2205984 (Refugee) - [2024] AATA 1568

2205984 (Refugee) [2024] AATA 1568 (31 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:David Godwin
CASE NUMBER: 2205984

COUNTRY OF REFERENCE: Iraq
MEMBER:Melissa McAdam
DATE:31 January 2024
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 31 January 2024 at 12:06pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect information in the visa application – identity details – previous visa application – family in Australia – employment assisting Western forces – non-refoulement obligations – marriage to an Australian citizen – visa grant not based upon the incorrect information – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 46, 97-105, 107-109, 116, 140, 189, 197, 198, 359
Migration Regulations 1994, r 2.41
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Mian v MILGEA (1992) 28 ALD 165
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994)
Tarasovski v MILGEA (1993) 45 FCR 570
Zhao v MIMA [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in relation to the review.
The delegate cancelled the visa on the basis that the applicant had not complied with obligations under 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.
The applicant arrived in Australia by boat [in] October 2010. He applied for an onshore Protection visa in Australia. On 4 May 2011 he was granted a Protection visa.
NOICC
On 8 November 2021 a department delegate provided to the applicant a Notification of Intention to Consider Cancellation of his Protection visa (‘the NOICC’). In the NOICC the delegate set out the following:
I consider that there has been non-compliance with the following section(s) of the Migration Act 1958:
Section 101 Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(b) no incorrect answers are given or provided.
…
Evidence of the non-compliance
You arrived in Australia [in] October 2010, as an irregular maritime arrival (IMA). In your entry interview held on 26 November 2010, you provided the following information in respect to your identity:
Family name [Family name 1]
Given name [specified]
Alias Name -
Date of birth [DOB 1]
Place of birth Baghdad, Iraq
Citizenship Iraq
Details of father [Father A] (DOB [specified year 2])
Details of mother [Mother A] (DOB [specified year 3])
…
Identity documentation Nil
Details of siblings
[Sibling A] (born [DOB 4])
[Sibling B] (born [DOB 5])
[Sibling C] (born [DOB 6])
[Sibling D] (born [DOB 7])
On 12 January 2011, a Refugee Status Assessment (RSA) interview was undertaken. On 9 February 2011, the delegate determined you met the definition of refugee set out in the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. It was therefore recommended you be recognised as a person to whom Australia has protection obligations. This was on the basis of your claims of imputed political opinion. You claimed to be a Shi’a Muslim, and having been threatened on several occasions by the Shi’a militia, for having worked at the [Agency 1] and assisted western forces. You claimed you feared being killed by the same Shi’a militia, which had already threatened you and tried to kill you.
On 29 April 2011, you lodged a Protection visa application. In Part B of your Form 866-Application for a Protection (class XA) visa, you provided the following information (in bold italics):
At question 1, give details of all persons included in this application.
[The applicant], (born [DOB 1])
At question 2, Has any person named in Question 1 previously applied for refugee status or a protection visa from the department? No
At question 10, Do any of the persons included in this application and named in Question 1, have close relatives who are IN AUSTRALIA at the time of application? No
In Part C of your Form 866- Application for a Protection (class XA) visa, you provided the following information (in bold italics):
At question 1. What is your full name?
Family name [Family name 1]
Given name [specified]
At question 4, What other names have you been known by?
You did not provide an answer.
At question 7, Date of birth? [DOB 1]
At question 8, Place of birth?
Town/city Baghdad Country Iraq
At question 12, Ethnic group you belong to? Arab
At question 13, Your religion Shia Muslim
At question 19, You citizenship at birth? Iraqi
At question 41, I am seeking protection in Australia so that I do not have to go back to? Iraq
In response to the following five questions, regarding your reasons for claiming protection, you responded by stating Please refer to my statutory declaration.
Question 42, Why did you leave that country?
Question 43, What do you fear may happen to you if you go back to that country?
Question 44, Who do you think may harm/mistreat you if you go back?
Question 45, Why do you think this will happen to you if you go back?
Question 46, Do you think the authorities of that country can and will protect you if you go back? If not, why not?
You included a statutory declaration dated 9 January 2011, in addition to your Form 866, in support of your application for the Protection (subclass 866) visa. As such, I have taken information in this statement to form your answers to questions 42 - 46 above.
You declared (in part):
1. I am a citizen of Iraq I do not have a right to citizenship or a right to reside in any other country.
2. I am Arab and a Shia Muslim
3. I was born on [DOB 1] in Baghdad Iraq.
…
4. I fear returning to Iraq
…
5. In August 2010 I was working as [an occupation 1] at an [Agency 1]. [This] was in [location], Babylon. I obtained this job through a sub-contractor named [name]. We belonged to a group of workers that went [each morning] to conduct [specified duties].
6. On [a day in] August we noticed a car following us. This car had no number plate. All of a sudden the occupants of the car started shooting at our car. One person in our car was wounded by the gunfire.
7. Our driver escaped and speeded toward the [Agency 1]. Just before the [Agency 1] there was a patrol car and this driver helped us transfer the wounded man to the [Agency 1].
8. We stayed in [Agency 1]; we were very frightened and scared to leave [there]. I contacted my family to tell them what happened. They told me not to come home and warned me that some men had come to our house asking about my whereabouts.
9. It was suspected they were members of the militia. I suspect that they were after me because I did work at the [Agency 1] and would be considered a traitor for working with western forces.
10. On the same day that this incident took place my brother [Sibling C] was killed in our house. I believe he was killed because of my involvement with the [agency 1]. When I rang my mother she told me my brother had been shot by militia men. They had come to the house and shot him in the back from the entrance.
11. As I was warned not to go home I headed for Baghdad. I stayed at my sister’s house for a few days, but they also warned it would not be safe to stay there.
12. They helped me with obtaining a passport and [a day] of September 2010 I departed Iraq for [Country 1], and from [Country 1] flew to [Country 2]. From [Country 2] I travelled by boat to Indonesia.
13. The smuggler on the boat from [Country 2] confiscated all my luggage including my documents including my citizenship certificate, Iraqi ID card, my work ID card that allowed me to work at the [Agency 1] and some school ID cards.
14. He also kicked me in the stomach for having asked to return my documents.
15. From [Country 2] I travelled by boat to Indonesia from where I caught a boat which was intercepted by the Australian Navy. I was taken to Christmas Island [in October 2010].
What I fear may happen to me if I return to that country and why
16. I believe if I return to IRAQ I would face a real chance of being killed for convention reason of belonging to a particular social group of people. I was a member of a group of people that worked at the [Agency 1].
17. The militia object other Shia Muslims or any Iraqis to work with western forces. Because of my involvement with this work and association with the [agency], I was targeted by militia groups and fired upon. The militia groups target anyone who works with foreign forces.
18. One of my work colleagues was badly injured in this ambush. Further to the ambush the militia then came to my house asking about my whereabouts. My brother was murdered by the militia most likely because they thought he was me and therefore shot him in our house.
Who I think may harm/mistreat me in that country and why
19. I believe if I return to IRAQ I would be at a real risk of facing serious harm by the militia groups. I am not sure who they are, but belief they could be Al-Mahdi army or other factions of this militia. I fear being killed like my brother.
Why I think the authorities of that country cannot or will not protect me if I were to go back to that country
20. I cannot seek protection because it is the militia/political groups that have now taken up positions in the government. It would be foolish to seek protection from the militia when they are in government themselves.
Why I think relocation to another area in my country is not a reasonable option.
21. I cannot relocate in Iraq. I miss my family, I lost my brother. Relocation is not going to solve my problem. I will be found by the militia wherever I move to in Iraq.
You also completed a Form 80, Personal Particulars for Character assessment, dated 9 January 2011, in which you provided the following information:
At question 1,
Family name: [Family name 1]
Given names: [specified]
At question 3, Other names you are, or have been, known by? No Alias
At question 5, date of birth: [DOB 1]
At question 8, What is your current citizenship? Iraqi
At question 9, How was your citizenship acquired? Birth
At question 10, When was your citizenship granted? [DOB 1]
At question 12, Have you ever been refused citizenship of another country? No
At question 20, About your brothers and sisters: Please refer to attachment.
You provided an attachment to that Form 80, declaring your siblings to be:
[Sibling A] (born [DOB 4])…
[Sibling B] ([DOB 5])…
[Sibling C] ([DOB 6])…
[Sibling D] ([DOB 7])….
At question 28, Details of contacts in Australia? N/A
At question 35, Have you ever been denied or refused a visa or entry to another country? No
With the delegate being satisfied you met all other requirements for the visa, you were subsequently granted a Protection (subclass 866) visa on 4 May 2011.
Information indicating the answers you provided in the visa application were incorrect.
Information received from New South Wales (NSW) Police
[In] March 2018, the NSW police advised the Department of Home Affairs they were investigating a criminal matter, whereby you were named as an alibi witness. During the course of this investigation, they obtained information that your real name was [Alias A1] and you were related to a [Mr A].
Application for Temporary Protection (subclass 785) visa
On 20 June 2001, an application for a temporary Protection (subclass 785) visa was lodged by [Mr A variant] (born [DOB 8]), upon arrival to Australia as an IMA.
…
This Temporary Protection (subclass 785) visa was granted on 19 December 2001. [Mr A variant] subsequently remained in Australia and was granted permanent protection (residency) in September 2005.
Application for Global Special Humanitarian (subclass 202) visa
On 15 August 2010, an application for a Global Special Humanitarian (GSH) (subclass 202) visa was lodged with the Department, in Jakarta, by a [Alias A] (born [DOB 9]). This application was proposed by [Mr A variant] (born [DOB 8],M), the applicant’s brother and a citizen of Australia.
The applicant claimed to be an Iraqi citizen and worked at the [Agency 1] as [an occupation 1], in Baghdad. He further claimed he and his brother were shot at by terrorists in Baghdad, believed to be the Mehdi Army, while driving to his work. His brother [named] was killed in this incident and he later received a threatening letter, left in the front yard of his grandfather. He subsequently fled Iraq on a false passport, transiting through [Country 1], [Country 2] then Indonesia.
The applicant claimed to have been questioned by police in Jakarta and held in an Immigration detention facility there. Included in this application was a copy of an Iraqi Nationality certificate, certificate number [C1], an Iraqi National ID card, document number [D1], and a passport photograph of the applicant, known to be [Alias A] ([DOB 9]). The former two documents confirmed him to be a citizen of Iraq.
…
This application for a Global Special Humanitarian visa was refused by the Department on 15 September 2010 for a variety of reasons.
Facial Image Comparisons
It was noted you provided an identity document as part of your Australian citizenship application, which contained a facial image. This document, confirming educational marks for student [applicant’s name variant] (born [DOB 1]), was dated [in] October 2016, and addressed to [Authority 1] from [School 1].
In comparing this image of [applicant’s name variant], with the photographic image provided as part of the Global Special Humanitarian (GSH) visa application, for [Alias A] (born [DOB 9]), lodged in Indonesia in 2010, it appeared to be a duplicate.
An additional, more recent photograph was also included in your application for Citizenship. It was endorsed on the back by [Mr B], who declared “This is a true photo of [the applicant]”. [Mr B] signed a declaration in your application for citizenship, dated 29 May 2015, indicating he had known you for three years.
On 28 March 2019, a Forensic Facial Image comparison was completed, which compared the photographs from the two above mentioned sources. The photographs compared were for identities declared as:
- [The applicant’s name] ([DOB 1]) – referred to as P1. This image provided by you as part of your application for Australian Citizenship, endorsed by [Mr B], 29 May 2015.
- [Alias A] ([DOB 9],M) – referred to as Q1. This image was taken from the GSH visa application, lodged 15 August 2010.
Based on the observations of the photographic images, the Forensic Facial Image Examiner determined there are indications the person depicted in images P1 and Q1 represent the same person.
Parents’ names
Upon arrival to Australia, you declared your surname to be “[Family name 1]”, You declared your parents’ names to be:
Father: [Father A variant] ([specified year 2])
Mother: [Mother A variant] ([specified year 3]).
This is consistent with the names [Mr A variant] declared for his parents (noting variation in spelling and date of birth for your mother):
Father: [Father A variant] ([specified year 2])
Mother: [Mother A variant] ([specified year 3A]).
On 11 July 2011, after having been granted your permanent residency (Global Special Humanitarian (subclass 202) visa), you proposed a further GSH (subclass 202) visa application for your parents. In this application, both parents’ surnames were listed as “[Family name 1]”.
As part of your Australian citizenship application, you provided a copy of your mother’s death certificate to prove your identity, which depicted your mother’s name to be [Mother’s name variant with Family name 1].
In Iraq, the lineage of names is passed through the male side of their family. Most Iraqi Arabs use Arabic naming conventions. This formatted as: [personal name] [father’s personal name] [grandfather’s personal name]. Occasionally, people may add a fourth name that is their great grandfather’s from their father’s side of the family: [personal name] [father’s personal name] [grandfather’s personal name] [great grandfather’s name]. However, Iraqi women traditionally do not adopt their husband’s names when they marry. Some may do so in Western societies, but it is not typical.
This indicates you have incorrectly declared your mother’s surname ([Family name 1]) as yours, rather than your great grandfather’s name, as in true Iraq naming convention. You have further had to maintain this surname, when you proposed your parents’ visa application a year later. Your father’s surname would have traditionally included the name “[name]”, not his spouse’s name of “[Family name 1]”.
Consideration of evidence
It appears you have previously applied for a visa for Australia in 2010, in the name of [Alias A]. Your brother [Mr A variant], an Australian citizen, sponsored you for a Global Special Humanitarian visa, while you were in Indonesia. This application was refused on 15 September 2010.
After refusal of this application, you later engaged people smugglers to facilitate your way from Indonesia to Australia illegally, arriving as an irregular maritime arrival some six weeks later, [in] October 2010.
Upon your arrival in Australia, you provided incorrect information regarding your identity, namely your name and date of birth, as well as known contacts in Australia. You did not declare you had previously applied for a visa for Australia.
Your claims for asylum were similar to those put forward to the Department in your application for a Global Special Humanitarian visa, in that you claimed to have worked at the [Agency 1] as [an occupation 1], you were shot at by militia and subsequently threatened. Your claims differed in respect to how your brother(s) were killed in Baghdad however.
Details of your family composition in each application are similar, with slight variations on dates of birth and the omission of some siblings’ names.
Your claimed brother [Mr A variant], declared you as his brother when he first arrived in Australia. He declared you under the identity [Alias A] (born [DOB 9]). The balance of family composition he declared in 2001, mirrors your family composition with slight differences in some siblings’ and your parents’ dates of birth.
The NSW police provided information to the Department you have previously been known by the name [Alias A1], which is consistent with information the Department holds regarding your previous visa application.
A facial image comparison of a document you provided as part of your identity for your application for Australian citizenship, in the name of [applicant’s name variant] (born [DOB 1]) and an image included in the application for the Global Special Humanitarian in the name of [Alias A] (born [DOB 9]) were compared. The forensic examiner found indications both images represent the same person.
In your application for Australian Citizenship, you have maintained your identity is that of [the applicant’s name] (born [DOB 1]) but have failed to provide any identity documents in this name, other than a school certificate.
I consider you have deliberately, incorrectly declared your mother’s surname ([Family name 1]) as yours, rather than your great grandfather’s name ([name]), in accordance with Iraqi naming conventions. I consider you have done so in an attempt to mislead the Department of your true identity and to avoid the Department detecting your familial links with your brother already onshore, and the fact you had previously unsuccessfully applied for a visa for Australia.
Based on the above information, I therefore consider the following information you provided in Parts B and C of Form 866 – Application for a Protection (Class XA) visa, is incorrect:
Part B
At question 1, Give details of all persons included in this application.
You answered: [The applicant’s name], (born [DOB 1])
I consider this is incorrect because:
- You have previously provided Iraqi identity documents to the Department, in the name of [Alias A], namely a Certificate of Iraqi Citizenship, certificate number [C1], and an Iraq National ID card, document number [D1].
- Your stated brother, [Mr A], has also declared he has a brother by the name of [Alias A].
- According to the death certificate of your mother, which you provided the Department as part of your citizenship application, your mother’s surname was “[Family name 1]”. Iraqi naming conventions dictate the lineage of names is only passed through the male side of the family in Iraq.
At question 2, Has any person named in Question 1 previously applied for refugee status or a protection visa from the department?
You answered: No
I consider this is incorrect because:
- Departmental records indicate you have previously applied for a Global Special Humanitarian (subclass 202) visa in 2010, under the identity [Alias A] (born [DOB 9]), while you were in Indonesia.
- The photograph submitted as part of that application, matches a facial image on a document provided to the Department as part of your citizenship application, under the identity [the applicant’s name].
At question 10, Do any of the persons included in this application and named in Question 1, have close relatives who are IN AUSTRALIA at the time of application?
You answered: No
I consider this is incorrect because:
- [Mr A variant], arrived in Australia as an IMA [in] May 2001, and has settled in Australia and not departed since.
- You share the same parentage as [Mr A]. [He] declared his father to be [Father A variant] (born [specified year 2]) and mother to be [Mother A variant] (born [specified year 3A). These names correspond with the names you declared for your parents [Father A variant] ([specified year 2]) and [Mother A variant] ([specified year 3]), noting slight variation in date of birth for your mother
- [Mr A] declared he has a brother by the name of [Alias A] upon his arrival in Australia
- [Mr A] proposed his brother [Alias A] for a Global Special Humanitarian visa in 2010, which was subsequently refused. In this application, you provided the same parental details
- [Mr A] acquired Australian citizenship [in] February 2008
- As it is considered you [the applicant] are one and the same person as [Alias A], I consider you had a close relative (brother) in Australia when you lodged your application for Protection in April 2011.
Part C
At question 1. What is your full name?
You answered:
Family name: [Family name 1]
Given name: [specified]
I consider this is incorrect because:
- You have previously provided Iraqi identity documents to the Department, in the name of [Alias A], namely a Certificate of Iraqi Citizenship, certificate number [C1], and an Iraq National ID card, document number [D1].
- Your stated brother [Mr A], has also declared he has a brother by the name of [Alias A]
- According to the death certificate of your mother, which you provided the Department as part of your citizenship application, your mother’s surname was “[Family name 1]”. Iraqi naming conventions dictate the lineage of names is only passed through the male side of the family in Iraq.
At question 4, What other names have you been known by?
You did not provide an answer.
I consider this is incorrect because:
- You previously lodged an application for a Global Special Humanitarian visa in 2010, in the name of [Alias A]
- You have previously provided Iraqi identity documents to the Department, in the name of [Alias A variant], namely a Certificate of Iraqi Citizenship, certificate number [C1], as well as an Iraq National ID card, document number [D1] in the name [Alias A variant].
- Your stated brother [Mr A], has also declared he has a brother by the name of [Alias A].
- Iraqi naming conventions dictate the lineage of names is passed through the male side of the family in Iraq. You would therefore have been known by your father’s, grandfather’s and great grandfather’s names [names, together].
At question 7, Date of birth?
You answered: [DOB 1]
I consider this is incorrect because:
- You previously lodged an application for a Global Special Humanitarian visa in 2010, in the name of [Alias A], with a date of birth of [DOB 9]
- You have previously provided Iraqi identity documents to the Department, in the name of [Alias A], namely a Certificate of Iraqi Citizenship, certificate number [C1], and an Iraq National ID card, number [D1], which listed a date of birth of [DOB 9].
- Your stated brother [Mr A], has also declared he has a brother by the name of [Alias A], with a date of birth of [DOB 9].
Aside from the determination you were a person to whom Australia had protection obligations, the delegate was satisfied, based on your provision of consistent information about your name, date and place of birth, and ethnicity, that you were a citizen of Iraq. In the absence of any documented evidence, you were afforded benefit of the doubt in respect to your claimed identity. The name you provided on entry to Australia, [the applicant’s name] ([DOB 1]) was accepted at face value and your visa was granted under this identity. This information, however, appears to be incorrect.
You have provided inconsistent information in relation to your name and date of birth, in your dealings with the Department. Other than a copy of a school report purporting to have originated from [School 1] in October 2016, you have been unable to provide any identity documentation in the name of [the applicant] ([DOB 1]). Conversely, you have provided identity documents to the Department, in the name of [Alias A], with a different date of birth of [DOB 9].
If you have provided incorrect information in support of your application for a Protection (subclass 866) visa, and not complied with section 101(b) of the Act, your visa may be cancelled under section 109 of the Act.

According to the delegate’s decision record the applicant did not respond to the NOICC.
On 22 March 2022 the delegate decided to cancel the applicant’s visa.
Information to the Tribunal
Pre-Hearing Submissions
On 5 October 2023 the applicant’s representative submitted copies of the following materials to the Tribunal:
-    The applicant’s Iraqi National ID Card, issued [in] October 2020.
-    The Iraqi National ID Card for the applicant’s [Sibling B], issued [in] December 2009.
-    The Iraqi National ID Card for the applicant’s [Sibling D], issued [in] November 2007.
-    The Iraqi National ID Card for the applicant’s [Sibling A], issued [in] June 2015.
-    An Iraqi residence card for the applicant’s father.
-    A written submission by the applicant’s representative.
-    A Statutory Declaration by the applicant.
-     A written statement by the applicant’s [Sibling A].
-    The applicant’s Iraqi School Report dated [in] October 2016.
-    The applicant’s parents’ Iraqi Marriage Registration.
-    The applicant’s mother’s Iraqi Death Certificate, registered [in] November 2017.
-    An Iraqi Death Certificate [Sibling C], issued on [the day in] August 2010.
-    An Iraqi Certificate of Nationality for the applicant’s father, dated [in] May 1978.
-    Blood donation acknowledgement and receipt to the applicant by the Australian Red Cross.
-    The applicant’s Australian Marriage Certificate, with marriage date recorded as [May] 2023.
In the applicant’s statement he writes the following:
… I have been married since [May] 2023 to [Wife A], and My wife is an
Australian Citizen. Her passport document Number is ….
My mother was [Mother A variant], and sadly, she died [in] November 2017. My father,
[Father A variant, with Family name 1], lives in [Town 1], near Hillah, in Babel Governorate, Iraq. My
father had a stroke in 2011 and lives with my [Sibling B].
I have [siblings] in Iraq. They are [Sibling A] (born [DOB 4]), [Sibling B] (born [DOB 5]) and [Sibling D] (born [DOB 7]).
[Sibling A] and [Sibling D] live in the [Town 2] area of Baghdad, Iraq.
My [Sibling C was] (born [DOB 6]). Tragically, a
militia group killed him on [a day in] August 2010 in Iraq.
I do not have any other brothers or sisters, whether alive or deceased. I have never had a
brother called [Mr A’s name].
I have never been known as [Alias A variant], and I have never used that name.
I have only ever used the family name of [Family name 1]. My Iraqi ID card, which I obtained in the
year 2020, lists my father’s and paternal grandfather’s names, my given name, and my family
name. This is the standard naming practice in Iraq.
In Australia, I have only ever been known as [the applicant’s name with Family name 1]. I have lived in Australia since
October 2010.
I only applied for a visa to come to Australia after I came to Australia. I am not aware of
anyone trying to sponsor me to Australia before I came to Australia.
I attended primary school in [Town 2] area at [School 1], where I completed year 6. My family then moved from the [Town 2] area
to [Town 1] in Hillah Governorate in about 2006.
I continued my education from [specified grades] in the [named]
School and then to High School in [Town 1] until about 2009.
The main points for my claims for protection were made by me in answer to questions in my
arrival interview with an Immigration officer on 26 November 2010 ([document number]). My claims for a
protection visa were also set out in my statutory declaration of 9 January 2011 ([document number]). I
confirm that what I said in that interview and in my statutory declaration was true and correct.
I was able to get work as [an occupation 1] for [an international Agency 1] in the [named] area, about
30 km southeast of [Town 1], my family home area, during the school holidays. It was
because of this work that I believe my brother was targeted and killed by some militia group
opposed to the US-led Coalition forces in Iraq. I left school after my brother was killed.
I left Iraq in September 2010, and I went to [Country 2]. I was there for a few days, and then I
went to Indonesia. I was in Indonesia for about two weeks. I then joined a boat leaving for
Australia. My family organised the money to pay the fees for the agents for my travel from Iraq
to Australia.
I came to Christmas Island, Australia [in] October 2010. I have always stayed in Australia
since I arrived. I was released from Christmas Island detention in early 2011.
I was transferred from detention on Christmas Island to Melbourne, where I stayed for a few
months. I was released from detention in May 2011 when my permanent protection visa was
granted on 4 May 2011. I was in a house or hotel with other Iraqi refugees from detention. I was
assisted in obtaining a bank account and a Medicare card.
I moved to Sydney with some people who had also been in detention. I then moved to first
lived in [Address 1] which I found on Gumtree. I rented a room there and there was an Australian lady and her daughter there from about June 2011 until the end of the year.
I completed a course in English at [a named] Centre in 2011. I also completed courses in [other subjects] through
the same Centre in 2011.
I was then granted a scholarship to attend High School at [School 3] in [Town 3]. I
was attending the [English] course in [Town 4], and I met the chaplain there, and he
helped me get the scholarship for the school in [Town 3].
Initially, I was in [Address 2], [Town 3] as a temporary shared accommodation organised
by the school. I then lived in the Boarding House of the school.
I finished [grades] at the school and finished my studies in December 2013. I
completed my [grade] at the [School 3].
I moved back to live in Sydney with an Iraqi woman I had met in detention. I shared with her
for a few weeks in [a named suburb]. I then moved to a unit at [Address 3]. I cannot
now remember the unit number. I shared the unit with a man of [Country 3] background. He was a taxi driver, and I remember his name was [name]. I was there until about June 2014.
I moved to [Address 4] in June 2014. I have lived there ever since then. I lived
there by myself. It is a government housing property, and I pay rent to [a named agency]. There are blocks of 4 units together, and some houses a total of 21 properties in the block.
I was studying English after school. I completed English for further study. I applied for English for academic purposes but could not do this because of issues with my citizenship application. I studied [Course 1] at [College 1] in [Town 4].
I completed the [Course 2] in July 2019. I was studying [Course 3] until I
had problems with my citizenship application and the former lawyer who disappeared. I was
recently accepted to study a [Course 4] at [College 2].
Centrelink paid me as a Jobseeker during my study, but this job seeker benefit was stopped
due to the visa cancellation by the Department of Immigration. I have no other source of
income.
I was seeing a psychologist after the death of my mother in 2017. I was also taking a sleeping
tablet as I was very upset then. I only took it for a while; I did not want to keep taking pills and
not become addicted to the tablets. Occasionally, I may take a sleeping tablet to help me relax,
especially with the stress I am under because of the decision in my citizenship application.
I am currently studying [Course 5] from [College 2].
I plan to go to university in 2024 or 2025 and obtain a degree in [subject]
after I finish my [Course 5]. I am also considering applying to do an
undergraduate degree in [anther subject] as a mature age student.
I have done some volunteer work for several organisations. This includes [Agency 2] group in Sydney, where I have volunteered as a [role]. I have a Working with Children
Check for my volunteer work. I also volunteer with the [Agency 3] youth program. I have been a blood donor in NSW.
I have never been convicted of any criminal offences in Australia or overseas.
In [a] written statement the applicant’s [Sibling A] writes:
l was born in Baghdad. Iraq on [DOB 4]. I am an Iraqi citizen. I am married. I have [specified siblings] in Iraq and a brother in Australia. My [siblings] are [Sibling B] ([DOB 5]) and [Sibling D] ([DOB 7]).
My mother died and my father lives with my [Sibling B]. My father's name is [Father A variant, with Family name 1]. and he was born in [specified year 2]. My mother's name was [Mother A variant]. and she was born in [specified year 3].
My [Sibling C’s] date of birth was [DOB 6]. My brother [the applicant] was born on [DOB variant]. My [Sibling C] was sadly killed on [the day in] August 2010 soon after that my brother [the applicant] had to leave Iraq and I know he is now living in Australia.
I live with my husband in [Town 2] area of Baghdad. My father and [Sibling B] live in Babel Governorate. My sister [Sibling D] lives in [Town 2], Baghdad.
My father is ill and has a heart condition as well as being paralysed.
I do not know anyone called [Mr A]. I have never had a brother by that name. My [siblings include] [the applicant] and [Sibling C].
On 10 October 2023 the applicant’s representative submitted a copy of the applicant’s father’s Iraqi National Personal Identity card, issued [in] March 2010.
Tribunal Hearing, 10 October 2023
The applicant appeared before the Tribunal on 10 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The following is a summary of the information provided by the applicant at the hearing:
a.The applicant lived at [Address 2] in [Town 3] when his school placed him there in his [grades], until they found him a place in boarding. He was in [Town 3] in [Address 2] for a couple of months in 2012. He has no idea why [Mr A] also lived at the same address.
b.The applicant has no idea why the land line phone number for his home at [Address 4] is registered to the name ‘[Mr A]’. The applicant currently lives at the address.
c.The applicant does not know who lived at [Address 5]. He knows that [Friend A] is a friend of his former girlfriend, [Girlfriend A]. [Girlfriend A] told the applicant about [Friend A] when he was doing his citizenship application. [Girlfriend A] always talked about her because she was a close friend. The applicant met her once, in a café. The Tribunal asked the applicant why [Friend A’s] residential address was the same as an address for [Mr A] and he responded that he had no knowledge.
d.The applicant has never met [Mr A]. The applicant would like to meet him, in front of the law, so meet him legally. The Tribunal asked the applicant if he had made any efforts to locate [Mr A] and he responded that his former solicitor tried to contact him. The applicant did not use any community contacts to try to find [Mr A] because he didn’t want to cause any more trouble, the applicant respects the law in Australia. The Tribunal asked the applicant how it would cause trouble if the applicant located [Mr A], given it could help him solve his troubles. The applicant responded that he wished he could bring [Mr A] to the Tribunal. The Tribunal asked why then he had made no effort to locate [Mr A]. The applicant asked how would he find [Mr A].
e.The applicant uses very little social media. He uses [a service] and messages his friends, and sometimes [another service]. He uses his name ‘[the applicant’s first name]’. His family in Iraq use ‘[Service 1]’.
f.The applicant’s name is [name, with Family name 1]. His father’s grandfather’s name is [name]. The Tribunal put to the applicant that [Mr A’s] full name is also [Mr A variant], so they share the same father, grandfather and great grandfather’s names, “[names, together]”. The applicant responded that lots of names are the same in Iraq.
g.The applicant has [specified siblings]. He had [a brother] who is deceased. [Detail deleted.]
h.The applicant has no relatives in Australia.
i.The applicant’s mother and father were related before marriage, they were first cousins from the ‘[Family name 1]’ tribe. The Tribunal put to the applicant that tribal names are reportedly not commonly used in Iraq. The applicant responded that they are used commonly in departments and society.
j.The Tribunal put to the applicant that the English translation of his father’s Home Registration Identity Card seemed wrong in that his name recorded in Arabic appeared to be “[names, together]”, and not “[names, with Family name A]” as provided in the English translation. The applicant agreed this was a mistake in the translation. He has no clue why. His former solicitor organised it. All the translated documents were done together.
k.The Tribunal asked the applicant how he obtained his Iraqi Personal Identity Card in 2020 and he responded that his father obtained it for the applicant. The applicant’s father was not well but his [Sibling B] took him to get it.   The Tribunal asked the applicant what documents were submitted to be issued the identity card. The applicant responded the documents his father had for the family, namely his ID Card.
l.The applicant’s original Iraqi Personal ID Card was taken by the smugglers during his journey to Australia. The applicant sent a photograph of himself to Iraq to be used in his new identity card. He doesn’t know how he did so, it may have been through the application ‘Whats App’. He no longer has a copy of the message but will try to find it. The Tribunal asked him how he usually communicated with his family and he said through [Service 1]. He will definitely have a copy of the message in either [Service 1] or Whats App.
m.The applicant first tried to obtain the Iraqi identity card in 2019 through his then lawyer who had knowledge of Iraqi laws. The applicant left Iraq at a young age, before he could legally get an ID Card.
n.The Tribunal asked the applicant why the Personal Identity cards for himself and his family members all started with the same six digits. The Tribunal put to the applicant that country information stated that this number indicated the location and batch of the cards. The applicant responded that he had no idea.
o.The applicant has never returned to Iraq. He just can’t because it is safe in Australia. He didn’t have the chance to travel. Even when his mother passed away he did not return, he just focussed upon his future and studying.
p.He has not broken any laws in Australia. He will provide an AFP Police Clearance Certificate.   He has never been investigated by the police to his knowledge. He does not recall giving any statement to the police.
q.The Tribunal put to the applicant under s 359AA of the Act that there was police information that the applicant had provided an alibi for [Mr A]. The applicant responded that he did not. The Tribunal asked the applicant why the police then would have a record of the applicant doing so. The applicant responded that he did not give a statement.
r.The Tribunal put to the applicant that there were allegations from other people that he and [Mr A] are brothers and have the same parents. The applicant responded that he had no clue. The Tribunal asked why people would make such allegations and he responded they might have some problems. The Tribunal asked the applicant what problems they would have with him. He responded ‘none’. He has no explanation, he would never hurt anyone.
s.The Tribunal put to the applicant that the names of his mother and his sisters were the same as for [Mr A’s] family. The applicant responded that the family composition is different. The Tribunal put to the applicant that the place of residence in Iraq, in Hillah, Babylon, was the same for his family and [Mr A’s] family.   The applicant responded he had no idea.
t.The Tribunal asked the applicant why [Mr A] would use the applicant’s photograph in a visa application lodged from Indonesia. The applicant responded that in Iraq photos are hung up on the door and there is no confidentiality. The Tribunal asked why [Mr A] would do this and the applicant responded that he had no information. He has no explanation. The Tribunal asked why [Mr A] would do this as it would cause him problems to include details and photograph of the wrong person in a visa application. The applicant responded he has no idea, this is what is causing him trouble, this is destroying his life. The Tribunal asked why then he had done very little to find out why it had happened. The applicant responded that he feels unable to help himself or know what to do. His current representative is helping and guiding him because the applicant doesn’t know what to do by himself.
u.The applicant’s father has had a stroke and is not able to walk. He is paralysed on one side and uses a wheelchair. He can speak but is not very coherent. He talks very slowly but can be understood. He lives with [Sibling B]. They can give evidence to the Tribunal but the internet in the area is a bit weak.
v.The applicant can’t remember his former girlfriend’s full name. She is not named in the applicant’s Citizenship application. The Tribunal put to the applicant that he included [Friend A’s] name and phone number in his application, as [Address 5]. The applicant responded yes. The Tribunal put to the applicant that [Mr A] was also recorded to use that address.   The applicant responded that [Girlfriend A] put it in because [Friend A] is a law student. He has no idea why it is the same address.
w.The Tribunal put to the applicant that in the subclass 202 visa application sponsored by [Mr A] the person named in the application claimed to work as [an occupation 1] in [Agency 1], as did the applicant in his onshore Protection visa application. The applicant responded that he had no explanation but many people worked at the [Agency 1] because the pay was very good.
x.The Tribunal asked the applicant if he could think of any explanation for the coinciding information apart from the explanation that the information did relate to the applicant and it was his visa application [Mr A] was sponsoring. The applicant responded that he has submitted information about his identity. The only explanation he can think of is ‘identity fraud’. The Tribunal asked him for what purpose and he responded that he didn’t know. The Tribunal asked the applicant if he had tried to contact any of the people involved. He responded that it was from long days ago, all the phone numbers are not there anymore and the people are now married.
y.The Tribunal put to the applicant that it is possible [Mr A’s] last name is also [Family name 1]. The applicant responded that he knows who is in the [Family name 1] tribe. The Tribunal put to the applicant that [Family name 1] would likely be a very large tribe in Iraq and the applicant agreed.
z.The Tribunal put to the applicant that it is possible to locate [Mr A variant] on Facebook and asked if the applicant had tried to do this. The applicant responded no. He doesn’t think [Mr A] can help. The Tribunal asked the applicant why then his former solicitor tried to contact [Mr A] because he thought it could help the applicant’s case, and the applicant did not respond.
aa.The Tribunal put to the applicant that there was a similarity in the appearances of the applicant and photographs of [Mr A]. The applicant responded that he had no idea. The applicant’s whole life in Australia is on hold because of a person he has no connection to. The applicant is a victim.
bb.The applicant first met his wife in the beginning of the year, in the library at [Town 4]. All of her family are living in Australia. They were originally from Baghdad. They had a wedding which her family attended. It was in their house in [a named suburb]. No one from the applicant’s family attended. An Islamic Sheikh conducted the wedding in a Shia ceremony.
Oher Information

On 27 October 2023 the Tribunal received a copy of a late 2018 police investigation report regarding a fire at a NSW property owned by [Mr A]. During the investigation [Mr A] and the applicant were both reportedly interviewed by the police. In the report the applicant is described as the brother of [Mr A]. There is a record of interview between the police and the applicant in which he spoke of [Mr A] being a family friend. There is a record of interview between the police and [Mr A] in which he spoke of the applicant being a friend and of the applicant going to [Mr A’s] house at [Address 5] to cut [Mr A’s] hair.
Tribunal Hearing, 2 November 2023
The applicant appeared again before the Tribunal on 2 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [Wife A], and his [Sibling A] and [Sibling D]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The following is a summary of the information provided by the applicant’s wife, [Wife A], at the hearing:
a.She is [age] years old. She and the applicant married [in] May 2023. The applicant is [age] years old.
b.She lives with the applicant at [Address 4].
c.To marry they had a small nikkah gathering at her parents’ house with a marriage celebrant. Her family, relatives and friends attended and the applicant’s friends attended. She doesn’t know how many of the applicant’s friends attended because the men and women sit separately. She doesn’t know her husband’s friends. He knows one or two of her friends. She does not personally know his friends, she just hears him talking to them. It is part of their culture not to interact.
d.Her aunts are married. She knows their husbands and interacts with them. If her brother brings his friends over then she doesn’t come out.
e.The Tribunal showed her a photograph of [Mr A] and she stated she does not know him.
f.She has spoken with the applicant’s [siblings] in Iraq and his father, that is all. The applicant had [a brother] who passed away. [Detail deleted.]
g.She would like to build a family in Australia with the applicant.
h.She is studying [a subject] and wants to be able to study [another subject].
i.She was raised in Australia. Her education, friends, everything is here. Australia is her home. She has never lived in Iraq. She has visited Baghdad, Najaf and Kerbala maybe three times. She is Shia.
j.She and the applicant met in [Town 4] library. The applicant approached her and introduced himself. He asked her if she is Iraqi. She can’t interact with someone her brother knows but she can interact with male students at university.
k.The applicant interacts with her family and they all love him. She has [nieces] and [nephews] ranging in age between [age range]. They get along very well with the applicant and love him very much. They will be very sad if they did not see him. They like to come over a lot and sleep over.
The following is a summary of the information provided by the applicant’s [Sibling A] at the hearing:
a.[Sibling A] lives in [Town 2] in [District 1]. [Sibling D] is living in the same area.
b.[Sibling A’s] grandparents lived in Baghdad but [Sibling A] is unsure where.
c.[Sibling A] is married. [Detail deleted.] They have [number] children. [They have] not travelled outside Iraq and [do] not have a passport.
d.[Sibling A obtained an] Iraqi Personal ID Card when [they] married in 2003. [I was obtained] in [Town 2] at the Registration office, about 20 years ago. The Tribunal put to [Sibling A] that the year of issue on [the] card is recorded as ‘2015’. [Sibling A] responded [that in 2003] information was changed and they issued [the new] card. In 2003 there was an uprising.
e.[Sibling A] has [specified siblings including the applicant]. [Another] brother passed away. [They do] not have a brother ‘[Mr A]’.
f.[Sibling A] has spoken to the applicant’s wife [Wife A].
g.[They] would like the Tribunal to look at [the applicant’s] case with mercy. He has been in Australia for quite a while and hasn’t received his entitlements.
The following is a summary of the information provided by the applicant’s [Sibling D] at the hearing:
a.[Sibling D] lives in [Town 2] in [District 1].
b.[Their] grandparents also lived in [District 1].
c.[Sibling D] has not travelled outside Iraq and [does not] have a passport.
d.[Sibling D] is married. [Detail deleted.] He is the brother of [Sibling A’s] [spouse]. Her husband is a distant cousin on her father’s side.
e.[Sibling D] obtained [an] Iraqi Personal ID Card in 2007 from the office. [One was obtained] at birth then it changes at marriage to new details. This was in 2007.
f.[They have specified siblings] but one, [Sibling C], has died. [They do] not have a brother [Mr A].
g.Her father is [Father A variant]. He is disabled.
h.She has spoken with [the applicant’s] wife, [Wife A].
The following is a summary of the information provided by the applicant at the hearing:
a.Under s 359AA of the Act the Tribunal put to the applicant the parts of the NSW Police 2018 investigation report regarding [Mr A] and the applicant. The applicant responded that the information in the police report is wrong and he did not work as a barber. In 2017 his mother passed away and in late 2018 he was not of sound mind. He does not recall speaking to the police. All he can say is that someone stole his identity. He spoke to the police but he was in shock because of his mother’s death in 2017.
b.He suffered a lot because of the death of his mother. It was her last wish to see him and he is still suffering. The Tribunal put to the applicant that in 2017 he had permanent residence and was able to travel from Australia if he wished. The applicant responded yes but he did not feel safe travelling.
c.The Tribunal asked why anyone would steal his identity and he responded that he did not know but the people who murdered his brother may be hunting him.
d.If his visa remains cancelled he will not be able to continue with his study and make something out of himself for his future.
e.He is married and spent some time here. He feels safe and secure here. There would be no opportunity for him in Iraq. He would have no rights there. He could not even sit in court there and argue for his rights. He has lived his life here. His relations are here. His life is built here. He wants to continue his study and repay the community. He has been kicked out of [college] studies. He would like to go back to work in the [specified] industry and maybe study [at University].
f.He does not send any money to his family in Iraq.
g.He cannot recall which of his friends attended his Nikkah in May 2023. He will submit their names to Tribunal after the hearing.
Post-Hearing Submissions
On 14 November 2023 the applicant’s representative submitted in writing that the department’s s 375A Certificate was either wholly invalid or alternatively did not validly cover all the documents specified in it.
On 16 November 2023 the applicant’s representative provided written submissions outlining the following:
[The applicant] presents as a well mannered and educated person. His police clearance confirms he has not committed any offences. He has been in the community for more than 10 years and this demonstrates that he is of good character and of no risk to the Australian Community. He is clearly determined to better himself with further qualifications. He says he wishes to make something of himself to pay back this country. He has had to cease studying because of his visa cancellation. He has volunteered for the [Agency 3] and [Agency 2]. If the visa cancellation is set aside he will contribute positively to the Australian Community for many years to come.
The applicant has assimilated into Australia and this is his home.
The applicant’s wife [Wife A] demonstrated genuine affection for the applicant. The Tribunal would be satisfied that their marriage is legitimate and they are a committed couple. They are planning to have a baby very soon.
[Wife A] was born in Australia and lived here her whole life. Moving to Iraq would be crushing for [Wife A]- she will not be able to pursue her plans of becoming [an occupation 2] in Australia. She has no desire to move to Iraq.
If the applicant’s visa cancellation is affirmed this will be devastating for [Wife A]. This is a very weighty matter in exercising the discretion.
[Wife A has nieces and nephews] aged [age range]. [Wife A] and the applicant are close to her [this] family. [One child] likes to sleep over at their place. It will not be in these children’s best interest if the visa cancellation is affirmed and the applicant is either detained or removed.
The applicant’s sisters in Iraq were familiar with [Wife A] and seemed a little bemused that their knowing her could be in question.
[Sibling D] and [Sibling A] confirmed they are married to [relatives] with similar names. Further the applicant’s parents were first cousins.
The applicant’s evidence about not being able to return to Iraq, even for the funeral of his mother, demonstrates the continuing fear he holds of returning there.
Section 197C (3) of the Migration Act will operate to prevent the applicant being returned to Iraq involuntarily. If he remains in Australia with a cancelled visa then s189 of the Act requires that he be detained. The chance of the applicant voluntarily returning to Iraq is remote. He is likely to face being detained for a significant period of time.
On 20 November 2023 the applicant’s representative submitted several photographs of the applicant with his [nieces and nephews].
On 23 January 2024 the applicant submitted an Australian Criminal Intelligence Commission Certificate stating that there were no disclosable court outcomes in relation to the applicant.
Country Information
DFAT’s most recent ‘Country Information Report, Iraq’, published in January 2023 contains the following information:
Although classified as an upper middle-income country by the World Bank, Iraq’s social
indicators, including on health, education and poverty, are poor. There is significant inequality, and 19 per cent of the population lives below the national poverty line of approximately AUD 110 per month.
Unemployment is high, and labour force participation is among the lowest in the world. Women and young people are particularly likely to be unemployed; women make up just 13 per cent of the labour force, and more than a fifth of working-age young people do not have a job and are not engaged in education or training. The public sector is the largest employer but demand for public service employment outstrips supply of jobs. The World Bank’s Spring 2022 Iraq economic Monitor assesses Iraq will continue to struggle to attract foreign investment due to its volatile security environment, high levels of corruption, and administrative inefficiencies.
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Health
The overall quality and availability of healthcare in Iraq is low. There is a nationwide shortage of
doctors and nurses, a situation made worse by prolonged conflict and a long-term brain-drain of medical professionals. The Ministry of Health (MoH) is the primary health care provider. Chronic underinvestment and corruption have undermined its capacity to deliver quality healthcare. Waiting lists are long and hospitals often lack essential supplies such as cancer drugs. Iraqis who can afford to use private hospitals and clinics prefer them but, because private health insurance is unavailable, this can be expensive. The quality and availability of healthcare is slightly better in the Kurdistan Region of Iraq (KRI).
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Security
... Security incidents occur often and without warning, including rocket attacks, mortar attacks, attacks with improvised explosive devices (IEDs), grenade attacks, small arms fire and assassinations. Targets have included security forces, government offices, diplomatic missions, US-led coalition forces, Iraqi and Turkish military facilities, checkpoints, police stations, recruiting centres, airports and public transport centres, places of worship and religious gatherings, markets, non-government organisations, schools and universities, and civilian infrastructure. Violent crime is common, including kidnapping, murder and robbery. Other
serious crime includes drug and people trafficking, prostitution and illegal organ harvesting. Organised criminal gangs, militias and armed tribal groups are significant threats. … Gun violence is common throughout Iraq. Gun ownership is among the highest in the world, and most households own at least one firearm. The ubiquity of weapons and a strong ‘honour’ culture mean minor disputes often rapidly deteriorate into violence, including murder.
Despite the territorial defeat of Da’esh in December 2017, Da’esh continues to launch attacks on security forces and civilians in Iraq, including suicide bombings and IED attacks. The group operates from safe havens in the Western Desert and along the disputed territories between federal Iraq and the KRI, supported by Da’esh fighters based in Syria. In 2021, Da’esh carried out more than 1,000 attacks in Iraq, killing or injuring over 2,000 people. These included a suicide bombing in Teyeran Square that killed 32 people in January 2021 and an IED attack in Madinat al-Sadr that killed 35 people in July 2021. Both attacks targeted Shi’a populations. According to the US Department of State, Da’esh also attacked electricity and water infrastructure, and abducted and killed civilians and security personnel, throughout 2021.
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Women
For much of the 20th century, women in Iraq made significant progress towards equality, achieving relatively high rates of tertiary education and employment in the professions and civil service. Many of these advances were reversed in the latter part of Saddam’s rule. Since the 2003 US-led military action, armed conflict and resurgent tribal and religious influences have led to a serious deterioration in the situation of women in Iraq. While individual circumstances vary, women across the spectrum of Iraqi society are affected by issues such as high rates of domestic and gender-based violence, low rates of economic participation, unfair laws, abusive cultural practices, exclusion from decision-making and inadequate state protection.
Article 14 of the constitution guarantees equality before the law without discrimination based on
gender. Nevertheless, a variety of laws discriminate against women, including in criminal, family, religious, labour and inheritance matters. In some cases, a woman’s testimony in a court of law is worth half that of a man. Female heirs inherit less, and male heirs are required to provide them financial support. While women can initiate divorce proceedings, they are not entitled to alimony, and women seeking a divorce are sometimes required to return their dowry. Fathers are automatically awarded guardianship of their children in divorce cases, although a divorced mother may be granted custody of her children until age 10 (extendable by a court until age 15), at which time the child may choose with which parent to live. Women are required by law to have the consent of a male guardian to acquire a passport. Women enjoy relatively
more legal rights in the KRI than in other parts of Iraq. Violence and insecurity often constrain Iraqi women to traditional family roles and limit their access to employment and education. Illiteracy is twice as common among women as men. Only 14 per cent of women are working or actively seeking work compared to 73 per cent of men. Women are guaranteed 25 per cent of seats in parliament but are rarely appointed to influential roles and rarely participate in the leadership of their parties. As of 2022, there were three women ministers in the 21-person cabinet.
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DFAT assesses that the majority of Iraqi women, regardless of ethnicity or socio-economic status, face a high risk of official discrimination and a high risk of societal discrimination. Iraqi women and girls face a high risk of gender-based violence, including sexual assault and domestic violence, while Iraqi girls face a high risk of being forced into early or involuntary marriage. Iraqi women working to advocate for women’s rights face a high risk of violence, including targeted killings
The December 2015 Norwegian LandInfo report, ‘Iraq: Travel documents and other identity documents’, contains the following:
All Iraqi citizens should carry a national ID card. The ID card is issued at the local offices of the Civil Status Affairs Directorate, situated all over the country. Iraqis abroad can give a relative in Iraq a power of attorney to apply for a replacement of a lost or damaged ID card or apply through an embassy. Many fraudulent ID cards are circulating.
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All Iraqi nationals must have a national civil ID card. The card must include the following data:
• Personal name (ism)
• Name of father and paternal grandfather (nasab)
• Surname (laqab)
• Name of mother and maternal grandfather
• Gender
• Signature of authorised representative
• Date of issue
• Signature of issuer
• Full name of issuer
• Date of birth in digits and letters
• Place of birth
• Marital status
• Name of spouse
• Religious affiliation
The right-hand side of the card’s front page contains the name of the issuing regional office, a register number indicating the number of the family book in which the person is registered, as well as the page number in the family book. The serial number is entered on the top left-hand side. The font of the serial number is serif, and the figures increase in size. These digits and the signature of the issuer give an indication of the authenticity of the card (Swedish Migration Agency, 2009).
The card is called Bitaka shakhsiyeh in Arabic, but is sometimes also called Bitaqa hawwiya.
All Iraqi nationals are issued such a card on the basis of the information in the family register. New-borns are issued their first ID card on the basis of their birth certificate and their parents’ ID cards (GDN, meeting in Baghdad, April 2012). The card can be renewed several times and should be renewed in connection with changes in marital status and relocation. A new date of issue and a new serial number are entered on the new card. There are no duplicates of the ID card, but the old serial number is entered by hand below the new serial number on the new ID card. Sometimes the word ‘renewal’ is written above the new serial number (Norwegian ID Centre, 2013). According to the Director-General of GDN (Meeting, April 2012), it is normal for children to be issued an ID card from the age of one. ID cards must be renewed at the population registration office where the person is registered.
The ID card is deemed to be the most important personal document, since it is used in all contact with the public authorities, the health service, the social welfare services, schools, and when buying and selling houses and cars. In addition, the ID card must be presented when applying for other official documents, for example a passport.
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All ID cards have a hologram affixed to the photo. The hologram is produced outside Iraq, and the number on the hologram is just a serial number from the manufacturer (Norwegian ID Centre, 2013). The Iraqi Directorate of Identity Affairs has informed the Norwegian ID Centre that it registers which hologram series are sent to which offices. The hologram contains a security element that should be destroyed if someone attempts to remove it after the hologram is affixed (Norwegian ID Centre, 2013).
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WHERE ARE ID CARDS ISSUED?
ID cards are issued by the local population registration offices (Civil Status Departments). They are found across the country and in most cities and governorate capitals. ID cards can only be issued in the district where someone is registered.
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7.3 APPLICATION PROCEDURE
Applicants must contact the local population registration office in the governorate where they are registered and present the necessary documentation.
A husband can apply for and be issued civil ID cards for his wife and children, unless it concerns an application to replace a lost ID card. In such case, everyone except children under the age of 12 must meet in person (GDN, meeting in Baghdad, April 2012).
7.4 DOCUMENTATION REQUIREMENTS
To be issued an ID card, applicants must fill in an application form signed by the head of the household, a guardian or a lawyer, and enclose two passport photos. They must also be able to document their identity by submitting a birth certificate (upon first issuing) and the ID card of a close relative such as their father or grandfather.
It costs 1,000 Iraqi dinars (approximately USD 8) to be issued an ID card (GDN, meeting in Baghdad, April 2012).
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7.5 CHECKING PERSONAL DATA
The population registration offices are tasked with issuing ID cards to local Iraqi nationals. The offices check the information provided against the family registers before issuing ID cards. The system is not electronic, but the local population registration offices send the information to the central population register in Baghdad (GDN, meeting in Baghdad, April 2012). If an ID card is lost, the applicant’s identity can be approved on the basis of his/her father or brother’s ID card, which is then checked in the same way (GDN, meeting in Baghdad, April 2012).
7.6 ID CARDS ISSUED VIA A PROXY
In Iraq, ID cards can be issued via a proxy. A husband and father can apply for and be issued ID cards for his wife and children. If the card is lost, however, the holder must meet in person to be issued a new card (GDN, meeting in Baghdad, April 2012). This does not apply to children under the age of 12.
It is also possible to authorise another person to apply for an ID card on one’s behalf. In such case, it is normal to ask a relative for help. The identity of both the applicant and the authorised person must then be documented.
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7.7 OBTAINING ID CARDS FROM ABROAD
7.7.1 Applying for a national ID card from abroad
Iraqi nationals can apply for new ID cards via the Iraqi embassy in Oslo (the Iraqi embassy in Norway, email, March 2013). Alternatively, Iraqis in Norway can authorise a proxy to apply for and collect an ID card at the local population registration office where they are registered. When applying for a new card via a proxy, the applicant must issue a written authorisation to a person in the applicant’s home country. The authorisation shall be sent via the embassy in the country where the applicant is staying, and the embassy must stamp the letter. This can be difficult if the applicant is unable to verify his/her identity, however. This means that the applicant must present a passport, a birth certificate, an old ID card or a nationality certificate. When the consul in Norway was asked whether it was likely that a local population registration office issued new ID cards via a proxy in return for payment in cases where the authorisation had not been certified by an embassy, the consul said that it was possible (Iraqi embassy in Norway, telephone conversation, March 2012).
An ID card issued to a proxy without an authorisation stamped by an embassy is considered valid in Iraq as long as the ID card itself is genuine.
All ID documents issued in Iraq to nationals living or staying abroad must be certified by an Iraqi embassy or consulate in the country where the Iraqi national is staying, or, if relevant, by another embassy if the host country does not have an Iraqi embassy (Iraqi Ministry of Foreign Affairs, n.d.b).
…
All cards are printed in the same place and sent to the governorates in serial number order. The local population registration offices in the governorates fill in the personal details by hand, affix the photo and stamp the card.
…
Information that Landinfo has received over time through the Norwegian embassy in Jordan from diplomatic sources in Amman who do not wish to be quoted directly, indicates that up to 50 per cent of the ID cards in circulation may be fake. According to information from diplomatic sources in Amman in 2011 (as quoted by the Norwegian embassy in Jordan, email, February 2011), it is supposedly still relatively easy to buy fake or stolen ID cards in Iraq.
The same sources say that they have seen both fabricated ID documents and genuine ID documents that have been altered. The paper quality and background print will often reveal if the ID card itself is fabricated. These cards have unclear prints and may lack fibres, or there may be errors in the fibre pattern. Many fake ID cards that appear genuine can contain both genuine and false personal data. According to diplomatic sources in Amman, the most common signs of forgery in these cards are false stamps with spelling mistakes and false document numbers.
According to the Norwegian ID Centre (2013), there are quite a few fake Iraqi ID cards with genuine holograms.
According to a Western embassy in Amman (as quoted by the Norwegian embassy in Jordan, email, February 2011), ID cards are the most frequently forged personal documents, second only to birth certificates.
CONSIDERATION OF CLAIMS AND EVIDENCE

Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
There is no onus upon an applicant to establish that a ground for cancellation does not exist. Generally, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister, or on review, the Tribunal.[1] In a matter involving a visa cancellation under s.116 of the Act, Zhao v MIMA, the Court stated:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[2]
[1] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].
[2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
The Court’s comments would be applicable to cancellations under s.109 of the Act.
In the civil context, Dixon J in the High Court held that:
the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]’.[3]
[3] Briginshaw v Briginshaw (1938) 60 CLR 336, per Dixon J at 362].
While this principle may not have direct application in administrative law, the Tribunal considers it is appropriate to bear in mind the gravity of the consequences in deciding whether the ground for cancellation is made out.[4]
[4] In Tarasovski v MILGEA (1993) 45 FCR 570 at 572-3 and Singh v MIEA (unreported, Sackville J, Federal Court of Australia, 6 December 1994) at [16], the principle explained by the High Court in Briginshaw was referred to with approval in the different statutory context of deportation decisions based on the old s.20, the precursor to ss.101-109.
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in relation to the information he provided in his Protection visa application in Parts B and C of Form 866 – Application for a Protection (Class XA) visa, in the following respects (in summary):
Part B
Question 1 – the applicant provided his name as ‘[the applicant]’; whereas other information showed his name is [Alias A].
Question 2 – the applicant answered ‘no’ as to whether he had previously applied for refugee status or a protection visa from the Department; whereas Departmental records indicated he had previously applied for a Global Special Humanitarian (subclass 202) visa in 2010, under the identity [Alias A] (born [DOB 9]) while in Indonesia.
Question 10 – the applicant answered ‘no’ to the question as to whether he had close relatives in Australia at the time of his application; whereas other information indicated his brother [Mr A variant] was in Australia at the time.
Part C
Question 1 – the applicant gave his name as [the applicant’s name]; whereas other information showed his name is [Alias A].
Question 4 – the applicant did not provide an answer as to whether he was known by any other names; whereas other information indicated he had the names ‘[Alias A]’ and [variations on Alias A].
Question 7 – the applicant gave his date of birth as [DOB 1]; whereas other information indicated it was [DOB 9].
In effect the above means the applicant was considered by the delegate to have provided incorrect information in relation to his name; names he had used or been known by; his date of birth; a previous application for refugee status or a Protection visa; and the presence of a brother in Australia. The Tribunal will now consider each of these aspects of the applicant’s information.
The applicant’s name
In his onshore Protection visa application, Form 866, the applicant provided his given names as ‘[specified]’ and his family name as ‘[Family name 1]’.
In support of his claimed name the applicant subsequently submitted a purported school record, issued in October 2016, naming him as ‘[the applicant’s full name, with Family name 1]’ and an Iraqi National ID Card, issued in January 2020, naming him as ‘[the applicant’s name]’. He has also submitted National ID Cards for his [siblings] and father and Death Certificates for his mother and a brother [Sibling C], which each record the family name as ‘[Family name 1]’.
The applicant also submitted a copy of his father’s Iraqi Household Registration card with an English translation that recorded his father’s last name as ‘[Family name 1]’. However the applicant agreed at hearing that the translation was incorrect as his father’s name was recorded as “[names together]” on the Card, and the name ‘[Family name 1]’ did not appear on it.
The applicant submitted other Iraqi documents for his parents which do not include the name ‘[Family name 1]’. They also do not contain the name ‘[Alias 1 family name]’.
In support of the contention that the applicant’s name is [Alias 1 variant] is the existence of the subclass 204 visa application which includes the applicant’s details and the Certificate of Iraqi ID Card issued in 1998 in the name [Alias 1 further variant].
The Tribunal considers that the applicant’s answer to the question as to his given names is correct, according to all the relevant sources of information. All of them state that his given name is ‘[specified]’ or a spelling variation with the same or very similar pronunciation. The Tribunal therefore is not satisfied that the applicant provided incorrect information in relation to his given names.
The Tribunal notes that the 866 form asks for the ‘family name’, not the full name or for the father’s or grandfather’s names to be included. Therefore the provision of one name, [Family name 1] or [Alias 1 family name], is not incorrect simply because it does not include patrilineal names as may be customary.
The Tribunal considers that the documents submitted by the applicant in support of his claim that his family name is ‘[Family name 1]’ each raise some reliability concerns. The Iraqi National Civil ID Cards for himself, his siblings and his father each bear an eight digit batch and location identification code with the first six digits being identical. This is despite them being purportedly issued over a timeframe starting in 2007 and ending in 2020 and being issued at two different locations, [Town 1] in Babylon and [Town 2] in Baghdad. This suggests the cards were not genuinely issued at the time or place that is recorded on the cards. This casts significant doubt that they were lawfully issued by the Iraqi authorities.
There is also doubt that the applicant has a brother called [Sibling C] so that the copy of the Death Certificate purported to be for him may not be genuine, or that [Sibling C] is not the applicant’s brother. The copy submitted to the Tribunal is of poor quality and there appears to be a possibility that the ink quality of the words ‘[Sibling C name]’ has some difference from the rest of the document. However the copy is too poor quality to judge this with any accuracy so it also may not be the case.
The Tribunal considers that the purported School report issued in October 2016 lacks reliability given the date of issue and lack of any indication of how records were checked, if they were, or the source of the details recorded on the paper.
The Death Certificate for the applicant’s mother has no apparent concerns on its face. However her name appearing as ‘[Family name 1]’ does not by itself mean that the applicant’s family name is also [Family name 1], given the applicant customarily takes his family name from his father’s side.
The evidence suggesting the applicant’s family name is [Alias 1 family name] has some elements of reliability given it was submitted at an early stage when there would be no need to alter the applicant’s name, and the Iraqi ID card bears a photo with a strong resemblance to the applicant as a young person. However the Tribunal also notes that this was information primarily provided by [Mr A] and he may have had personal reasons to alter the family name. He is not available to give evidence about the accuracy of the information he provided. The Iraqi Identity documents are also very poor quality copies so their genuineness cannot be readily assumed.
The Tribunal considers it more likely than not that the applicant’s family name is [Alias 1 family name]. However there is too high degree of uncertainty surrounding all of the evidence submitted for the Tribunal to be confident this is so. The Tribunal considers there is insufficient clear and compelling evidence before it to be satisfied that the applicant did provide incorrect information about his family name in his onshore Protection visa application.
The applicant’s date of birth
The applicant gave his date of birth as [DOB 1] in his onshore Protection visa application, and not [DOB 9] as appears in the subclass 202 application. At the time of his arrival to Australia in October 2010 a birth year [as in DOB 1] would have made him [age] years old and therefore a minor with access to somewhat more advantageous arrangements than adults were subjected to upon arrival in Australia. It is therefore possible he was motivated to provide a later year of birth to obtain these advantages. However this is pure speculation and the Tribunal does not positively find that this was the case.
The Tribunal has some concerns about whether the applicant provided his correct year of birth in his visa application. However given the uncertainty about all the identification documents before the Tribunal there is a similar lack of clear and compelling evidence that [that year] is not the applicant’s true year of birth, and that [the year of DOB 9] is correct. The Tribunal is therefore not satisfied to the requisite level required that the applicant did provide incorrect information in his onshore Protection visa application as to his date of birth.
The applicant’s ‘other’ names
In his onshore Protection visa application the applicant left the question as to whether he had been known by other names unanswered.
The applicant has subsequently submitted evidence that he is also known as [the applicant’s full name], with variations on the spellings and on the number of names included from time to time. The applicant therefore should have included this response in the visa application form. That he didn’t makes his answer incorrect by omission.
Further, for reasons explained below, the Tribunal is satisfied that the subclass 202 visa application was made by him or on his behalf from Indonesia. Therefore, he has also been known as [Alias A variant], and variations of this name. This information should also have been included in his visa application.
Given the above the Tribunal is satisfied that the applicant did provide incorrect information in his visa application regarding his answer to the question as to whether he had been known by other names.
Previous application for a refugee or protection visa
The applicant stated in his onshore Protection visa application that he had not previously applied for refugee status or a Protection visa from the Department.
However a subclass 202 visa application from Indonesia was received by the Department in 2010. It bears the applicant’s photographs and contains many details matching, or very closely matching, the applicant’s details. These are:
-    His place of birth and places of residence in Iraq.
-    His father’s name and grandfather’s name.
-    His mother’s name.
-    His [siblings’] names.
-    His day and month of birth (but not year).
-    His core claims for needing protection.
The applicant has acknowledged that the photographs are of him. He has also not denied that many primary details match his own. He further has not denied that the photographs in the Iraqi identity documents submitted with the application strongly resemble him as a child. He has stated the reasons for this are a mixture of coincidence and ‘identity theft’. He has not been able to provide any reason why another party would want to take on his identity using his photograph. The Tribunal cannot think of a plausible reason for this to occur. Further, the level of matching details goes beyond mere coincidence.
The Tribunal therefore does not accept the applicant’s explanation. The Tribunal is satisfied that an application for a subclass 202 visa was lodged by him or on his behalf from Indonesia in 2010.
The Tribunal is therefore satisfied that the applicant did provide incorrect information in his onshore Protection visa application in regard to this particular.
Brother in Australia
The applicant stated in his onshore Protection visa application that he has no close relatives in Australia.
There is a great deal of evidence before the Tribunal that a brother of the applicant, [Mr A], has been living in Australia since before 2010.
The applicant and [his siblings] in Iraq all deny that [Mr A] is their brother.
Despite their denials the evidence that [Mr A] is the brother of the applicant is very broad and substantial. It includes the following:
-    The sponsorship of the applicant by [Mr A] for a Subclass 202 visa, identifying them both as brothers.
-    The matching names of their parents.
-    Almost matching details regarding family compositions.
-    [Mr A] named ‘[the applicant’s first name]’ as his brother in [Mr A’s] initial visa application.
-    The NSW Police information describing [Mr A] and the applicant as brothers.
-    The NSW Police record of interviews with [Mr A] and the applicant in which they both admit knowing and contact with each other (despite the applicant’s denial before the Tribunal that he had any knowledge of [Mr A]).
-    The telephone company records for the phone number at the applicant’s residential address naming [Mr A] as the account holder.
Given the breadth and quality of this evidence, together with the lack of any rational explanation as to how it would otherwise exist, the Tribunal is satisfied that the applicant and [Mr A] are brothers.
The Tribunal therefore is satisfied that the applicant provided incorrect information in his onshore Protection visa application when he answered no to the question as to whether he had any close relatives in Australia.
Conclusion on non-compliance
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in three of the ways described in the s 107 notice, namely his incorrect answers to questions 2 and 10 in Form B and to question 4 in Form C of the Form 866 visa application for his subclass 866 visa.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance.
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
The correct information
The correct information is that the applicant has been known by different names, he has a brother in Australia and he applied for a subclass 202 visa prior to his onshore Protection visa application.
This information encompasses significant and relevant details about the applicant, his identity, and his past. It should have been correctly declared in his visa application.
The Tribunal gives this factor weight in favour of exercising the discretion to cancel the applicant’s visa.
The content of the genuine document (if any)
This not a relevant factor in this matter.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document.
The decision to grant the applicant a Protection visa was primarily based upon the threat to the applicant in Iraq from Shia militia due to his [occupation 1] work at [Agency 1]. As a result of this work the applicant was found to have a well-founded fear of persecution for reason of his imputed political opinion in Iraq.
The decision to grant the visa was not based upon names the applicant had been known by; whether or not he had close relatives in Australia; or whether or not he had previously applied for a Protection visa or refugee status.
If the correct information had been included in the applicant’s onshore Protection visa application then obviously cross-referencing with his subclass 202 application and his brother’s details would have raised concerns about the accuracy of some of the details of the applicant’s claim for protection. However the visa grant decision itself was not partly or wholly based upon the specific incorrect information.
The Tribunal therefore gives this factor weight against the exercise of the discretion to cancel the applicant’s visa.
The circumstances in which the non-compliance occurred.
At the time the non-compliance occurred the applicant was either [age] or [age] years old and had recently arrived in Australia by boat from Indonesia. The applicant was being held in immigration detention on Christmas Island initially, and later in a Melbourne detention facility.
The Tribunal accepts that the situation the applicant found himself in upon arrival would have been unfamiliar, uncertain and frightening, especially for a minor but even so for a young man. The Tribunal accepts that the applicant’s predominant goal would be to obtain a visa so he could be released from detention and not be returned to Iraq.

When applying for his on-shore visa the applicant would have been aware that his previous subclass 202 visa application had been refused by the Department. The Tribunal accepts that the applicant would likely be receiving advice from other asylum-seekers, and possibly from his brother, as to what to say or not say in his visa application to optimise the chance he would be granted the visa. The Tribunal accepts such advice may be ill-informed.
Whether he was ill-advised or even acting entirely independently of external advice it is plausible he would decide it better to conceal the existence of a prior failed visa application. To conceal this he would also have to alter his identity and not declare the presence of his brother in Australia, to avoid data record checking.
The applicant’s decision to provide the incorrect information is not justifiable because of the circumstances the applicant was in at the time. The importance of providing correct information in his application, and the consequences for failing to do so, were repeatedly highlighted and explained to him throughout the course of his application. He also had the assistance of a qualified migration agent during the process whose advice on these matters he could have sought and relied upon.
However it is understandable that a young Iraqi arriving in Australia after a long and dangerous journey, leaving his parents and country for the first time, alone and in detention in Australia, and in fear of return, may rely upon bad advice to conceal information he believed may expose him to risk of return.
The Tribunal therefore gives this factor, in view of the applicant’s young age at the time, some weight against exercising the discretion to cancel the applicant’s visa.
The time that has elapsed since the non-compliance, and the present circumstances of the visa holder.
Thirteen years has passed since the non-compliance by the applicant. The Tribunal considers this a significant period of time in which the applicant has greatly altered his life.
The applicant has been in Australia for the thirteen years without departing. On occasion he has studied and worked in Australia. The Tribunal accepts the applicant would like the opportunity to continue to study and work in Australia.
He has friends in Australia, as well as his brother.
He recently married and he and his wife plan to have a child soon. The Tribunal accepts that the marriage is genuine.
The Tribunal therefore gives these factors weight against exercising the discretion to cancel the applicant’s visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
At no time has the applicant made any attempt to correct the incorrect information he provided in his visa application. This is despite there being numerous opportunities for him to do so.
The applicant’s failure to correct the incorrect information, and his efforts to maintain it is true, are highly concerning.
The Tribunal therefore gives this factor weight in favour of exercising the discretion to cancel the applicant’s visa.
Any other instances of non-compliance by the visa holder known to the Minister.
According to the Department’s decision record, submitted to the Tribunal by the applicant, the applicant maintained the incorrect information in his application for Australian citizenship, lodged in June 2015.
The Tribunal gives this factor weight in favour of exercising the discretion to cancel the applicant’s visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal that the applicant has breached the law in Australia since his non-compliance.
The Tribunal therefore gives this factor weight against exercising the discretion to cancel the applicant’s visa.
Any contribution made by the holder to the community.
The applicant has provided evidence that he has donated blood to the Red Cross in NSW and performed some volunteer work for community organisations here.
The applicant’s contributions to the community are not extensive however the Tribunal gives this factor some weight against exercising the discretion to cancel the applicant’s visa.
Other Considerations
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be consequential cancellations under s 140.
There is no indication that there would be any consequential cancellations under s 140 of the Act. The Tribunal views this factor neutrally.
If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.
The applicant has provided evidence that he has a close bond with [his nieces and nephews], who are aged [ages]. The Tribunal accepts this.

100. The Tribunal accepts the [older] children would be sad and perhaps distressed if the applicant had to leave Australia, and that it may unsettle them. However the applicant has come into the children’s lives relatively recently given he and his wife first met in the beginning of last year and they married in May. He is their uncle by marriage. There is no evidence or indication before the Tribunal that the level of distress and disruption to the children would be substantial.
101. Nevertheless, the Tribunal accepts that is it not in the children’s best interests to experience some distress or disruption in their family life.
102. The Tribunal therefore gives this factor a little weight against exercising the discretion to cancel the applicant’s visa.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
Non-refoulement obligations
103. The applicant obtained protection in Australia on the basis he was [an occupation 1] at [Agency 1] as a child in Iraq in 2010 and was threatened by Shia militia.
104. The Tribunal notes that in his subclass 202 application he claimed the [agency] was in Baghdad, whereas in his onshore Protection visa application he stated the [agency] was in Babylon. Nevertheless, given the accuracy of the written summary of his claims was largely untested during the former assessments of his visa applications, together with the passage of time, the Tribunal gives the applicant the benefit of the doubt that he did work as [an occupation 1] at [an Agency 1] when he was about [age] years old, in either Baghdad or Babylon, and was threatened by Shia militia as a consequence in 2010.
105. The applicant’s parents and [siblings] remained in Iraq after the applicant’s departure. His mother has since passed away but his father and sisters remain living in Iraq. There is no indication that anyone in the applicant’s family experienced any harm or threat after the applicant’s departure.
106. The applicant is now at least [age] years old. The Tribunal does not consider that the Shia militias would remember the applicant or have any interest in the applicant if he returned now, simply because he [worked at] [Agency 1] 13 years ago, when a child. Shias reportedly exercise the dominant control in government and most areas of Iraq. The US has also withdrawn its military forces from the country. In the current circumstances there is no reason for the applicant to be viewed as a threat, or adversely, by militia groups in Iraq.
107. Even if there was some risk to the applicant in the locale of the former [Agency 1] there is no reason the applicant could not move to another part of Iraq, either Baghdad or Babylon, where he has family support.
108. The Tribunal is not satisfied that there is a real chance of the applicant facing persecution in Iraq as a result of his former [occupation 1] work at [Agency 1].
109. There is no indication that the applicant faces a real chance of serious harm for any other refugee definition related reason, or any significant harm intentionally directed at him, in Iraq. The Tribunal is therefore not satisfied that non-refoulement obligations would be breached by the applicant’s return to Iraq.
Family Unity obligations
110. The applicant is now married. His wife is an Australian citizen and has lived all her life in Australia. The Tribunal acknowledges that the applicant’s wife and all her family have been settled in Australia for a long time. It would therefore be very difficult for the applicant’s wife to relocate to another country such as Iraq. The Tribunal considers it possible that for practical and security reasons the applicant’s wife would not follow the applicant to Iraq if he had to leave Australia.
111. In such circumstances the applicant and his wife would be separated.
112. The Tribunal therefore gives this factor weight against exercising the discretion to cancel the applicant’s visa.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, 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.
113. If the applicant’s visa remains cancelled he would be unlawful in Australia if he cannot secure another visa. Section197C(3) of the Act provides that a person will not be liable for removal (under s198) where a ‘protection finding’ has been made with respect to the person. Given there has been a protection finding in relation to the applicant he therefore cannot be forcibly removed from Australia. If he remains in Australia unlawfully he will be liable to detention.
114. The applicant arrived in Australia in 2010 at Christmas Island after it had been designated as an excised offshore place. The applicant is therefore an ‘unauthorised maritime arrival’ and prevented by s 46A(1) of the Act from making another valid visa application, without the Minister’s favourable intervention under s 46A(2).
115. In such circumstances the applicant would be unlawfully in Australia and liable to detention.
116. The applicant’s time in detention would potentially be lengthy given his anticipated unwillingness to return to Iraq and the insecure situation there. Even if he can successfully make a request for the Minister’s favourable intervention this can also be a very lengthy process.
117. The Tribunal therefore gives this factor weight against exercising the discretion to cancel 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).
118. The applicant has spent many years in Australia and has established a life here with his wife. The Tribunal accepts it would cause the applicant and his wife significant emotional hardship and be highly disruptive to their lives if he had to leave Australia and return to Iraq.
119. According to the available country information there is still a significant level of insecurity, violence and political and sectarian volatility in Iraq. The Tribunal therefore acknowledges that the applicant may find himself in dangerous or unstable environments within Iraq if he did return there.
120. The applicant has [specified siblings] and an elderly father in Iraq however given the widespread deprivation his ability to establish himself in Iraq, to find independent accommodation and work, would not be easy or simple. It would likely take substantial time with no certainty of success.
121. If the applicant’s wife did choose to go to Iraq with the applicant the Tribunal notes that the situation is even more dangerous and restrictive for women there.
122. In all the circumstances the Tribunal considers it would cause the applicant and his wife significant hardship if the applicant’s visa remains cancelled and he had to return to Iraq.
123. The Tribunal therefore gives this factor substantial weight against exercising the discretion to cancel the applicant’s visa.
Conclusion
124. The Tribunal considers that there are weighty factors in favour of exercising the discretion to cancel the applicant’s visa. These include the seriousness of the breach and his subsequent behaviour in continuing to assert the incorrect information. However balanced against this is the likelihood the applicant’s Protection visa would have been granted even if the correct information had been provided; his youth at the time of the initial non-compliance; the length of time which has passed; that he has been otherwise law abiding; and the serious hardship cancelling his visa will cause to both himself and his wife, as well as some prospect of a lengthy detention in Australia.
125. The Tribunal considers that the factors which favour not exercising the discretion to cancel the applicant’s visa substantially outweigh the factors which are unfavourable to the applicant.. The Tribunal therefore concludes that the applicant’s visa should not be cancelled.
126. Based upon the above, 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. Having regard to all the relevant circumstances the Tribunal concludes that the visa should not be cancelled.
DECISION
127. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) 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.