in the visa holder's NOICC response she has indicated that she is undergoing chemotherapy for a [Condition]. It should also be noted that medical reports provided by the visa holder include other allusions to pregnancy, strengthening claims that she is residing with her husband, [Mr F].

3. Applicant’s Response to further Information

4. On 24 November the applicant provided a written statement to the delegate, containing the following:

   I was born in Iraq on [Date 1]. I haven't been known by any other name. I haven't used any other name or any other date of birth. Attached is my birth certificate and Iraqi ID from 2004 confirming my name and my date of birth.

   I did not apply for a humanitarian visa to Australia before my arrival to Australia. I do not have any knowledge of the humanitarian visa application mentioned in your letter. I didn't use the name [Alias] or [Alias – alternative form] anywhere that I know and remember.

   I know [Ms E, same name as Alias] or known as [Ms E – alternative form]. She is my cousin from my mother side and she is married to [Mr F]. She is the daughter of my aunt (mother's sister) and she is like sister to me. She also looks like me and everyone thought we were like identical twins but she puts on some extra weight now. We grew up together till she married [Mr F].

   [Mr F] is also my distant second cousin from my mother side. He married three times and has three wives including my cousin [Ms E]. He is married to a lady named [Ms L]. I was told that they got married in 2003. They have two children from their marriage namely: [Child 1] and [Child 2].  [Mr F], [Ms L] and their children live at … .  Recently my cousin [Ms E] told me that [Mr F] has married again to another lady in Iraq namely [Ms M]. And due to this marriage the relationship between [Ms E] and [Mr F] is effected very much as she did not agree with him marring someone in Iraq while has one wife here being [Ms L].

   I am telling you all this in confidence and I do not want [Mr F] to know I informed you about his wives and his life.  If he finds out I informed you I will be in trouble and in danger. I can’t go against him. I know he did wrong things but I can’t say anything against him. He helped me in most of my travels being a good company and helped me as I couldn't speak English. However. he did mistakes and wrote wrong information into my boarding or immigration card. I think he did mistake. I think he didn't do it intentionally. I do not want to judge him. I just want to tell you the truth and nothing but the truth.

   I am single and I am a Shia Muslim. I was married before in Iraq and later divorce before I enter Australia. My attached Iraqi ID document also confirms that I am a divorcee. [Mr F] is not my husband but unfortunately like brother to me as he married my cousin [Ms E]. He is a "moharam" to me. Moharam means a person you can be in contact with him under our religion but can't marry that person.

   I did travel out of Australia and [Mr F] was in the same flight with me as he was a moharam to me but I did not travel to Iraq. I can't travel to Iraq due to the fear of persecution.

   Due to persecution in Iraq and escaping Iraq, my journey to Australia by sea and my long detention in Australia, I developed a major depression. I did not know many people in Australia and I couldn’t find a job in Australia because of my language and this is why I started looking for a job in [Country 2]. I travelled to [Country 2], [Country 4] and [Country 3] during this time. I did not travel to Iraq. My airport immigration cards have been filled by others and [Mr F]. They mistakenly printed Iraq as I haven't travelled to Iraq.

   I have been living at … for about four years. Once I was evicted from there and I was homeless for some time and even slept in parks. Some friends helped me and I started living there again. I live there alone. I am still living at the same address and I live there alone. [Mr F] never lived in this address or with me in anywhere. [Mr F] always lived with his wife [Ms L] and his children. I don't know why he put my address in his immigration card and not his own address.

   In relation to … address, I never lived in this address. This is [Mr F]'s friend address and from memory his name [Mr N]. When I lived in [Suburb 3], it was a shared accommodation at … Street. I was living there alone but there were five rooms in that property and every room was occupied by people that I did not knew. Previously I also lived in a unit at … with another person called [Mr O]. I rented a room from [Mr O]. I think the unit number was 7 to the best of my memory. I was living in these places alone all that time. I never lived with [Mr F].

   I was married in Iraq to a man named [Mr D] and I have been divorced from him religiously and legally in Iraqi court. Attached are my religious and legal divorce papers to confirm this. Further my old lDs documents also confirm that I am divorced.

   I escaped Iraq due to persecution alone and while I as single. I entered Australia as a single woman and I am still single. I haven't married yet anyone including [Mr F]. I am still single and living as single alone.

   In relation to the photo match. I am sure they are not mine as it doesn't make sense that [Mr F] provide my photos instead of his wife’s photos ([Ms E]). I haven't seen the photos but I am sure they are not mine as I did not provide them to immigration and I am not [Mr F]'s wife. [Ms E] is [Mr F]'s wife and she is my cousin and very identical to me. I can reasonably conclude that they are [Ms E] 's photos and not mine. And because she is very identical to me as we are cousins and our mothers are sisters, the computer software connected her with me. However I know computer made a wrong finding but I do not blame computer for it as we are very identical to each other and almost the same but she is much younger them me. Computer software are designed and made by human being and they often allow mistakes, make errors and wrong findings. We human do mistakes and allow errors. Therefore, the computer made by human will definitely makes errors.

   It was not pregnancy that is right, it was [Condition]. I was myself surprise with that news. Clinical urine test shows positive for pregnancy when there is a [Condition] develop in a woman uterus while not pregnant. And the woman feels like pregnancy. [Condition] can he benign and can be malignant/cancerous and this is why in my case they treated it as a malignant and I received 6 months chemotherapy for that.

   I don't think I did anything to be punish. I am a human being and a woman at risk in my home country Iraq. I have fear of return to Iraq and can't go to Iraq with any Cost. My English is poor but now I decided to improve my language as I can see all the trouble. misunderstanding and mistakes had occurred due in the lack of ability to read, write and speak English. If my English vas good all this won’t happened.

   Further I am very ill and I need psychological and medical assistance. I have been already through various traumas in my life. That damaged me and my health. I have spent about a year in detention in Australia without the commission of any crime and being assaulted while in detention. I suffered severe injuries for what I was treated in hospital. I have being imprisoned for a year just for being a victim of persecution in Iraq and entered Australia for my protection and for survival. I am a human being and I am entitled to basic and fundamental human rights. I am a protected person under the law. I was recognised as refugee under the UN Geneva Convention for Refugees. I have been living in Australia for about ten years. I am a law obeying person and did not do anything wrong in Australia or anywhere else.

   I am an educated woman and a person of good character. I am ill that is because of all those issues which had occurred in my life as mentioned above. And that is not my fault but bad luck and being unfortunate.

   Being a single woman without work or stable financial support is not easy. The benefits Centrelink pays is not enough when someone is paying rent. I am trying to turn my life around and now this visa cancellation and associated stress and pressure is killing me. My health has been going down the hill since this visa cancellation issue is brought to my attention. Those issues raised in your letter are serious issues looking at them from your position while you are not aware of the truth. No matter how real they look from your position but the truth is that they
   are all circumstantial and speculative, and not real facts. Everything is based on the dealings of' others or done on my behalf due to my language inability and not my intention.

   I truly believe that it is unfair, unjust and inhuman to cancel my visa. I have nowhere else to go. It will be better Australian government execute me here in Australia before they cancel my visa. Or it is better to kill myself and put an end to this uncertain life. I kindly request your office not to cancel my visa and let me live in peace as free a human being. Australia is my home and my country. Australia and its people gave me shelter and new home when I needed it the most. I love Australia and its people and I can do anything for Australia and its people.

1. The applicant also attached several non-translated documents in the Arabic language, most of which contain a passport photograph style photograph of a woman.

2. On 27 November 2018 the applicant provided translations of the Arabic language documents submitted. These are:

   -A document entitled ‘Court of Personal Status in [Location]’, dated [November] 2001.  It refers to a court hearing from [Mr D] and his wife [the applicant], verifying their identities, and confirming their divorce.

   -A document entitled ‘Republic of Iraq Certificate of Iraqi Nationality’, dated [December] 2007.  It states that [the applicant] whose photo is affixed has acquired Iraqi nationality under Article 3/A of the law of Iraqi Nationality. It refers to her being born in Kut in [Year 1], her father’s name is [Mr A], and her mother’s name is [Ms B].

   -A document entitled ‘Personal Identity Card’, issued on [October] 2006 by the Iraqi Ministry of Interior, in the applicant’s name.  It states she was born in Kut/Wasit on [Date 1] and provides her father’s and mother’s names.

   -A document entitled ‘Court of Personal Status in Kut’, dated [December] 2001.  It refers to the grant of divorce to the applicant and her husband with the divorce decision becoming final [later in] December 2001.

   Further Adverse Information from the Department

3. On 14 May 2019 the delegate wrote to the applicant requesting her response to the following further information:

   On 14 May 2019 a fingerprint comparison was conducted in relation to fingerprints obtained from the offshore Global Special Humanitarian visa application belonging to [Alias] and fingerprints belonging to [the applicant], taken on 09/09/2010.

   As a result of this examination, the fingerprint specialist concluded that fingerprints belonging to [Alias] and fingerprints belonging to [the applicant] were made by the same person.

   Furthermore, it has been noted that there are severe inconsistencies amongst documents provided by the visa holder to the Department to support her claimed identity of [the applicant]. This includes the following variations:

   Onshore Protection visa application documents:

   Translated copy of [University] Bachelor Degree graduation certificate of [the applicant], dated 16 August 2003.

   [Official Body] member card [number] of [the applicant].

   [International agency] certificate of participation '[Training course 1]' for [the applicant], dated 2007

   [International agency] certificate of participation '[Training course 2]' for [the applicant], dated 2007

   [International agency] certificate of completion '[Training course 3]', for [the applicant], dated [August] 2009

   [International agency] certificate of completion '[Training course 4]', for [the applicant], dated [December] 2009

   [International agency] certificate of completion '[Training course 5]', for [the applicant], dated [June] 2010

   [Foreign government department] letter dated [December] 2005, titled 'Certificate of Appreciation', by [Mr P] regarding work with [the applicant]

   Additional identity documents provided in response to NOlCC:

   Electronic copy and translation of Iraqi identity card [number 1] issued [in] October 2006, listing the given name: [The applicant – given name]; surname: /; father's name: [Mr A]; mother's name: [Ms B]; date of birth: [Date 1]; place of birth: [Location]/Kut Wasit.

   Electronic copy and translation of Iraqi nationality certificate [number 2], issued [in] December 2007 of [the applicant]; place and date of birth: Kut/[Year 1]; father's name: [Mr A]; father's place of birth: Kut; mother's name: [Ms B]; mother's place of birth: Kut; religion: Muslim.

   Untranslated electronic copy of Iraqi identity card bearing [the applicant]'s image, purporting to be [the applicant]'s issued in 2004.

   Untranslated electronic copy of Republic of Iraq [Official body] member card bearing [the applicant]'s image, in the name [the applicant].

   Electronic copy and translation of Court of Personal Status in [Location] [number]/2001, dated [November] 2001 regarding the divorce of husband [Mr D] and wife [the applicant].

   Electronic copy and translation of Court of Personal Status in Kut [number]/2001, regarding the marriage contract issued [in] January 1986 and divorce of [Mr D] and [the applicant], with the divorce becoming final [in] December 2001.

   While name variations as a result of phonetic translations are common from Arabic to English language, it is noted that the visa holder's alleged [surname]  is not listed in any of these documents.

   The Department of Foreign Affairs and Trade Country Information Report Iraq, dated 9 October 2018 advises that fraudulent documents are commonly and cheaply available and that genuine documents obtained through fraudulent means are also common, mostly obtained by paying bribes to officials.

4. On 5 June 2019 a newly appointed Agent for the applicant submitted a Statutory Declaration from the applicant in which she alleges that her former Agent had been sexually harassing her and sexually assaulted her. She also submitted a copy of a Complaint Form lodged with the Office of the Legal Services Commissioner against the former agent.  The newly appointed Agent requested further time to submit the applicant’s response to the latest information.  The delegate responded that she was unable to provide the requested time extension.

5. On 11 June 2019 the applicant provided a further Statutory Declaration to the delegate. In the Statutory Declaration she states that she can't explain how her fingerprints and her cousin [Ms E]’s fingerprints are the same. She doesn’t know [Ms E] well. She doesn’t know if [Ms E] has applied to come to Australia. The applicant asked her sister about this, but her sister didn't know.  She has never done fingerprints for someone who is not her.  The only fingerprints she has done in Australia was on Christmas Island, and for the police check from the embassy in Australia in connection with citizenship. Her recollection is that she didn't provide any fingerprints during her trips outside Australia.  She is at a loss as to explain how her fingerprints ended up on [Ms E]’s application. If [Ms E] has submitted the applicant’s fingerprints fraudulently, the applicant does not know how she would have done this.  The applicant also provides a detailed explanation for the variations in the spelling of her names.  She also stated that in Iraq a fourth name, such as her name ‘[the applicant – surname]’, is not commonly used. The fourth name indicates whether a person is Sunni or Shia. Her fourth name "[the applicant – surname]" indicates that she is Shia, which is why it is not used commonly in Iraq for her.

6. The applicant’s agent also submitted updated medical and counselling reports regarding the applicant, which outlined her major depression with psychotic disorder, and recurrent admissions to hospital due to psychotic episodes.

   Delegate’s Decision

7. On 11 November 2019 the delegate decided to cancel the applicant’s visa.  She found that the applicant’s true identity was [Alias] with date of birth [Date 6]. She found that the applicant had provided incorrect information in her Protection visa application.  She found that Australia does not have non-refoulement obligations to the applicant. The delegate considered that due to the significant non-compliance by the applicant the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

   Information to the Tribunal

   Pre-Hearing Submission

8. On 22 April 2021 the applicant’s Agent submitted the following material on behalf of the applicant:

   -A written Submission from the Agent

   -A further written statement from the applicant, dated 20 April 2021.

   -A Medical report from [Dr Q], dated 16 April 2021 regarding the applicant.

   -A report from Consultant Psychiatrist & Psychotherapist , [Dr R] dated 17 April 2021, regarding the applicant’s mental health.

   -A report from [Mental health services provider], dated 9 April 2021, regarding the applicant’s mental health.

   -A Certificate of Iraqi Nationality for [Mr A], with English translation.

   -An Iraqi Personal Identity Card for [Ms C], with English translation.

   -A Certificate of Iraqi Nationality for [Ms B], with English translation.

   -A letter from the Iraqi Department of Information Office Affairs, dated [March] 2021, confirming the residence of [Ms E], with English translation.

   -A general Power of Attorney dated 24 March 2021, granted by [Ms E], with English translation.

   -A name verification letter for [Ms E], from the Iraqi Department of Information Office Affairs, with English translation.

   -National Identity Card for [Mr S], with English translation.

   -An Iraqi Public Registration Entry for [Ms E], with English translation.

   -An Iraqi Personal Identity Card for [T], with English translation.

   -An Iraqi Personal Identity Card for [Mr U], with English translation.

9. In the applicant’s written statement she sets out the following:

   My name is [the applicant], an Iraqi citizen and I was an Australian permanent resident through the protection visa subclass 866 visa. I was born in the city of Al-Kut on [Date 1].

   Today I am writing this statement in support of my case with the AAT and to comment on the cancellation of the permanent residency.

   I was shocked when I heard that there was a mix up of my documents at the Department of Home Affairs with [Mr F]’s application, the one he submitted in 2008 to get the refugee visa for his wife [Ms E]. The Department gave a negative decision and refused that application because they were not satisfied that the relationship between the applicant and the sponsor was genuine, the application was refused on 05th of May 2009.

   The odd thing that I was dragged to this mess by the Department of Home Affairs as they claim that the picture of the applicant [Ms E] matches my own picture, and the Department insisted that I am the one who submitted this application not [Ms E].

   I have tried in the past few years to convince the Department of Home Affairs that there is nothing that connects me with [Ms E], and that the Department is mistaken me with [Ms E] and think that I am [Ms E] and [Ms E] is [me].  This is a huge mistake the Department of Home Affairs has fall into and lead to my visa cancelled, the visa that I held for about 10 years.

   This should prove my loyalty and honesty considering I am a woman who lives with all these illnesses, had her life teared apart and wasted her future living among doctors and the chemotherapy to fight the cancer that is killing my body, in addition to the psychological suffocation and the psychological treatment am taking as I am one the victim of this fear and horror that am living, which prevents me from sleep. I’ve become a prisoner to this unfair life, without any future nor a specific time when I will die. I have left everything for God and humanity, as I am a weak person living alone without a husband since we broke up and got divorced in 2001, I left everything and every compensation to my ex-husband hoping to get peace and escape the marriage persecution and that lethal life.

   Furthermore, against all of these conditions that led me to leave marriage life and give away all my rights, I’ve become psychologically ill, cannot stand anything about marriage and I’ve become against it. I get frightened any time I hear the word “love”, because I truly believe and live the meanings of these words, which are just lies.

   This is what stopped me from getting married again and left me a prisoner of this lonely life, seeking the help and care from any person with the condition that this won’t led to any kind of marriage or engagement. Because if I only hear the word getting married I get frightened and I will be filled with hate, because I will start imagining the disaster that are going to happen after marriage.

   This is why I was too frustrated from the Department’s accusation, as they consider me the wife of [Mr F]. I have tried to represent my psychological situation and I’ve submitted all the possible evidence, but the Department has insisted that [Ms E] and I are one person with two forged names, which [Mr F] tried to take an advantage of this by asking the Department to issue me a visa that I’ve entered Australia by him.

   By this, I think the Department has doubled the mistake with formulate the rejection by:
   1- The Department hasn’t thought about it?! Like why would [Mr F] tried to get me to Australia under the name of [Alias – same name as Ms E], even I am a fine women with a great political back ground in Iraq and I was a member of [an Official body], and I have great relations with the foreign forces especially the United States of America, moreover, submitting the application with my truely name ([the applicant]) would make more sense and acceptance, “if that was me who submitted the application”.

   The Department has made a bigger mistake as they insist of their reaction, they rejected [Mr F’s] application with [Ms E] in 2009, as the Department claims that they are not convince about how strength is the relationship between them and if it would last. However, after many years they claim that I am [Mr F]’s wife based on imagination and that we hided our relationship from them. This is a big contradiction and the Department is fully responsible of making this mistake at least in one of these two decisions.

   2- [Mr F] submitted the application for his wife [Ms E] back in 2008 and after a year of assessing the application, it was rejected by the department, and the weird thing is that I arrived to Australia in 2010, and then I submitted the application of visa subclass 866 and after around a year of assessing and questioning, the Department has decided to granted me visa 866 because they were satisfied that I am a person of whom Australia must protect.

   The weird thing is that the Department granted me the protection visa has left the thing for more than ten years and then decide to cancel my visa claiming that I wasn’t honest, and I was denying my truth identity “that I am [Alias]”.

   Even though the government and all of its department have a long time history of information and political and informational auditing, and it does not make any sense to come later after all of these years to claim that I have breached the law including the Migration Act.
   I believe that the department is morally and by law responsible to inform me with all the information they have since the day I arrived here, not to hide it from me and the other people who helped me with my case and who gave me the protection visa.

   I am living in this great country since 2010, and the rights that I do have here I won’t ever understand them back at my original country, not even with the democracy regime that was brought by the Foreign Forces including The Untied States of America and Australia.
   I have become through all these years an Australian citizen, I cry to any disaster effect the people in my new country Australia, and I have the feeling of beloved and love this country, hold to the affection and sincerity and working for its benefits.

   I have done no mistakes or any felony. I still believe in justice and multicultural, even that my health condition is getting worse.

   3- To show the truth and to prove the mistake the Department has done, I submitted all the documents and the legal proves that shows I’m [the applicant] not [Ms E]. And that I have never married [Mr F] and we haven’t ever lived together under one roof, not here nor back at Iraq.

   I have attached a photo of [Ms E] which I’ve got from her, and also some legal documents that are issued from Iraq, which show [Ms E]’s name, photo, and her signature. And of course, all of these documents and photos obviously prove that they are for [Ms E] and not for me.

   I have also attached some certificate and identification documents for my father and mother “may they rest in peace”, that prove their date of birth and the difference between my mother [Ms B’s] date of birth which was in [Year 3] and [Ms E’s] mother who was born in [Year 10].

   Furthermore, I attached some photos of my sister [Ms C’s] citizenship and also my uncle [Mr S].

   And of course all of these documents can prove that I am [the applicant] and not [Ms E], even that we are related as we both hold the same last name ([Surname]), which has a long time history in Iraq.

   4- My relationship with [Mr F] was all about being related, as he is from the same family and especially that he is my cousin. However, for reassuring, my decision of leaving Iraq and coming here to Australia came all from me after I divorced my ex-husband and lost my rights and my family’s support, because he was my 1st husband who also holds the same family name, so he is consider better than me to them.

   Because of the above, it’s the 1st time I ever mention the terrorism that I was faces in when I got divorced and the psychological worriness. It did force me to flee from Iraq without mention it to anyone, by taking all the risks and the danger of this trip using boat that nearly sunk.
   Moreover, I prefer taking that risk on going back to this manly community among my family and our retarded community.

   I was staying at [Mr V] place and his family who knew me from Iraq when I received my Australian freedom and protection and I preferred to stay away from [Mr F]. [Mr V] came to the detention center in [Location 1] and bailed me out. I stayed for a long period of time at his place till I managed to get myself together especially back at that time, I was sick and my psychological condition wasn’t at the best. [Mr V] and his wife have helped me to recover and taught me how to coop here.

   While I was at [Mr V] place, [Mr F] came with [Ms L] and her parents [Child 1] and [Child 2] to visit me.

   That visit was the first time I meet with [Mr F] in Australia, as he tried to take care of me after he knew about my hard medical and psychological condition in Australia. He started to company me with my overseas trips as he was afraid of the possibility of me having a breakdown and that I will need someone to help me. And during that time while he was taking care of me, [Mr F] and I traveled three times to [Country 3] in 2011, 2012 and 2013. Back then I was in dangerous health condition and barely can breathe, I thought I will feel better if I left to [Country 3], as by being around a community that is close to mine and especially that my sister [Ms C] was staying there after she escaped from Iraq, the truth should be told, being with her was better for me to support me emotionally, after being alone in Australia and being at that detention camp, which has affected my life. What I have encounter from being hated and beaten have left marks at my body that till this day heart. In fact, I was trying to escape from the devastating life that I lived when I was locked in [Location 2] detention, I faced months of bad treatment and physical and psychological persecution.

   I want to confirm that [Mr F] have never ever been a husband to me nor a lover, and there is nothing between me nor any sexual intercourse accrued. And this is known by all of our close friends from the Iraqi community. What [Mr F] doing is consider Moral duties as he is one of my relative and his responsibility toward me as a man from the Iraqi community.

   In addition, [Ms L] who is [Mr F’s] partner knows well my situation and what kind of relationship [Mr F] and I are having. Also [Ms W] who is selected by the Department of Social Affairs as my carer, knows well friendship between me and [Mr F] through the years she was helping me.

   Unfortunately [Mr F] have done a tribal mistakes when he filled the forms by himself that we were at Iraq. And I don’t want to put the pressure on [Mr F] nor on anyone else who have done these mistakes, because it is an old matter and I don’t have the full knowledge to write it down and why??

   In fact, what I am trying to prove to the tribunal is that I have not visited Iraq since the day I left it in 2010 and I am not regretting it, and the frightens that I have mentioned to the Department about the reasons why I came to Australia is still inside my heart and always cross my mind and ruined my peace and keep me alert, even with my all love to Iraq, however, I am afraid from being forced to go back and I hate the whole idea. The danger I am facing is not only caused by the Al Qaida groups and ISIS, but also the lack of security, controlling the militia and above all of that is my tribe’s revenge and it is exacerbation in Iraqi community, and to neglect women parts on the society especially the divorced one. This might put me in a place where my tribes will choose what to do with my life, because according to them I ran away and brought shame to the tribe, since I fled alone by myself to Australia and facing detention to become a refugee in Australia.

   He even encouraged me to go to [Country 3] seeking treatment and to see my sister too, away from our tribe and homeland, which till this day couldn’t find a law that can protect citizen and especially Iraqi women.

   I sincerely apologies to the mistake we have done filling the traveling forms as it wasn’t intentioned. However, the Australian passport is clear and there is no Iraqi stamps on it, and all the [Country 3] travailing visas that I had are obvious shown at the passports, and there is one clear [Country 3] stamp. However, [Country 3] has allowed the Iraqi and maybe some other nation to have the stamp at another piece of paper rather than their passport, so they won’t face any trouble because they entered [Country 3]. I personally have some believes that I will be interrogated by the Department about my trip to [Country 3] and what were my reasons to go there, as it might be a hostile country.

   The truth is there are lots of people who hide the [Country 3] stamps and refuse to mention that they went there. Maybe showing the traveling card to Iraq is away that Iraqi used to use? But I have never used it and I have never given and misleading information when I arrived in the airport here in Australia.

   So, I submitted these two travel documents to the AAT requesting to check them thoroughly and happily I allow them to check if I went to Iraq, through the deep relation between the governments in Australia and Iraq, and I take full responsibility.

   However, if they haven’t checked any other things, as I have clearly mentioned I only went to [Country 3], as my the two Australian travel documents show.

   Refereeing to what I have mentioned above, it was obvious that since the day I was divorced from [Mr D], I was forced to live under my family rules according to the tribes’ law, and I didn’t have any kind of relationship, not a Boyfriend nor a Husband.

   At the end of the day, I found myself incent from all the mistake the Department has fallen into according to s101, and I reassure that I haven’t had the idea of taken [Ms E]’s name, and all the documents that I have submitted prove the huge mistake the Department have done. I am working and making good income back in Iraq, which mean I can get the Australian visa if I want to. However, the reality is that I had to stay in Iraq till 2010. And if it wasn’t for the war and my psychological issue, I would stayed in Iraq till this day working in management field or maybe something else.

   The Department have tried to jump into different topics, which I think it is unsuitable to go through, like the pregnancy issue, as the Australian law is clear and merciful, and I can’t find any relation between this matter and my protection visa obligations. However, the important part is I have not preached any of its law and none of the acts apply on my case, as I proved before, I entered Australia as a divorced woman and not married, and till this day I’m still holding the same status.

   According to that, I put myself before the AAT’s justice to decide my fate, as I am a victim without any future and very sick, asking for medical and psychological security. I will be in danger if I had to go back to the country that I left forever and frightens is controlling my thoughts of what might happen if I had to go back.  

   The Iraq is teared up and the ones who are in charge are destroying it, even if it cost them all the Iraqi’s lives. There is no security nor a government that at least can claim to provide security for Iraqi people.

   The news about killing, kidnaping, looting, local rebellions and getting down the governorate leaders are trading information to the global media, and all the explanation proves that the Iraq is lost in an international political sectarian conflict that has no goals. In addition, giving the power to the militias and the tribes have put my situation and all other people under the hands of those people who proved they are bandits and above the law.

   Therefore, I will take cover by the protection that I have received, and I believe in staying committed to it. All the objections of protecting me are still qualitative issue that the Department was lost on its changing, it kept me for 10 years enjoying the Australian laws and its morals, so I request protection.

   Tribunal Hearing

1. The Finnish Immigration Service report, “Overview of the Status of Women Living Without a Safety Net in Iraq” 22 May 2018, states the following:

   The community-based culture in Iraq has a major influence on the individual’s situation. Men have the main responsibility for their families and family honour, and most women are dependent on men for cultural reasons. Although there has been some change in attitudes, women’s lives are restricted by cultural norms. Women also face discrimination in the labour market and education. Women who violate these cultural norms can become victims of so-called honour violence. Living alone is not generally accepted in Iraq because it is considered inappropriate behaviour. Women can also face other legal infringements. In practice, a single woman has very poor chances of making a living independently.

   … Iraq is fundamentally a tribal society. Traditional tribal values, such as the honour of an individual or a family (sharaf) and solidarity towards one’s family or clan (‘asabiyya) have a strong bearing on social customs and the political culture of the country. Despite the existence of a civil justice system, practices deriving from traditional tribal justice (‘urf) survive in rural areas, in particular, as well as in some urban areas.

   …  The vast majority of honour-related offences are committed by men against female relatives, although men occasionally fall victim to such offences. Honour violence is rooted in the concept that the honour of a family depends on its female members, whose movements and sexuality must be controlled in order to avoid shame being brought upon the entire family. Honour violence is found in areas where religiously conservative or tribal traditions remain strong. A family or tribe will violently assault any member, usually a woman, who has acted in a manner which brings shame upon the family or tribe. Honour violence may take the form of physical violence, house arrest, restrictions on movement, preventing education, forced marriage, murder, forced suicide or public shaming.  … Tribes seek to defend the honour of the family at the expense of the individual, usually a woman. A woman’s tribe cannot therefore be considered a source of protection against honour violence. [emphasis added]

2. The EASO Country of Origin Information Report “Iraq Targeting of Individuals”, March 2019, states:

   Society, family/community and tribes - The majority of Iraqis identify by tribe and these identities play a strong social role in society and as a safety net. Iraqi society is heavily influenced by tribal, family-based and clan-based connections, most prominently in Sunni areas of Anbar, Salah al-Din, Kirkuk, and Ninewa, as well as the south, in Basrah. Tribal culture and the lack of state capacity permitted tribal customs to hold a strong role in dispute resolution in Iraq, as well as turning to militia and religious authorities to carry out justice, whereby tribal justice for transgressing norms can be particularly harsh for women.

   Tribes are often armed with heavy weapons and are often involved in conflicts in Iraqi society relating to seeking retribution or compensation for transgression of tribal codes, which can result in cycles of killings between tribes. … In Iraqi society, customary and tribal laws and notions of ‘honour’ and the position of women in Iraq as possessions of the family mean that women are unequal under the law and ‘under the control of males in the household’.

   Transgressions of family honour linked to cultural beliefs about women’s virginity or purity has caused families and tribe to carry out honour-based violence against family members, usually females. Perpetrators are frequently male relatives or family members, who carry out honour killings for a range of ‘crimes’ from sexual relations outside marriage, to inappropriate appearances or unacceptable contact with males outside the family, among others. … Transgressing social norms has also led to killings of women with public profiles that have also been carried out in 2018 by unknown armed actors.

   … Honour crimes take place in all areas of Iraq and cut across ethnic and religious lines. Because many honour crimes are unreported or disguised by the family as accidents or suicides, it is difficult to assess the true scale of their incidence. Minority Rights Group adds that ‘as a general rule, crimes go unreported and unprosecuted and are seen by the police and the judicial authorities as falling within the responsibility and discretion of male family members.’

   …

   Women in public roles - Large differences persist in participation in the labour market between Iraqi women and men, UNAMI reported in 2013: ‘only 14 % of women are working or actively seeking work compared to 73 % of men;… The UN Security Council noted in a July 2018 report that ‘according to the Independent High Electoral Commission, 2 009 female candidates participated in the parliamentary elections. During the campaign period, posters of female candidates were vandalised and photographs allegedly showing candidates wearing revealing clothing were posted online. Some female candidates withdrew following threats and intimidation.’

   …

   People transgressing tribal norms - An October 2018 DFAT report notes that women who transgress tribal customs face harsh punishment. …

3. The country information set out above highlights the ongoing insecurity in Iraq and the particular vulnerability of women such as the applicant, with no male guardian, a politicised past public profile, and mental illness.

4. Given the applicant’s political background in Iraq, her former connection to the US forces, her perceived tribal transgression in leaving or ‘running away’ without male or tribal permission and accompaniment, her status as a single divorced woman, and her poor mental and physical health, the Tribunal considers it likely she would face serious harm, in the form of severe discrimination and physical violence, if required to live in Iraq permanently. 

   Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

5. If the applicant’s visa remains cancelled she will be liable to detention as an unlawful non-citizen.  In the likely event that she cannot be removed to Iraq, she faces a significant risk of indefinite detention in Australia.  The Tribunal considers this factor weighs against the cancellation of the applicant’s visa.

   Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

6. As stated above the applicant has spent the past eleven years establishing a life in Australia. She has serious health issues requiring a stable and safe environment in which she can access the treatments she requires.  The Tribunal accepts that this will be difficult to do in Iraq where the security situation remains volatile and access to appropriate medical treatment can be difficult.  The Tribunal accepts that it will cause a high degree of hardship to the applicant for her visa to remain cancelled and to face return to Iraq.

   Weighing the discretionary factors

7. The applicant’s non-compliance with s.101(b), in not disclosing her previous visa application under an assumed name, was a serious breach of her responsibilities under the Act.

8. However in the Tribunal’s view, the factors that weigh against the cancellation of the applicant’s visa, in particular the circumstances of the non-compliance, the ongoing protection obligations she is owed, her poor mental health, and the bond she has developed with [Ms L]’s children clearly outweigh the reasons why her visa should be cancelled. The Tribunal therefore considers that the applicant’s visa should not be cancelled.

   Conclusion

9. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

   DECISION

10. 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.