2106266 (Refugee)

[2022] AATA 5164

2106266 (Refugee) [2022] AATA 5164 (4 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ali Mahmood Alkafaji

CASE NUMBER:  2106266

COUNTRY OF REFERENCE:                   Iraq

DEPUTY PRESIDENT:  Antoinette Younes

DATE:4 November 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 04 November 2022 at 9:06am

CATCHWORDS
REFUGEE – cancellation – Subclass 866 (Protection) visa – Iraq – Federal Court remittal – multiple returns for significant periods of time – religion – Sunni faith – desertion from the army – race – Bidoon ethnicity – compelling and compassionate reasons for the return trips – no non-compliance by the applicant in the way described in the s 107 notice – decision under review set aside

LEGISLATION

Migration Act 1958, ss 101, 102, 103, 107, 109

Migration Regulations 1994, Schedule 2

CASES

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the applicant did not comply with s 101 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.

3. The matter was before the Tribunal previously (differently constituted) and [in] 2021, the Court quashed the Tribunal’s decision of 14 June 2017 and remitted the matter to the Tribunal for reconsideration.

4. The applicant appeared before the Tribunal on 26 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. 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?

10. 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 of the Act.

11. Section 99 is relevant. It provides:

    Information 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.

12. Section 101 provides:

    Visa 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.

13. By way of background, the applicant arrived in Australia on [date] or [date] September 2010 on Christmas Island by boat as an unauthorised maritime arrival. He was interviewed by a Departmental officer on 22 September 2010. The applicant made a request for Refugee Status Assessment (RSA) on 17 October 2010. The applicant provided a Statutory Declaration dated 17 October 2010 to support the request. He was interviewed in relation to the RSA on 19 October 2010, and on 16 March 2011, the delegate found that the applicant did not meet the definition of a refugee. The applicant requested independent review of the RSA’s decision and he obtained a favourable outcome on 25 November 2011. On 11 January 2012, the applicant was granted the subclass 866 visa.

14. As part of the application for a protection visa, the applicant provided a Form 866C. At question 41, the applicant indicated that he is seeking protection in Australia so that he does not have to return to “Iraq”. In response to question 42 asking why he left that country, question 43 asking about what he feared may happen to him in case he returned to that country, question 45 asking why he thought that would happen if he returned, question 44 asking about who might harm/mistreat him, question 45 asking why he thought this would happen, and question 46 asking if the authorities of that country could or would protect him, and if not why not, the applicant answered “Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made in support of my RSA request and my RSA interview on or around 19 October 2010, and all my documents submitted in support of my application for independent merits review and my independent merits review hearing”.

15. At question 65 of the Form 866C, the applicant signed a Declaration that the “information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail”.

16. In the Statutory Declaration of 17 October 2010, the applicant provided the following details:

    a)He is [age] years old, born in Kuwait in [year] but the date of birth on his Iraqi identity document is [date] and that is the date he prefers to use as his birthdate. He is an Iraqi citizen, of Arab ethnicity and of the Sunni Muslim faith. He was born in Kuwait as a stateless Bidoon and was expelled to Iraq in 1994. He was granted Iraqi citizenship around 1994. In Kuwait and as Bidoons, they were not given citizenship and faced multiple problems.

    b)After the invasion of Kuwait by Iraq in 1990, all the family escaped to [another country] where they stayed for one year. After the war, they returned to Kuwait but around 1993, the government arrested his father and paternal uncle and accused them of fighting in the army against Kuwait, which was unfounded. The government confiscated all the family’s identity documents. Those accusations were made against many Bidoons.

    c)His father and uncle were in prison for approximately five months and after their release, they were expelled to Iraq around 1994. The Kuwaiti government said they were Iraqis and had to leave Kuwait but this was in spite of the fact that his father was in the Kuwaiti army before 1990. They left behind their many possessions and only took the basic ones. They settled in Basra and their relatives who were deported earlier settled in [Town 1]. They did not know anyone else in Iraq. His father applied for Iraqi citizenship after some time which was granted. During the Saddam era, they experienced problems and discrimination from Iraqi people on the basis of being Kuwaiti Bidoons but there was not the level of sectarian violence currently happening subsequent to the fall of the regime. They were able to go to the mosque, study and do business without any major problems.

    d)From a young age, he always regularly attended [a] Sunni Mosque in [Town 1]. From the time he was young, the Mullah taught him how to become a caller and he became one around 2004. There were five prayers a day and whenever he was available, he would go to the mosque and announce the call to prayer. He did this every day when he was in [Town 1] and he also undertook cleaning duties at the mosques.

    e)In 2006, the militia crisis began in [Town 1] and there was a lot of sectarian violence in the area. It was believed that the Sunnis were responsible for blowing up the two shrines in Samara. They were very worried about relatives and other Sunnis. Towards the end of 2006, militia groups attacked the mosque in [Town 1] and he was in the mosque with others praying. The militia groups banned all people from attending the mosque and from all activities taking place in the mosque. They told them no one was allowed to pray or call to prayer. Despite those warnings, they continued to attend the mosque. They subsequently received threatening letters.

    f)One morning, his younger brother found a letter inside the house. The letter said, “death to those who disobey our orders”. The letter contained a bullet. Later on that day, when the applicant went to the mosque, he heard from other members that they also had received the same threats. The threats were received by [the Sheikh]and others who were actively involved in the mosque. The following day the Sheikh and his son were murdered. A few days later, [name deleted] who was a frequent visitor at the mosque was shot and another person the following day. All frequent visitors became afraid.

    g)An acquaintance, [Mr A] had a farm outside [Town 1], where the applicant stayed for around one month. Ten days after the applicant left home, the militia came to the house in [Town 1] searching for him. About 20 or 25 days later, they came looking for him again. They wore black clothing and balaclavas. They gave his family an address in Basra and told them that he needed to go and surrender, but either way they would kill him and if he did not surrender, they would also target his family. [Mr A] became fearful for his safety. Another acquaintance of his father agreed that he could go and stay at his farm which was deserted and far from the city. He went to the farm around the end of 2006 or the beginning of 2007. He did not leave the farm unless he really had to. He only saw his family once for a brief visit which he made at night secretly. His father told him that the militia groups were still looking for him and that they also asked the neighbours if they had seen him. There were also suspicious cars. His father told him to stay at the farm.

    h)In 2008, Prime Minister Malaki launched a military campaign and as a result some of the militia groups became part of the Iraqi army and others were promoted. One of the government orders was that Iraqi people were required to report to a certain conscription office and militia people were required to report to a different conscription office. A friend of his, [contacted] him and suggested that he should register with the regular army. He knew that the applicant was wanted by the militia groups so he thought that if he registered with the conscription office, they would become more lenient towards the applicant. In March 2008, the friend registered him with the conscription army office and he told him that his name had been listed to report to the training camp for one month. He moved to serve at [City 1] and he served from June 2008. He went home every few months for a few days. He sent his salary to his family to assist them. In August 2009, he got married to [name] who was from [City 1]. She went to live with his family after the marriage. His wife was pregnant with their first child and was due to give birth in a few weeks.

    i)Around September 2008, he was appointed to serve as a prison [guard]. The army personnel would go out during their raids and bring people back and he was guarding the people who were brought back. He would give the prisoners cigarettes and water.

    j)Around July or August 2009, a high-ranking major was torturing detainees for confessions and when he wanted a break, he asked the applicant to take over but the applicant refused. He told them that his job was as a prison guard, not a torturer. The major lost his temper and abused the applicant. He told him that he could not disobey his orders, otherwise he would join other prisoners. The major knew that this was against the applicant’s beliefs and morals. Each time he refused, the major would punish him. When the major went on leave, another officer took over. He paid 200,000 Iraqi dinar as a bribe and the officer agreed to let him out for one week to see his family provided he would rejoin the army prior to the major’s return from leave. The applicant did not keep the agreement and he returned to [Town 1]. A colleague from the army contacted him and told him that the major was looking for him and was very angry, wishing to punish him for disobeying military orders. He knew he could not return to the army.

    k)In January 2010, he received another call from his army colleague who told him that he had been officially listed as an army deserter and that the major was still looking for him. According to Iraqi law, any army deserter will be imprisoned from 1 to 3 years and would be forced to complete their military service. A decree against him was issued in January 2010 and the one-year amnesty expired in January 2011. After that period, the authorities would publish his name in the paper as a deserter and provide his name to checkpoints in order to find him. He went to the mosque and tried to live life as normally as possible because there was nothing else that he could do. He however kept a low profile and hid whenever government vehicles or patrols went past.

    l)Around March or April 2010, he went with his wife to [City 1] so she could see her parents. The intelligence service came to his in-laws’ place and asked for him. He was taken to the police and asked if he had any pending cases in Basra. He told them that he did not and they said they had instructions to hand him over to the Basra province. His brother-in-law with the help of friends intervened and secured his release by paying a bribe. Before they let him go, the police told him that if they arrested him again, they would have to hand him over to the authorities in Basra.

    m)Around May or June 2010, he noticed there was a vehicle that was following him. He was scared and instead of going home he decided to go to Basra which is about [far] away. He stayed overnight with relatives of his friends. He returned to [Town 1] the next day. He resumed attending the mosque but he was always fearful for his life. On 20 July 2010, during midday prayers at the mosque, there were three government patrol vehicles outside. He and others were threatened and guns were pointed at them. They tied their hands, blindfolded them, and put them in the car. They drove for about one hour to an unknown location and they were taken to a small room and they were ill-treated. They demanded US$15,000 and they were told they had only five days to live. His father had to sell their house to get the money but he could only get $12,000, which was accepted after negotiations which led to him being released. He was released around 25 or 26 July 2010 but another person was killed and his body was dumped near the family’s home.

    n)Prior to his release, they told him that he was released because his parents had paid the money but if they saw him again at the mosque, even in the market, they would arrest him. He knew he would be killed and that his life was at risk. He felt there was no way he could continue to live in Iraq. He was wanted by the government because he had deserted the army and they did not want him to attend the mosque. The authorities could not protect him. After his kidnapping, his father and others went to complain to the police but they did not help because he was a Sunni Kuwaiti Bidoon. His father told him that he should leave Iraq. The family sold more of their belongings and the applicant left Iraq on [date] August 2010 through Basra airport, using his own passport which he had obtained around 2004. He went to [a few countries] then travelled to Australia.

    o)His life remains at risk in Iraq. His father has told him that people purporting to be from members of the Iraqi government had gone to the house looking for him. The people told his father that the applicant needed to surrender for interrogation. His father told them that the applicant had left the country.

    p)The Iraqi government cannot protect him from the harm he fears. He is wanted by both the military and militia groups. The army would hand his name to all of the internal checkpoints and all the exit points. All of the southern provinces are under the control of the Shiite militia. His family had sold everything to pay for his release and for him to flee Iraq. He would not be able to establish himself elsewhere and his only choice was to save his life. He would not be able to return to Kuwait despite being born there as he was not recognised as a citizen. Even if he could enter Kuwait, as a Bidoon who was formally expelled, he would face ongoing discrimination and persecution in Kuwait.

    Events subsequent to the visa grant

17. The Tribunal discussed with the applicant information in the delegate’s decision record, a copy of which the applicant provided to the Tribunal, that according to Departmental movement records, the applicant travelled to Iraq on five occasions, namely:

    ·On [date] April 2012, the applicant went to Iraq for one week.

    ·On [date]  May 2012, the applicant returned to Iraq for eight months.

    ·On [date]  February 2013, the applicant returned to Iraq for five months.

    ·On [date]  January 2014, the applicant returned to Iraq for nine months.

    ·On [date]  February 2016, the applicant returned to Iraq for one month.

18. The delegate’s decision record further indicates that on [date]  October 2014, the applicant arrived at Sydney International Airport and he was interviewed by an Immigration Inspector. He stated that he had travelled to Basra, Iraq because his father was ill and he had stayed there for ten months. He also stated that he did not travel to other places and that he did not see any fighting in Basra while he was there. The applicant had in his possession an Iraqi identity card obtained in Iraq [in] 2012.

    Notice of intention to consider cancellation (NOICC) and response

19. On 20 June 2016, the Department sent to the applicant a NOICC which set out a summary of the applicant’s protection claims, as well as referring, to the applicant’s returns to Iraq on five separate occasions between 2012 and 2016 for a total period in excess of 23 months. The NOICC essentially noted that the returns to Iraq suggest that the applicant did not hold the claimed profile with the Iraqi authorities. The NOICC suggested that the applicant had breached s 101 of the Act in providing incorrect answers in the application for a Protection visa.

1. On 6 July 2016, the applicant responded to the NOICC as follows:

   ·On [date]  April 2012, he returned to North of Iraq to Erbil because the Department had asked for his family passports which could not be issued without his presence. He went to Erbil and he was not allowed to enter. The Kurdistan authorities returned him back to Australia without entering their region. Therefore, he was not physically in Iraq.

   ·On [date]May 2012, as he could not provide the required documents to the Australian Embassy in Amman for the Partner visa application by the required timeframe, he was obliged to return, particularly as the Iraqi ID for his wife (and himself) needed to be amended to reflect her married status. He was married in 2009 and escaped Iraq in 2010 without adding his wife’s name to the ID and his wife did not add his name to her ID. It took a long time to complete the paperwork as he was scared to appear in public. As such, he could not obtain the documents in a short time and had to stay for about eight months. He lived with his wife who became pregnant. They were happy because they were expecting their second child but her health was not good in the absence of appropriate healthcare. He stayed to support her psychologically.

   ·On [date] February 2013, his wife had a miscarriage and she was admitted to hospital. She was in a critical condition. Her parents threatened him and he was under a lot of pressure that made him blindly return to Iraq with the full knowledge of the risk to which he might be exposed. He stayed in Iraq until she completed her medical treatment which took about five months.

   ·On [date] January 2014, due to threats, his father had a stroke and was close to death. It was expected culturally that the applicant would see him prior to his death. His father told him that he wanted to see him prior to dying. Although he knew he would be harmed, he made his way to Iraq. His son was also sick and he had to care for him until the end of the treatment.

   ·On [date] February 2016, he travelled to Iran to meet his wife and son. While in Iran his father went into a coma but he could not accompany his wife and child. They could not meet in Iran. In 2015, when he went to Iraq, he was living discreetly in their new address.

   ·Subsequent to departing Iraq, his whole family was threatened for being Sunnis and they escaped to [Country 1]. They approached UNHCR on 27 June 2016 and they were invited for an interview on 27 July 2016.

   ·Had his wife’s Partner visa application being approved, he would not have had all this trouble by returning to Iraq. There are compelling and compassionate reasons for his travels to Iraq.

   ·He confirms that he did not provide incorrect answers and he believes that if he were to return to Iraq, he would be at risk of persecution on the grounds of religion, Bidoon ethnicity, and desertion from the army.

2. In support of the response to the NOICC, the applicant provided, among other things, medical reports relating to his wife, a “legal document” (threat complaint), and medical reports relating to members of the applicant’s family in Iraq.

3. The Department conducted an International Treaties Obligations Assessment (ITOA) which concluded that there was not a real chance of the applicant suffering serious harm or a real risk of the applicant facing significant harm in case of his return to Iraq. The ITOA assessment essentially concluded that the applicant was not a person in respect of whom Australia had protection or non-refoulement obligations.

4. The delegate considered the applicant’s response to the NOICC and concluded that the applicant had provided incorrect information as specified in the NOICC and was not satisfied that the visa should not be cancelled.

   Material provided to the Tribunal

5. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record. During the hearing the Tribunal discussed with the applicant relevant matters.

6. In a Statutory Declaration dated 19 October 2022, the applicant reiterated his earlier claims and indicated that:

   ·He fears returning to Iraq for the earlier claimed reasons. In Iraq, his parents, sister, and his son [live] in the [Town 1] area, while his daughter [lives] with her mother in [City 1]. His brother [Mr B] came to Australia in 2013 and was not granted any visa. [Mr B]’s wife was at risk due to the Sunni faith. The house where she lived was raided by militia groups who questioned her about [Mr B]’s whereabouts as they were suspicious about any Sunni not being in the area. [Mr B] returned to Iraq discreetly and he fled with his wife to [Country 1] from where he applied to the UNHCR which resulted in resettlement in [another country]. He confirms that not all his brothers applied to the UNHCR as the remainder of the family were not able to go to [Country 1] given that they were denied entry. Instead, they travelled to Erbil.

   ·His sister [is] a refugee in [Country 2]. She, her husband, and her children were registered with the UNHCR [and] they were all resettled to [Country 2].

   ·Al-jaashaamy or Jasha’’am is a very small Sunni tribe in Iraq and as such it was perceived as being weak. The tribe is mostly Bidoons who suffered discrimination and members of the tribe have a unique accent. He is a member of the Bidoon community and has suffered substantial persecution in Iraq.

   ·In around April 2017, his family moved from [an] area back to [Town 1] as they were unable to leave Iraq due to financial reasons. They were denied entry to [Country 1] and had no other option but to relocate to [Town 1]. On return to [Town 1], his wife asked him to either bring her and the children to Australia or at least find her a place because the family home was very small. He asked his family to rent her a separate house where she now lives, adjacent to his family.

   ·In around January 2018, a group of militia men raided the home where his wife lives and physically harassed and assaulted her. His wife and brothers were accused of being terrorists affiliated with ISIS. They also accused the applicant of being affiliated with ISIS. His wife and brothers were taken and his wife was released a week later after being tortured and after her father intervened. The militia men fabricated evidence claiming that when they raided the home, they found books that called them to fight Shia in support of the Sunni faith. His brothers have remained in prison without trial. His mother is critically ill because of what has happened to the family. Subsequent to his wife’s release, her father requested a divorce from the applicant for all the trouble that he had caused by leaving his wife all these years which is socially and tribally unacceptable. His father was threatened by his father-in-law, in retaliation for what had happened to his wife and as a result his father had to write a tribal statement denouncing the applicant. His father is unwell and he has severe heart conditions. He was forced to return to help his wife who was critically ill. His father-in-law was very aggressive towards him at the time and he tried to force him to return to Iraq despite potentially being killed by the militia.

   ·Sunni prayer call is different and he had been frequently targeted in Iraq because the Sunni call for prayer is different to the Shia call for prayer.

   ·He fears returning to Iraq as he would be targeted by the militia groups as the targeting against his family has not stopped. He would be targeted as two of his brothers are in prison without any evidence against them. He fears that his father-in-law and his tribe would target him due to what has happened to his wife. The fact that she has lived without him all those years is unacceptable culturally and tribally. He also fears harm due to the desertion from the army. Although the Iraqi government declared a general amnesty since 2013, deserters have to be in Iraq at the time of the amnesty. It is his understanding that the amnesty is for a specific period of time and that deserters have to join the military units. Moreover, he kept his military clothing and other items when he deserted that belong to the Iraqi government. There is a penalty under the military penal code.

   ·The reason why he was not arrested when he returned to Iraq on four different occasions is due to the fact that there was no electronic system of governance in Iraq and as a consequence, the airport and border ports would not have had the electronic means to check. The same applies to the local police who do not have computerised checking mechanisms. He was also very discreet when he returned to Iraq. His circumstances were very compelling. His previous representative misunderstood some of his statements in response to the NOICC. He continues to fear returning to Iraq.

   ·He fled Iraq to Australia shortly after his marriage when his wife was pregnant with their first child. He has been waiting to reunite with his family. The length of time that this has taken has caused much disruption, pain, and misery to their lives. He is a law-abiding citizen in Australia. He has been deprived of seeing his family all these years and he is suffering psychologically.

7. In support of the review, the applicant provided copies of documents provided to the Court, as well as submissions. He also provided copies of independent country information about Iraq relating to the use of information technology, tribal law in Iraq, violence against women, photographs of the applicant’s brother in prison, photographs of the applicant’s children, the European Asylum Seeker Office Country of Origin Report, Iraq, the decision of the IMR dated 25 November 2011, letter of support from the Presidency of the Sunni Endowment dated [in] July 2010, Certificate of Introduction from the President of [a mosque], dated 6 February 2017, Arrest/Investigation Warrant relating to the applicant, dated [in] February 2011, Warrant of Commitment from the Military Court in Basra, dated [in] 2011 concerning the applicant, noting multiple court rulings including a term of imprisonment of one year.

8. During the hearing, the Tribunal discussed with the applicant his claims and the returns to Iraq. The Tribunal indicated to the applicant that the multiple returns for significant periods of time could raise doubts about his claimed fear, as well as his claims. The applicant explained that on the first occasion, he did not in fact enter Iraq. He explained that he went to Erbil airport and as he did not have a visa to enter Iraq, he was not permitted to enter. In relation to his subsequent returns, the applicant explained to the Tribunal that his family needed to organise their documents required for the Partner visa application and he had to be present in Iraq. He also explained to the Tribunal that his ID as well as that of his wife did not show their marital status. Consequently, they had to be amended to reflect that they were married. He stated that he had not seen his son since his birth and his father was unwell. He stated that he took a risk by going to Iraq. He argued that there were compelling reasons for his returns.

9. The applicant gave evidence that he was born in Kuwait and was deported to Iraq. He confirmed his Iraqi citizenship. He stated that in Iraq, he faced discrimination and he was targeted due to his different accent, clothing, and other features.

10. The Tribunal discussed with the applicant his claims including that relating to army desertion. He reiterated his claims and the history of the harm that he had suffered as a result. He continued to claim that he fears harm on that basis, and other grounds, including his Sunni faith and Bidoon ethnicity. He gave evidence that he was targeted by militia groups in Iraq, including being kidnapped and threatened in 2010. He stated that he was let go of due to payment of a ransom, and he was threatened that if caught again, he would not be let go of. The Tribunal discussed with the applicant that any harm that he would faces on the basis of being a deserter is arguably due to a law of general application and as such would not amount to serious harm. The applicant referred to his other claims, including his ethnicity and faith.

11. The Tribunal observes that the applicant was granted a protection visa subsequent to a recommendation by the IMR that the applicant be recognised as a person to whom Australia has protection obligations under the Refugees Convention. In reaching those conclusions, the IMR considered the applicant’s evidence, as well as material provided in support which included a copy of an Arrest Warrant and a Military Identity Card. The applicant was interviewed on Christmas Island and his claims were explored. The IMR considered independent country information relating to Iraq. Of particular relevance are the IMR’s comments that credibility “is difficult to assess and in my view should not be unduly influenced by demeanour. In this case the [applicant] has been in detention for many months, separated from his family and unsure of his future. In these circumstances a certain amount of frustration, anger or depression is to be expected and allowances made… [the applicant] gave his evidence in a very cautious fashion and did not give information freely. His story was consistent and he was not prone to exaggeration or embellishment. The information he gave me was consistent with independent information but his caution led him to provide information in short answers which made it difficult to obtain the complete story easily… I attributed [the applicant]’s responses to the stress he was under and the fear he had following what he perceived to be an unfair RSA interview however, and I accept that [the applicant] has given accurate and reliable evidence in the course of his interview with me, to the best of his ability”.[1]

    [1] IMR decision, dated 25 November 2011, paragraphs 50- 53.

12. In essence, the IMR accepted the applicant is a stateless Kuwaiti Bidoon who has been given Iraqi citizenship. The IMR accepted that the applicant holds a genuine fear in returning to Iraq. The IMR accepted that the applicant fears harm at the hands of extremist Shia groups or militia remnants that operated in Basra and the [Town 1] area in particular. The IMR accepted that the applicant fears harm due to his Sunni faith and Bidoon ethnicity and that the applicant’s position is “further complicated by his desertion from the Iraqi army”. The IMR was satisfied that there is a real chance that the applicant will suffer serious harm and that he has a well-founded fear of persecution for reasons of being a stateless Sunni Bidoon and being perceived as having political opinions of opposition to the sectarian militia instituted by his open practice of the Sunni religion in a predominantly Shia area.

13. The Tribunal acknowledges that the previous Member who determined the review reached an adverse credibility finding. In this regard, the Tribunal acknowledges the importance of consistent decision-making and the Tribunal respects the views of other Members. However, the Tribunal is not bound by other decisions of the Tribunal, or the IMR. The assessment of credibility is unique and what may appear to be problematic to one decision-maker, may not be so to another. The Tribunal recognises that assessment of credibility is an inherently difficult process and that there are unique considerations in relation to asylum seekers.

14. The Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions concerning credibility. In the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the Court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

15. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

16. As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken is reasonable, reflective, and fair. In this case, the Tribunal has conducted a hearing and the Tribunal has formed the view that the applicant’s claims have been consistent throughout the process. Although the Tribunal has some concerns about aspects of the applicant’s evidence, overall, the Tribunal is satisfied that the applicant’s claims are credible and supported by relevant country information cited in the IMR’s decision.

17. The applicant’s visa has been cancelled essentially on the basis of his returns to Iraq. The Tribunal is mindful that the returns do raise doubts about the applicant’s claims. However, this must be balanced with the fact that the applicant held a permanent protection visa and its loss can only be achieved through a level of satisfaction acknowledging the gravity of such a loss. Cancellation of a permanent protection visa has significant consequences for the applicant, including deportation, indefinite detention, a bar, financial, psychological, and other forms of hardship. The Tribunal recognises that those matters are within the discretionary considerations and the Tribunal is referring to them to say that there are serious and grave consequences so for it to be satisfied that the ground for cancellation exists, that level of satisfaction requires reaching conclusions based on probative material. The returns to Iraq are problematic for the applicant. He has provided explanations and supporting material. He explained that he had to return to organise documents for his family in support of the Partner visa application, which in the Tribunal’s opinion is persuasive. He explained and provided evidence in support that his father was ill, which is also persuasive. He also explained that he was threatened by his father-in-law to make a decision relating to his wife. The applicant explained the cultural and tribal contexts of him leaving his wife behind, which the Tribunal accepts as being entirely plausible.

18. In submissions to the Tribunal, it was pointed out that condition 8559 which is attached to any subclass 866 visa granted after 3 June 2013 allows refugees to travel to their home country if the Minister considers that compelling reasons exist. The Tribunal recognises that condition 8559 was not attached to the applicant’s visa but the principles are of relevance to the current review as they highlight an acknowledgement that there could be compelling reasons for a holder of a subclass 866 visa to return to their home country. The Tribunal has found the submissions persuasive in providing an analogy in terms of applicable principles.

19. In consideration of the evidence as a whole, the Tribunal is not satisfied that the returns to Iraq mean that the applicant provided incorrect information. The Tribunal has not reached the level of satisfaction required to conclude that the returns, without more, mean that the applicant has provided incorrect information and as such breached s 101 of the Act.

1. For these reasons, the Tribunal finds that there was no 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.

2. The Tribunal has decided that there was no non-compliance by the applicant in the way described in the notice given under s 107 of the Act. The Tribunal concludes that the visa should not be cancelled.

   DECISION

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

   Antoinette Younes
   Deputy President

   
   
   

   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

   ©       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)©.

   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

   ©       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

   ©       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

   ©       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.