Page 1 Assessment 1: (Review of Department Decision) DECISION RECORD AND STATEMENT OF REASONS BACKGROUND 1. Fadhil Hamdani (‘the non-citizen’) is an Australian permanent resident born in Baghdad in 1980. He first arrived in Australia in June 2011 as the holder of a sponsored Family Visitor Visa. 2. After his arrival in Australia in June 2011, the non-citizen lodged a Protection Visa application in July 2011. He was granted that Visa in September 2012 on the basis that he was able to demonstrate to the Minister a well-founded fear of persecution on the basis of his political opinions, membership of a particular social group and ethnicity. In support of his application, the non-citizen provided a statement setting out the reasons why he was seeking protection. 3. In summary, the non-citizen claimed that he was working as a Surveillance Officer for Administration Iraqi Services (AIS), a company providing security services to the United States Military in Baghdad under a contract with the Iraqi government. The noncitizen managed a number of projects for the AIS company, which were sponsored by the US Army. 4. The non-citizen claimed that he had received a letter from a group associated with al Qaeda in 2011 which threatened to kill him, burn his house down and kill his family unless he stopped working for the US Army. He further claimed that, a few days later, the house that he rented near his work was burned down and he was required to sell his home to pay compensation to his landlord. A few weeks later his company car was blown up and it was after this that he decided to leave Iraq as soon as possible. He complained to police, but they took no action. 5. A delegate of the Minister considered these claims and found them to be ‘plausible and credible’. Relevantly, the delegate found as follows: Reasons and Assessment In assessing whether the non-citizen has a well-founded fear of persecution if he returned to Iraq, I have considered independent country information, the testimony of the non-citizen at interview and the claims made in his application for a Protection Visa. The non-citizen was interviewed in relation to his Protection Visa application in January 2012 with the assistance of an accredited interpreter in Arabic. The noncitizen’s testimony concerning his circumstances during the Ba’ath regime in Iraq was coherent, lacked any obvious exaggeration and was consistent with his written submission. Page 2 He stated that the dangers that he faces had already occurred and the authorities are unable to protect him from extremist elements and groups. The non-citizen has submitted the relevant police reports to which he referred in his statement, photos of the applicant at work as a Surveillance Officer with American Military soldiers, inspecting work being carried out and photos of a burned-out building. While I cannot be sure that the building was his previous abode, the police reports, the letter of employment from the AIS company and the photos with the American soldiers appear to be credible. Summary In light of the independent country information regarding widespread and continuing sectarian and criminal violence and human right abuses in Iraq, and the Iraqi government’s inability to provide a reasonable level of state protection, I am satisfied that he has a real chance of being subject to harm amounting to persecution for a reason relating to the Refugees’ Convention in the foreseeable future if he returns to Iraq. Accordingly, I am satisfied that the applicant has a well-founded fear of persecution in Iraq for the Convention reason of his political opinion. 6. While in Australia the non-citizen completed a number of courses and worked in hotel management for a period. He has been working as an Assistant Hotel Manager for the Ritz Company since October 2016. 7. The non-citizen has travelled overseas twice since being granted his Protection Visa. On both occasions he travelled to Iraq, where he resided for just over two months, namely from December 2013 to February 2014, and for 80 days from December 2015 to February 2016. During this second trip, the non-citizen married his wife in Iraq. She resides in Iraq and the non-citizen has applied for a Subclass 309 Partner Visa in March 2016. The Visa has not been granted. NOTICE OF INTENTION TO CONSIDER CANCELLATION 8. On 2nd February 2018, a delegate issued a Notice of Intention to Consider Cancellation (‘NOICC’) under s 107 of the Migration Act 1958 (Cth) on the grounds that the noncitizen had provided incorrect answers in his Protection application. The basis for the proposed cancellation was said to be that the non-citizen had voluntarily returned to Iraq without issue, which demonstrated that his life was not at risk and he did not appear to hold the claimed adverse profile. 9. The NOICC issued on 2nd February 2018 referred to answers given by the non-citizen in his Visa application, which sought information about the non-citizen’s protection claims. The questions were as follows: 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 if you go back? Page 3 Question 46: Do you think the authorities of that country can and will protect you if you go back? If not, why not? 10. The NOICC noted that the non-citizen answered these questions (see attachments) and included the statement provided by the non-citizen in answer to these questions in its entirety as follows: I was a Surveillance Officer working in a private company called ‘Administration Iraqi Services’ (‘the company’) working in the field of Security Administration. The company carries out security work under the direction of the US Military. In 2011,We found a document on the door of the house where I lived, which was located in a neighbourhood (which I rented because it was close to my workplace) by a group calling itself Al-Rashidin Army, one of the organisations of al Qaeda. The document contained a threat to kill me, burn my house and kill my family if I did not quit my work. The document made plain that I was cooperative with the US Army and a traitor to my country. I did not take the threat outlined in the document seriously and I continued my work as usual. Later in 2011, my neighbour called me (I was, at that time, at my family’s house). During the telephone conversation, my neighbour informed me that my house was burning. My neighbour indicated that he had called the firefighters’ station and the police. Subsequently, shortly after the telephone call, I went to my house. When I arrived at my place, the fire brigade had extinguished the fire and the house had burned down completely. On the day after the fire, I went to the police station and made a complaint against the unknown terrorist group and reported the threat that I had found a few days before the fire. I also informed the police that the burning of my house was intentional, as confirmed by the fire investigators. Not long after attending the police station, I received a telephone call from the owner of the house. The owner asked me to repair the damage done to the house. When I told the owner the cause of the fire, he decided to repair the damage to the property (on condition that I pay the costs of the damage). In order to meet the repair costs, I sold the apartment that I owned elsewhere in Iraq to pay the cost of the damage caused by the fire. Afterwards, I started to move from one place to another. I continued my work with the company, given my professional commitments to the business. That said, I was fearful of being the subject of further personal harm by the criminal terrorist organisation. In approximately May 2011, I was at work when I heard an explosion (which caused the company’s windows to break). After my business colleagues and I went out to investigate, we found that my car had been blown up and was completely burned. Subsequently, the army and police forces arrived to investigate the incident. As a result, I was taken to the police station where the police insulted me. Later that day, the police informed me that explosive adhesives were found in the car, which must have meant that someone wished me to be dead. Page 4 After my car had been blown up, I decided I could not continue to work for the company. I was fearful for my life. I was exposed to several threats during my work for the company. Most of the threats were by way of telephone calls. On one occasion, the criminals placed an envelope (containing a bullet) at the door of my family house with my name on it. I ignored all these threats and I continued my work. I attempted to take some precautions, mainly by changing my daily routine. For example, I avoided going to my family’s house. Instead, I started to sleep at either the company building or facilities associated with the business. It became clear to me that I could not live a normal life, especially after losing everything I owned. I believe my life is in serious danger if I return to Iraq to live. I fear that the terrorists will kill me. 11. The NOICC referred to the fact that the non-citizen had returned to Iraq on two occasions for over two months on each occasion and gave the following particulars of the non-compliance with s 101(b) of the Migration Act 1958 (Cth): Given these movements, it appears that you have provided incorrect information with your application for a class XA Subclass 866 Protection Visa. You claimed in your application that you could not return to Iraq as you held an adverse profile that attracted serious harm from terrorist groups and that they would kill you due to your perceived co-operation with the US Military and that the authorities would not be able to protect you from extremist elements and groups. You claimed that you are known to your alleged persecutors. I note that you have voluntarily travelled back to Iraq on two occasions (i.e. returned in 2013/14 and 2015/16) and, on each occasion, you have spent over two months there without apparent issue. This appears to demonstrate that your life is not at risk from extremist groups as you claim, and it appears that you did not hold the claimed adverse profile as stated in your Protection Visa application. Your Protection Visa was granted on the basis that you satisfied the Minister that you engaged Australia’s protection obligations under the Refugees’ Convention. You have claimed that you could not return to Iraq as you feared harm from extremist groups and the authorities were not able to provide protection for you. These claims were fundamental to the determination that you are a person to whom Australia had protection obligations. As the incorrect information/statement you provided was material to this determination, it appears that you did not hold the adverse profile as you had claimed and you may not have engaged Australia’s protection obligations. I therefore consider that you have not complied with s 101(b) of the Act because you provided incorrect information in association with your application for a class XA Subclass 866 Protection Visa, specifically that you feared harm from extremist groups in Iraq and could not return. RESPONSE FROM THE NON-CITIZEN 12. The non-citizen was given the opportunity to respond to the NOICC, which he did. In summary, the non-citizen responded that he had returned to Iraq for specific reasons and he had kept a low profile while he was there. On the first occasion (i.e. in late 2013) he returned to visit his mother, who was in hospital with a stroke. He stayed in Page 5 his brother’s apartment and looked after his mother after she left hospital. On the second occasion (i.e. late 2015 to early 2016), he returned to marry his wife who he had met on the previous trip. They had a low-profile wedding but he had to stay for an extended period to obtain the necessary certificates, including a passport. 13. In his response to the NOICC, the non-citizen provided a number of documents, including the following: • A copy of an alleged threatening letter from ‘The Public Relations Bureau of Al-Rashidin Army’, dated 2011, along with its English translation. The threat identifies the non-citizen as one who worked with the ‘forces of occupation’ and warned him to quit his job otherwise they would kill him and his family and burn down his house • An English translation of an Investigation Report from an Iraqi police station dated 2011 of a complaint by the non-citizen that an unidentified terrorist group threatened him in 2011 through a written threat and later in 2011 the same group set his house on fire • An English translation of a Report from an Iraqi police station dated 2011 of the non-citizen’s complaint in 2011 that an unidentified terrorist group had attached an explosive device to his vehicle and detonated it. The report also notes that the non-citizen testified that he had been exposed to threats by the group. The Report states that an inspection of the explosion site was carried out and a Civil Defence Report/Explosion Unit was issued accordingly • A copy of a letter from the company where the non-citizen worked, stating that the non-citizen began work with the company in March 2007 and had worked there continuously since that time. The letter states that the company agreed to give the non-citizen a paid vacation from June 2011 to September 2011 and to return to work at the end of the vacation. The letter is undated • Documents relating to threats being made against the non-citizen’s brother in 2016 • Psychologist reports dated May 2016 and August 2016 about the noncitizen’s mental state • Translation of an extract of a medical report from Afghanistan dated October 2013, claiming to be a report of the non-citizen’s mother’s admission to hospital in October 2013 • Photographs of the non-citizen and his wife at their wedding ceremony • Photographs of the non-citizen with Military personnel said to be taken at various locations in Baghdad when the non-citizen worked with the company • Photographs of what the non-citizen claims was his bombed vehicle and burned-down home. Page 6 FINDINGS Non-Compliance with Section 101(b) of the Migration Act 1958 (Cth) 14. I have considered your response and found that you had provided incorrect information for the following reasons. 15. Firstly, you returned to Iraq (the country from which you claimed protection) without apparent harm on two occasions. On each occasion you spent over two months in Iraq. I consider that this travel is inconsistent with the information that you put forth in your Protection application, when you claimed that you could not return to Iraq for fear of being harmed by terrorist groups. 16. Secondly, you have not provided any information to indicate that your profile has changed and that you are no longer of interest to the terrorist groups from whom you claim to fear persecution. 17. In light of the preceding findings, I therefore consider that you have not complied with s 101(b) of the Migration Act 1958 (Cth), as you provided incorrect information with your application for a Class XA Subclass 866 Protection Visa. Specifically, I consider that you provided incorrect information to the following questions: • In response to question 43 you claimed that you could not return to Iraq for fear that you may be killed. This information is incorrect as you have since returned to Iraq on two occasions without apparent harm • In response to question 44 you claimed that you would be harmed by terrorist groups including the Al-Rashidin Army if you returned to Iraq. This information is incorrect as you have since returned to Iraq on two occasions without apparent harm • In response to question 45 you claimed that you would be harmed by the terrorist group as you held a profile as a US sympathiser. This information is incorrect as you were not of interest to these terrorist groups, as was evidenced by you having returned to Iraq on two occasions without apparent harm • In response to question 46 you claimed that the authorities in Iraq could not protect you. This information is incorrect as you were not of interest to terrorist groups, as was evidenced by you having returned to Iraq on two occasions. 18. As you have not complied with s 101(b) of the Migration Act 1958 (Cth), your Visa is liable for cancellation. Considering Whether Visa Should Be Cancelled 19. Having determined that you have not complied with s 101(b) of the Migration Act 1958 (Cth), I must consider whether your Visa should be cancelled. 20. I have noted an International Treaties Obligation Assessment (ITOA) report dated January 2018 about whether Australia had protection obligations to you. I am not satisfied that Australia has protection obligations to you. In making this assessment, I have considered the original claims made by you and concluded that those claims are not credible. Page 7 21. The circumstances outlined above must be weighed against other considerations, such as the seriousness of the non-compliance, maintaining the integrity of Australia’s migration programme, allowing the non-citizen to retain a significant benefit (given the incorrect information provided) and the need to deter others from similar conduct. 22. I find that the non-compliance was serious and that you obtained a significant benefit from your non-compliance. I acknowledge that you have studied and obtained employment in Australia, however, I find that the reasons for cancellation outweigh the reasons not to cancel in this case. 23. I concluded there was no practical purpose to be served by interviewing you before making my decision, as you provided a detailed written response to the NOICC. 24. I am satisfied that you have failed to show cause why your Visa should not be cancelled. Steve Delegate 23rd March 2018 Assessment Questions In light of the preceding, what advice would you provide to the non-citizen with respect to the following questions: (1) Was the delegate entitled to issue the NOICC under s 107 of the Migration Act 1958 (Cth)? (5 marks) (2) Is the NOICC valid? (10 marks) (3) Was the delegate correct to find that the non-citizen had contravened s 101(b) of the Migration Act 1958 (Cth)? (10 marks) (4) Independent of the merits of the case, did the delegate correctly apply the statutory power in s 109 of the Migration Act 1958 (Cth)? (5 marks) Page 8 Rules of Assessment 1: (Review of Department Decision) 1. This Assessment is worth 30% of the assessable component for the unit 2. This Assessment has a word count of 2,000 words (exclusive of footnotes) 3. Students are required to employ the Australian Guide to Legal Citation referencing system in completing this Assessment 4. Your response to this Assessment is due for submission by 6th April 2018 at 9.00pm 5. Students are required to submit their response to this Assessment through the Turnitin link on the vUWS website for the unit (entitled ‘Critical Review Submission Link’). No other form of submission will be accepted without written approval by the Unit Coordinator 6. Students must complete this Assessment on their own. Students are not permitted to discuss their answers (or proposed answers) to this Assessment with anyone.