1617889 (Refugee)

[2017] AATA 213

1617889 (Refugee) [2017] AATA 213 (2 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617889

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Stuart Webb

DATE:2 February 2017

PLACE OF DECISION:  Melbourne:

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 02 February 2017 at 1:51pm

CATCHWORDS

Refugee – Cancellation – Protection visa – Iraq – Particular social group – Government employees – Invalid s 107 – Incorrect answers in protection visa application – Condition 8559 – Applicant returned to Iraq – Arrangements for family to migrate – Grounds existing at time of visa grant

LEGISLATION

Migration Act 1958, ss 97 - 101(b), 107,109(1)

CASES

Zhao v MIMA [2000] FCA1235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the applicant provided incorrect information pertaining to his protection claims. The delegate considered that in the circumstances the applicant’s visa should be cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 2 February 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by his registered migration agent. The applicant provided a copy of the delegate’s decision to the Tribunal

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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.

   Relevant Background Information.

   Relevant Information pursuant to s.107 Notice

7. The s.107 Notice advised that a delegate of the Minister considered that the applicant may not have complied with s.101(b) of the Migration Act. Section 101 states:

   Section 101: Visa applications to be correct

   s101. 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.

8. The s.107 Notice sent [in] January 2016 provided the following information.

   Based on the information before me you were granted a subclass 866 (Protection) visa [in] March 2013. You provided the following information to the Department on the application form 866C lodged [in] September 2011, which led to the grant of a subclass 866 (Protection) visa.

   At Question 41 where it states "I am seeking protection in Australia so that I do not have to go back to (give name of country or countries)" you answered "IRAQ"

   At Question 43 where it states "What do you fear may happen to you if you go back to that country?" You answered "I fear I will be abducted, tortured and killed."

   At Question 44 where it states "Who do you think may harm/mistreat you if you go back?" you answered "Extremist Shia militia associated with Moqtada al Sadr, Sunni insurgents"

   At Question 45 where it states "Why do you think this will happen to you if you go back?" you answered: "Because the Shia fundamentalists object to people who are employed by and support the government. They oppose our supposed political views and think that we are Infidels who support foreigners. Moqtada has many parliamentary allies who help the government of Maliki stay in power and he has been trying to get control of the Ministries that control the police and the Army. He has had some success but those Ministries are controlled by the US allies and Moqtada does not have a lot of control in [Agency 1]. One of his methods to get control has been to send his followers to threaten [Agency 1] employees to support them. They have already kidnapped my [child] and have threatened my wife that I will be harmed if I return to Iraq.

   There has been increasing violence this year and Moqtada has said he will call on his followers to resume their mass violence if the US Forces don't leave Iraq at the end of this year. I am sure they won't leave and the fundamentalists will start targeting government employees on a large scale.

   There are other groups who attack government employees and especially people connected with [Agency 1] because it is seen as the Ministry [with specified responsibilities].

   Sunni insurgents also target Shias because they don't regard us as true Muslims and they perceive us to be beneficiaries of the liberation of Iraq by the coalition forces."

   At Question 46 where it states "Do you think the authorities of that country can and will protect you if you go back? If not, why not? You answered "No. The authorities are self-interested and cannot protect themselves, let alone ordinary citizens. The security forces are infiltrated by militia who are not loyal to the country but to their own leaders. They are motivated by self-interest and can attack their perceived enemies with impunity. They can use their position to target anyone they perceive to be their opponents. Basra continues to experience attacks that are politically and religiously motivated and the situation is becoming more unstable."

   On the basis of this information plus meeting all other relevant criteria you were granted a subclass 866 (Protection) visa [in] March 2013.

   Departmental movement records indicate that you departed Australia on [a date in] March 2014. Information received by the Department states that upon your arrival into [an Australian] Airport on [a date in] June 2014 you admitted to travelling to Iraq during this trip.

   On [that date in] June 2014 you also provided an E-ticket which shows that you departed Basra International Airport, located in Iraq, on [an earlier date in] June 2014.

   This information clearly conflicts with the claims in your protection visa application. If this is the case, you have provided incorrect answers to the questions as stated above, and your visa can be cancelled under s109 of the Migration Act 1958 because of non-compliance with s101(1) of the Act which states:

   s101. A non-citizen must fill in his or her application form in such a way that:

   (b) no incorrect answers are given.

   The powers to issue this Notice, make a decision about whether there was non-compliance in the way described in this Notice and make a decision about whether to cancel your visa, exist whether the non-compliance was deliberate or inadvertent.

   What you can do

   …[1]

   [1] DIBP Folio 14-15

   Did the notice comply with the requirements in s.107? 

9. There is a question as to whether the notice issued by the Minister’s delegate complied with s.107.

10. The delegate identified a series of answers provided by the applicant in his Form 866 lodged [in] September 2011, as detailed above. The delegate identified information provided in the applicant’s responses to questions 41, 43, 44, 45, and 46 of Form 866 Part C. The delegate then noted that the applicant departed Australia on [a date in] March 2014, and that information received by the Department stated that on his return to Australia on [a date in] June 2014 the applicant admitted travelling to Iraq and that an E-ticket presented by the applicant showed the applicant had departed Basra International Airport, located in Iraq, on [a date in] June 2014.

11. As is detailed above, the delegate then states that ‘[t]his information clearly conflicts with the claims in your protection visa application. If this is the case, you have provided incorrect answers to the questions as stated above’.

12. The s.107 notice does not set out particulars as to why the delegate considered the answers to questions 41, 42, 43, 44, 45, 46 of the applicant’s protection visa application Form 866 were incorrect. It does not specify what the ‘clearly conflicting’ information is with respect to the information provided by the applicant in his visa application. From the information in the Notice it may be surmised that the delegate considers the information that the applicant feared harm from extremist Shia militia associated with Moqtada al Sadr, and from Sunni insurgents, to be incorrect based on the applicant’s subsequent return to Iraq, however this has not been stated in the in the Notice.  The delegate in the Notice simply states that the information about the return to Iraq ‘clearly conflicts’ with the claims in the protection visa. This does not set out what the delegate considers to be an incorrect answer.

13. S.107(1)(a) of the Migration Act states that the delegate is required to provide to the visa holder a notice ‘giving particulars of the possible non-compliance’. The Court has stated that the s.107 notice must be sufficient to fairly inform the applicant of the basis upon which cancellation is being considered.[2] This is a particular responsibility when it is a protection visa that is in question and that the claims as provided have previously been found to give rise to an objectively well-founded fear of harm. The delegate has not particularised the incorrect information in this instance.

    [2] Zhao v MIMA [2000] FCA1235

14. For these reasons, the Tribunal finds that the notice was not a valid notice for the purposes of s.107. As a valid s.107 notice is a precondition to the exercise of the power under s.109, the power to cancel the visa did not arise. It follows that the delegate’s decision to cancel the visa must be set aside.

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

15. Whilst not necessary given that the Tribunal has found the s.107 notice to be deficient, the Tribunal has made a separate and independent finding in relation to whether there was non-compliance with the s.107 notice in the manner described in the notice, and if so, whether the visa should be cancelled.

    Response to the s.107 Notice

16. In response to this Notice the applicant’s agent provided a submission. It was stated that the travel back to the applicant’s country of reference for the purpose of the grant of the Protection visa did not constitute a non-compliance with section 101 of the Migration Act. It was also submitted that there compelling and compassionate circumstances as to why the applicant returned to Iraq. The submission discussed issues that the applicant had in having passports issued to family members, including stating that there was a need for the applicant, as the children’s father, was required to be present. The applicant had to return to sell the family home and move the applicant’s family to a safer location. It was submitted that the applicant was unable to communicate in English and did not understand the law. Further information about the applicant’s activities in Iraq was provided. It was stated that the applicant did not make a false claim.[3] The applicant provided documents, including a sale agreement for his home, executed while in Iraq, passports issued while he was in Iraq, and a letter from [an Iraqi government department].[4]

    [3] DIBP Folios 21-23

    [4] DIBP Folios 35-39

17. The applicant also engaged with the International Treaties Obligations Assessment (ITOA) conducted by the Department, with a letter sent in June 2016. This included being asked questions regarding the association of Shia militia with Iraqi Security Forces, that there was no information before that delegate that Shia militia are currently targeted members or former members of the ISF or their families in Basra. It was stated that by returning to Iraq he may not fear harm there and that his circumstances in Iraq were not as he had portrayed. It was also stated that he may have re-availed himself of the protection of Iraqi authorities[5].

    [5] DIBP File [number] Folios 135-136

18. The applicant responded by providing a summation of country information in Iraq and responding to the questions as put to him. He stated that he did not avail himself of the protection of the Iraqi authorities when he returned to Iraq.

    S.109 Cancellation decision

19. The delegate outlined the information that had been provided by the applicant in his Protection visa application, including his Form 866 lodged [in] September 2011. The delegate outlined the information that the applicant had provided in his application. The delegate then considered that the applicant’s return to Iraq from March 2014 to June 2014 conflicted with the claims in the applicant’s protection visa application.

20. The delegate determined that the applicant had not complied with s101(b) of the Migration Act 1958. The delegate provided reasons that:

    The visa holder stated he needed to be present in Iraq to obtain his children's passports, move his family to a safer location, and arrange money to be able to lodge a partner visa for his wife. The visa holder stayed in Iraq for a period of 3 months. Had he been subject to the level of harm as stated on the protection visa application, if he were to return to Iraq, the visa holder would have avoided travel to Iraq, or limit his stay there as much as possible. The visa holder has not provided reasons as to why he needed to be present in Iraq for a period of 3 months. If the visa holder was subject to the level of harm as stated in the protection visa application, he could have attempted to finalise these tasks within a shorter period of time, or provide evidence that he attempted to do this. Based on the length of stay in his country of claimed persecution, I find that the visa holder does not hold the claimed adverse profile as stated in his protection visa application, and has provided incorrect responses on the protection visa application as stated above.

    The visa holder stated that during his stay in Iraq he hid his identity, changed his appearance and avoided going out unnecessarily. However the visa holder travelled to Iraq for a period of 3 months and cited a number of reasons for the travel, as stated above. I find that by undertaking all these activities it would have been difficult for the visa holder to be discrete, and it would have required the visa holder and his family to travel around Iraq on separate occasions. Being able to do these activities while in Iraq, and staying there for a period of 3 months suggests that the visa holder did not hold the claimed adverse profile as stated in his protection visa application, and is not subject to the level of harm as stated on his protection visa application. Based on this I find the visa holder has provided incorrect responses on the protection visa application in relation to his risk profile with Extremist Shia militia and Sunni insurgents.

    The visa holder stated that he needed to be present in Iraq to arrange his children's passport, and that the Iraqi passport office required his physical presence in order to obtain the passport. This claim is not supported by the Passport Affairs Directorate website of the Iraqi Ministry of Interior, which states that a guardian who is residing outside the Republic of Iraq can provide an approval for the issuance of passports to minor children. I therefore do not accept that the visa holder needed to be present in Iraq for the issuance of his children's passport. Had the visa holder held the claimed adverse profile and had a genuine fear of persecution in Iraq on the grounds of his alleged political opinion, I find that he would not have voluntarily returned to Iraq for a lengthy period of time.

21. The delegate went on to identify the answers in the Form 866 that were incorrect on the basis that the applicant voluntarily returned to Iraq for a three month period.

22. The delegate considered the relevant provisions whether the visa should be cancelled under Reg 2.41.

23. With respect to 2.41(a), the delegate determined that the applicant did not have an adverse profile in Iraq as claimed. It was stated that the applicant did not and does not have a fear of persecution in Iraq as claimed. He returned to Iraq for three months and ‘has not experienced any persecution on account of his alleged adverse political profile’ which ‘indicates that he did not hold an adverse political profile as submitted’.

24. With respect to 2.41(b), the delegate determined that this was not applicable.

25. With respect to 2.41(c), the delegate determined that had the correct information been aware of the correct information it would have affected the decision to grant his visa.

26. With respect to 2.41(d), the delegate determined that the applicant deliberately provided the incorrect information to enable him to remain in Australia.

27. With respect to 2.41(e), the delegate considered that the applicant had resided in Australia for 5 years. He was sponsoring his wife and [number] children who presently live in Iraq on a partner visa application. He has some connection to Australia, but also to his family in Iraq.

28. With respect to 2.41(f), the delegate determined that the applicant has responded to the NOICC.

29. With respect to 2.41(g), the delegate determined that there were no other instances of non-compliance.

30. With respect to 2.41(h), the delegate determined that the non-compliance occurred when the applicant lodged his protection visa application, and 5 years had elapsed.

31. With respect to 2.41(j), the delegate determined that there were no known breaches of the law since the non-compliance.

32. With respect to 2.41(k), the delegate noted that there was no information about his contribution to the community.

33. With respect to the other matters, the delegate noted that DIBP Protection section  undertook an International Treaties Obligations Assessment (ITOA) regarding the applicant, whether Australia had any obligations under any international treaty to the applicant. The decision referenced ITOA information about the current situation in Iraq, in particular in Basra. The delegate placed little weight on this in the applicant’s favour.

34. The delegate proceeded to cancel the applicant’s visa.

    Evidence before the Tribunal

35. The applicant provided a submission to the Tribunal. It summarised the applicant’s prior circumstances. It was submitted that there were reasons why the applicant had to return to Pakistan; to obtain passports for [number] children [ages specified]; to move his family to a safer location, including selling his home; to make financial arrangements to pay for the partner visa; and his reasons for persecution on return to Iraq are still apparent. The submission provided country information on the situation in Iraq. The submission provided supportive documentary materials, including a decision of the AAT differently constituted that set aside a cancellation of a protection visa in similar circumstances.

36. The applicant provided evidence regarding his return to Iraq on this one occasion, why he believed he had to return, what he did when he was there and his overall experience of being back in Iraq. His agent provided a timeline of activities while resident in Iraq[6], including his activities to gain the passports, relocate his family while selling the family home and arrange finances to assist in bringing his family to Australia.

    [6] AAT Folio 51-52

1. The Tribunal discussed this information. The Tribunal noted that it did not appear that the applicant had to be in Iraq to facilitate the issuing of the passport of selling of the property. The Tribunal noted that information from the Passports Affairs Directorate of Iraq detailed that the applicant did not have to be present in Iraq as a guardian to assist with the issuance of the passport.

   5 - to Iraqis , whether male or female who was ( 18) eighteen years to obtain a passport without the need for a guardian's permission .

   6 - may not issue a passport for those under the age of (18) eighteen him only with the consent of the guardian or guardian.

   7 - dependent Iraqi nationality certificate for the father to his sons or daughters of minors who were under the age of ten (10) years for those who did not get them a certificate of Iraqi nationality .

   9 - the Guardian , who is outside the Republic of Iraq to send approve the issuance of passports to minor children who were inside Iraq by the Iraqi embassy in that country for the purpose of sending to the Directorate of Passports .[7]

   [7]

2. The applicant’s agent conceded that this may be an accurate description of the policy, but that in practice it was very difficult, with her office’s experience being contrary to that with Iraqi clients, with money being required to assist passport applications.

3. The Tribunal considers that the applicant was not required to attend Iraq to have the passports issued, but that his presence did assist and accelerate the process. The Tribunal also accepts that the applicant was not aware that he could apply for the passport through the Embassy in Australia.

4. The Tribunal has similar concerns regarding the need of the applicant to be present for the sale of the family home. Again the Tribunal noted that an agent, be it a lawyer or a trusted person, could act on his instruction on selling the property. The applicant stated he feared that his family would be cheated out of the sale money. The Tribunal notes that the applicant had a [relative] in Iraq whom he trusted who could have sold the property on his behalf.

5. The Tribunal does not consider that the applicant had to return to Iraq to sell the property. However the Tribunal accepts that the applicant believed he had to, and in any event, did return to Iraq for this purpose.

6. The applicant provided evidence with respect to his fear of being harmed in Iraq. The Tribunal discussed the steps the applicant had taken during this period to maintain a low profile while residing in Iraq. The applicant stated that he dressed in [certain] clothing, remained predominantly in his [relative’s] home and spent one day only in his home [village], [distance]km away from Al Basra where the applicant returned. The Tribunal noted that the applicant had spent some time in public to achieve the outcomes he went to Iraq.

7. The Tribunal noted that the applicant had been upfront with Departmental officers, identifying to them that he had returned to Iraq and providing them with the E-ticket. He did not hide his presence in Iraq.

8. The applicant’s agent noted the provisions of Condition 8559, which details that:

   The holder must not enter the country by reference to which:

   (a)  the holder; or

   (b)  for a member of the family unit of another holder — the other holder;

   was found to be a person to whom Australia has protection obligations unless the Minister has approved the entry in writing.

9. The Tribunal notes the information on the Departmental website regarding this condition, including that:

   Condition 8559 prohibits travel by a protection visa holder to their home country, or the country from which they sought protection.

   If the holder of a protection visa with Condition 8559 attached wishes to travel to their home country, they must request written approval from the department. This permission needs to be sought before they travel.

   If permission to travel is granted before the protection visa holder departs Australia, their visa will not be liable for cancellation if they travel to their home country.​[8]

   And

   This measure was introduced to address the Government’s concern about a small number of people who are granted a protection visa by Australia in recognition of their fear of persecution or significant harm, and then return to their home country for lengthy periods of time.

   The new visa condition sends a clear message to protection visa holders that the Government takes the integrity of the protection visa programme seriously.[9]

   [8]

   [9]

10. The agent provided evidence of a letter regarding this condition that stated that where permission to return was granted the person could return for 3 weeks. The letter noted that using a passport from the return country may lead to a cancellation of the visa.

11. The Tribunal notes that Condition 8559 was not applied to the applicant’s protection visa, which was subject to no conditions, and that Condition 8559 came into effect from 18 June 2013. Condition 8559 does not apply to the applicant.

12. The Tribunal has also reviewed the decision of a Departmental officer to grant the applicant a protection visa[10]. A delegate considered the applicant’s claims and interviewed the applicant in relation to his claims. The delegate stated that the applicant was forthcoming with information about his role and job with [Agency 1], providing details of his work and supporting materials. The delegate considered that the applicant provided credible responses at the interview. The delegate also reviewed country information, as referenced in Attachment A, and specifically mentioned information from [a source] ‘highlighted the fact that [Occupation 1s] are also at risk of being killed or wounded in attacks and in some cases have been targeted deliberately’.[11]  The delegate made the finding in November 2011 that the applicant was owed protection. Further requirements for the grant of the visa to be met meant that the visa was not granted for some time after the protection assessment was made.

    [10] DIBP File [number] Folios 104-109

    [11] DIBP File [number] Folios 105

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

13. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: Incorrect answers to questions 41, 43-46 of the Form 866C which references his claims for protection.

14. The applicant claimed he would be harmed by various elements that existed in Iraq, including militia and insurgents. The applicant provided a reason why he would be targeted specifically, with supporting materials, which was accepted by a delegate after an interview and consideration of relevant country information available at the time. He provided information as to why he could not receive state protection or relocate within Iraq.

15. The delegate made the decision to find that Australia had protection obligations based on the evidence before them. That the applicant returned to Iraq in March 2014, two and half years after the assessment that the applicant was owed protection obligations and a year after he was granted his permanent protection visa does not mean that the applicant provided incorrect information with his application. The central element of the claim, that the applicant was an employee of [Agency 1], was working as [an Occupation 1], and that such [Occupation 1s] were at risk of being killed or wounded in attacks, is not affected by the return of the applicant to Iraq in 2014 for 3 months. His return to the country does not mean that the claims he made in 2011 were incorrect.

16. The Tribunal has considered the situation where the applicant has returned to Iraq, the country he stated he feared returning to. The applicant’s return in 2014 demonstrates that the fear he had in 2011 may have diminished, such that he was prepared to risk being harmed to assist in bringing his family to Australia. The Tribunal notes that the applicant believed strongly, as he has continued to consistently state, that he had to return to Iraq to facilitate the bringing of his family to Australia. Whether it was required for him to do so is certainly questionable, but the Tribunal accepts that the applicant believed it was. The Tribunal notes that the applicant has claimed to have acted in a manner while in Iraq to reduce his profile while present in Iraq, and again this may be true. It is of limited relevance given his willingness to return to that country and his home region in any event.

17. However the Tribunal does not accept the delegate’s assertion that his return to Iraq means that the applicant provided incorrect information in his protection visa application. It is not clear what that incorrect information is, noting the reasons as provided reflect mostly on the situation as found in Iraq in 2014 and beyond, and not in 2011 when the protection visa was applied for and assessed, and 2013 when finally granted. It was stated that his return in 2014 to undertake activities meant that he did not have the adverse profile as claimed in the visa application. This does not deal with the issue of the applicant being [an Occupation 1] up to 2011, a group that [a source] identified as being at risk of harm. It was also asserted that the applicant did not have to be in Iraq to undertake the administrative and financial steps to bring his family to Australia, and that had the applicant had an adverse political opinion he would not return to Iraq. The Tribunal notes that the applicant was in fact granted the protection visa on the ground of his membership of a particular social group (employees of the Iraqi government)[12] which has a perceived political support for the Iraqi government. That the applicant was a member of this particular social group and at risk of harm because of his membership of this group, as at 2011 or 2013, has not been shown to be contradicted or conflicted by the applicant’s return in 2014, or in the information he provided with his application.

    [12] DIBP File [number] Folio 107

18. The Tribunal does not accept the assertion that the changed circumstances in Iraq in 2014 and beyond, which the applicant has returned to, means that the applicant has provided incorrect information at the time of his visa application. The applicant was extremely unwise to return to Iraq at that time, as it placed him in the position where his visa could be cancelled. However the fact that the applicant returned to Iraq, which he has never hidden, does not mean that the earlier information about his claims for protection is incorrect. Simply returning to a country some time in the future from which a person has claimed to have a well-founded fear of persecution does not mean that the grounds for the grant of the visa at the time did not exist or that the applicant provided incorrect information with the application and up to the grant of the visa.

19. The Government rightfully has recognised that there may be concerns with someone who returns to their home country for lengthy periods of time, thereby introduced Condition 8559. However that is not relevant to the applicant’s circumstances as he is not subject to that condition.

20. The delegate found that the applicant provided incorrect answers in his protection visa application form. The Tribunal has considered these answers below:

    ·In response to question 41, the applicant answered that the country he feared returning to was Iraq. As the Tribunal is not satisfied that the applicant did not have a subjective fear of returning to Iraq when he applied for refugee status, the Tribunal is not satisfied that he provided an incorrect answer;

    • In response to question 43, the applicant answered that he feared he would be abducted, tortured and killed. The Tribunal does not consider this information to be incorrect, given the country information at the time, and thus the Tribunal is not satisfied that he provided an incorrect answer;

    ·In response to question 44, the applicant answered that he feared extremist Shia militia associated with Moqtada al Sadr, Sunni insurgents. The Tribunal does not consider this information to be incorrect, given the country information at the time, or that his return to Iraq after he had been granted a permanent protection visa altered this fear,  and thus the Tribunal is not satisfied that he provided an incorrect answer;

    ·In response to question 45, the applicant answered that he believed Shia fundamentalists object to the people employed by the government. The Tribunal does not consider this information to be incorrect, given the country information at the time, or that his return to Iraq after he had been granted a permanent protection visa altered this belief had at the time of his application, and thus the Tribunal is not satisfied that he provided an incorrect answer.

21. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice pertaining to the reasons why he feared harm on return to Iraq. It follows that the discretionary power to cancel the applicant’s visa does not arise

22. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

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

    Stuart Webb
    Member

    
    

    ATTACHMENT – Relevant Extracts from the Migration Act 1958:

    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.