1619833 (Refugee) - [2017] AATA 717

1619833 (Refugee) [2017] AATA 717 (6 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619833
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Filip Gelev
DATE:6 April 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 06 April 2017 at 6:09pm

CATCHWORDS
Refugee – Cancellation – Protection visa – Iraq – Particular social group – Occupation group – s 109(1) – s 107 – Incorrect answers in protection visa application – Compelling need to travel – Attending to ill family members

LEGISLATION
Migration Act 1958, ss 5, 36, 97, 98, 99, 100, 101(b), 107, 109(1), 116, 128
Migration Regulations 1994

CASES
Rezaei v Minister for Immigration and Multicultural Affairs [2011] FCA 1294
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

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).
The delegate cancelled the visa on the basis that she had provided incorrect answers, namely, she claimed to have a well-founded fear of persecution in Iraq but after her visa was granted [in] December 2012 she travelled back to Iraq on [number] occasions. 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 appeared before the Tribunal on 16 February 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa holder’s [Child 1, named]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
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
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.
The applicant is a national of Iraq, born on [date]. She is a Shia Muslim. Before coming to Australia she lived in Hillah or Al Hillah, a city on the Euphrates River, about 100km south of Baghdad, in Babil Governorate. She was [an occupation 1].
The applicant’s husband, who was [an occupation 2], fled Iraq in [year] after he refused to [carry out designated punishments on] supporters of an opposition party. He returned to Iraq in [year] but he had married another woman without divorcing the applicant. After [that time], he was living mainly with his second wife. The applicant failed to mention the existence of the second wife when she applied for protection.
She has [number] children, all born in [time range]. Her [specified children] are [also in occupation 2] and [another child] is [an occupation 3] by profession. Her [Child 1] is in Australia. She was recognised as a refugee in 2008 (RRT case [number]). Her husband, her [Child 2] and [another child] remain in Iraq.
[In] August 2010, the applicant arrived in Australia as the holder of a [temporary visa]. She was invited to visit by her [Child 1].
[In] September 2010, the applicant applied for a Protection visa. [In] April 2011, the delegate decided to refuse to grant the visa. On 14 November 2012 the Refugee Review Tribunal (RRT) remitted the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act 1958, being a person in respect of whom Australia has protection obligations under the Refugees Convention.
The Tribunal made its ultimate finding based on a number of the claims put forward by the applicant (at paragraphs 214-216 of the RRT decision):
First, the Tribunal finds that the applicant has well founded fear of persecution for reason of political opinion because of her relationship to her husband and [specified children], [all in occupation 2] (Claim 1 above), and also because of her own profession as [an occupation 1] (Claim 2), and because of her religion as a Shia (claim 3), her refusal to impose the burqa at her [workplace] (Claim 4) and because members of her family did not go to religious gatherings when Islamists demanded it (Claim 5). These all give rise to well founded fear of persecution as a person regarded as opposed to the Mahdi Army and its splinter groups, or Al Qaeda and other militant groups, which are similar at least in their willingness to resort to violence against their perceived enemies.
Second, the Tribunal finds that the applicant has well founded fear of persecution for reason of religion arising because of her relationship to her husband and [specified children], all [in occupation 2] (Claim 1), because of her religion as a Shia (claim 3), her refusal to impose the burqa at her [workplace] (Claim 4) and because members of her family did not go to religious gatherings when Islamists demanded it (Claim 5). These all give rise to well founded fear of persecution as a person regarded as opposed to the beliefs of the Mahdi Army or other violent, religiously motivated or oriented groups, and thereby regarded by various groups of violent militias as a Kaffir or apostate from Islam.
Third, the Tribunal finds that the applicant has well founded fear of persecution for reason of her membership of each of three particular social groups, namely: her family (Claims 1 & 5); [occupation 1] (Claims 2 & 4) and women (Claim 6).
She was granted a Protection visa [in] December 2012.
The applicant undertook five trips to Iraq while the holder of a Protection visa. The first time she left Australia was only two months after she was granted the visa, on [a date in] February 2013. The trips were as follows:
·[specified dates in] February 2013 to [August 2013] ([number of] days)
·[November] 2013 to [March] 2014 ([number] days)
·[May] 2014 to [November] 2014 ([number] days)
·[January] 2015 to [June] 2015 ([number] days)
·[September] 2015 to [March] 2016 ([number] days).
Each time the applicant declared on the outgoing passenger card that the country where she will spend the most time abroad is Iraq.
[In] June 2016, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of her Protection visa.
The particulars of possible non-compliance with s.101(b) of the Act were that the applicant had provided incorrect answers to questions 40-46 of Part C of the application for a Protection visa. Question 40 is in relation to the applicant’s education. Question 41 merely refers to the applicant’s country of nationality Iraq. Therefore, the Tribunal finds that the NOICC is incorrect in so far as it states that the applicant provided incorrect information in answering questions 40 and 41.
The applicant answered questions 42 and 46 with “Please refer to my statement”. The part of the statement which is reproduced by the officer in the NOICC covers many past events:
·I lived a hard life in Iraq because my husband was [an occupation 2]. He was forced during the Iraqi Iranian war to carry out the punishments imposed by Saddam Hussain the ex president on the army deserters by [details]. Due to his refusal to carry out such [punishments], he was arrested, tortured and referred to the Court. But he managed to escape from Iraq and headed accompanied by the family to [Country 1]. The remaining members of the family bore great hardships and faced grave dangers because of his escape.
·After the fall of the Baathist regime and the advance of the coalition forces, this prompted my father and his [family] (sic) to return to Iraq to start a new life.
·Regrettably, the security conditions in Iraq deteriorated and all of sudden the [occupation 2s] attracted the enmity of the Islamic powers and the group of Al Qaeda want to impose an Islamic fanatic system on the model of Iran. Thus, the murder of [various professions including occupation 2s] spread all over the areas of Iraq.
·[Occupation 2s] like my [Child 1] became exposed to attacks and torture. My [Child 2] escaped from [the place] where she works as an [occupation 2]. She faced death inside [that agency] when groups of Al Mandi Army attached it. These groups considered [such occupation 2s corrupted] and unbelievers because they [serve specific clients].
·I bore the harassment of those terrorists (Al Mandi Army) who kept coining over to ask about [Child 2] and [Child 1] and also about my husband and [another child]. They wanted to know why we do not cooperate with these groups and whether we are unbelievers abstaining from attending the Da'wa religious assemblies and symposia.
·Dangers increased on me as I remained alone at the house after my [Child 2] stopped working and escaped. Even the [employer] started to chase her.
·My husband accompanied [other child] and headed to [Country 1] seeking some rest and safety for himself and for [our child] who faced an attempt on [their] life as [an occupation 3].
·I am approaching your department with this urgent application after I found myself in a situation where it would not be possible for me to return. My house is still in ruins because of the explosions. My husband and [child] are escapees. My [other specified children] are in hiding to avoid the increasing Islamic persecution.
·The Government is unable to protect us. It is living under the protection of the Iraqi and American forces in the Green Zone leaving the Iraqi people facing the killing, the explosions and detonation of the explosive belts and charges.
The NOICC does not specify which paragraphs or sentences in the applicant’s statement appear to be incorrect answers. It is not clear from the NOICC which aspects of the history of persecution set out in the statutory declaration was alleged to be incorrect. The NOICC contained a general unparticularised statement – it appeared that the applicant did not “hold the adverse profile in Iraq that [she] claimed to have.”
The NOICC also referred to the applicant not fear for her personal safety, but that is a subjective state of mind, not “particulars of incorrect information”; the applicant does not state expressly in her statement reproduced in the NOICC that she fears for her personal safety.
The applicant did claim the following in her statement (second last dot point): “I am approaching your department with this urgent application after I found myself in a situation where it would not be possible for me to return.” However, this claim is not specifically identified in the NOICC.
The NOICC included superfluous information such as the contents of submissions provided to the RRT. Section 101(b) relates to information provided to the Department of Immigration, not information provided to the Tribunal on review. In the Tribunal’s view, the inclusion in the NOICC of such details made it more difficult to ascertain the particulars of the allegedly incorrect information.
According to the NOICC the total number of days the applicant spent inside Australia between the date of her first departure from Australia on [the date in] February 2013 (rather than from the date the Protection visa was granted two months earlier) until her return to Australia [in] March 2016 (rather than until the date on which the NOICC was issued three months later) was [number] days. The total number of days outside of Australia was [number] days.[1]
[1] [Deleted].
The Tribunal considers that the relevant period should be counted from the date of the grant of the visa to the date of the NOICC – [from a date in] December 2012 to [a date in] June 2016. The Tribunal acknowledges that even by this calculation the applicant spent only [number] days in Australia and [larger number] out of Australia.
The NOICC explains that the visa holder, it appears, travelled to Iraq on five occasions without harm or hindrance, suggesting that she did not have the adverse profile she claimed to have. The fact that she left Australia only two months after first being granted the visa and remained offshore for a total of [number] days “further appears to refute [the applicant’s] original claims of fear for [her] personal safety and/or persecution in Iraq as declared … in [her] protection visa application.”
The Tribunal notes that the sufficiency of notification is to be tested by reference to the statutory purpose. That is, it must be sufficient to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide relevant information and submissions.
The answers provided by the visa holder to the NOICC and at the Tribunal hearing indicate that she understood what was said to be the incorrect information she provided: she was not of adverse interest to Islamic militants when she left Iraq, and she did not have a subjective fear of returning to Iraq at the time she lodged the Protection visa application.
Despite the deficiencies in the NOICC, 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?
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) of the Act. The Tribunal has already set out in some detail above the contents of the NOICC.
The applicant’s protection claims
The applicant’s claim to be of adverse interest to militants or insurgents derived from the adverse interest Islamic militants had towards other members of the family – her husband and [specified children] for being [in occupation 2], her [other child] for being [an occupation 3]. She did not claim to have an “adverse profile” of her own.
The applicant’s statement accompanying her Protection visa application stated that at some unspecified point in time, due to “abominable circumstances”, her husband went to live on a relatives’ farm where he stayed alone for more than a year.[2] According to the same statement, written in September 2010, the applicant’s [other child] and her [Child 2] are (present tense) staying with the applicant’s husband at that farm.[3] Finally, according to the same statement, on 10 May 2010 her husband and [other child] travelled to [Country 1].[4]
[2] At folio 109 of DIBP file [Number].
[3] At folio 109 of DIBP file [Number].
[4] At folio 109 of DIBP file [Number].
According to the applicant’s evidence at the protection interview with the Department, in May 2010 her [other child] and her husband escaped to the Iraqi countryside, not to [Country 1][5] She also told the delegate that her [other child] last lived with her a few months before she came to Australia (in August 2010), and her [Child 2] last lived with her three years previously.[6] Earlier during the interview she claimed that her husband, [and specified children] had escaped to a relatives’ place together.[7] The applicant insisted she still did not know where they were at the time of the interview with the delegate.[8]
[5] See RRT decision at p. 14.
[6] See RRT decision at p. 12.
[7] See RRT decision at p. 12.
[8] See RRT decision at p. 12.
The applicant told the RRT at her hearing on 31 August 2011 that her husband had gone to the countryside in late 2009 and then “disappeared” (there was no mention of travel to [Country 1]).[9] [Child 2] had gone to join [the] father and then disappeared too.[10] As of the time of the RRT hearing she claimed still not to know her husband’s[11] or her [specified child’s] whereabouts.[12] It would appear that the RRT did not ask about [another child’s] whereabouts.
[9] See RRT decision at p. 18.
[10] See RRT decision at p. 19.
[11] See RRT decision at p. 18.
[12] See RRT decision at p. 19.
The Tribunal is reproducing the applicant’s contradictory evidence in relation to the whereabouts of her husband, [and other children] in the period 2009-2010, because a central element of her protection claims was that immediately before coming to Australia she was living alone in Iraq.
She also claimed that her house had been partially or completely destroyed.
She claimed she had not gone to the countryside/[Country 1] with her relatives because of her advanced age and ill health. Obviously, this claim is contradicted by her ability to travel to Australia alone in 2010 and then to complete five return trips from Australia to Iraq. The Tribunal also notes that at the time the applicant’s family had fled the semi-ruined family home, she was progressing her application for a [temporary] visa, which was granted in early May 2010.
In a statutory declaration to this Tribunal, dated 23 September 2016, the visa holder claimed that when she fled Iraq the family home was in a very poor condition and it had since been destroyed. However, her relatives had returned from wherever they had been. The family now lived at a farm in [a specified location in] Hillah:
·The applicant’s husband was retired and unable to work because of ongoing medical problems
·The applicant’s [Child 2] had resumed working [in occupation 2], on a part-time basis, in [this location]
·The applicant’s [child’s business] in Baghdad had been destroyed in an attack on the area (at an unspecified time), [where that child] was physically injured in an attack [in] January 2015 and since then he has been operating his business in secret in [a location in] Baghdad.
At the Tribunal hearing the applicant mostly repeated what she had already said in response to the NOICC. She did fear returning to Iraq at the time she applied for protection. When she returned to Iraq she was in hiding, living in a small village and not going out much.
Astonishingly, she told the Tribunal she did not know where her husband went after [the year he first left Iraq]. She thought it may have been [Country 1]. The Tribunal accepts that when he left there would have been no way for the applicant to be in contact with him. However, it is very surprising that when he finally returned to Iraq, she did not learn what country he travelled to. The Tribunal places significant weight on the applicant’s inability to answer basic and rather important questions of this nature. The Tribunal accepts that the applicant was not deliberately avoiding answering questions, but genuinely unable to do so.
She confirmed that her husband had married another woman while he was away for [a large number of] years. However, the second wife left him – and went back to whatever country she was from – because things were so bad in Iraq. She said this wife may have been [from one of two named countries]. She claimed that she never met her husband’s second wife face to face. The husband had [number] children with his second wife; the children left Iraq with their mother. The applicant said that when he first returned to Iraq her husband spent most of his time with his second wife, and some time with her.

The Tribunal accepts that the applicant never divorced her husband and the fact that he had a second wife was both embarrassing for her. While it was somewhat relevant to her protection claims and she should have mentioned it to the Department of Immigration or the Tribunal, her failure to do so does not make the applicant a less credible witness.
At the hearing the Tribunal expressed its surprise that after her husband left her alone with [number] young children and returned [large number] years later with a new wife, the applicant was still prepared to travel from Australia to Iraq to look after him. She responded that she had an obligation to take care of her husband despite everything that happened. This, she said, was dictated by her culture and Islam. She told the Tribunal she did not like her husband; she went back despite all the dangers, out of a sense of duty.
The Tribunal asked whether her house had been destroyed before she left Iraq in 2010. She said not long before she left the country, it had been damaged after an explosion which targeted a mosque nearby. Afterwards the house was no longer suitable for habitation. Everyone else had run away and she was alone. She was moving between neighbours and relatives. This claim is supported by the applicant’s evidence at the Tribunal hearing that when she travelled from Australia back to Iraq, her husband was living in a different place, not where he had been living prior to 2009.
The Tribunal noted that she has given confusing evidence about the whereabouts of her husband, [and specified children] in 2009-2010. The applicant, once again, proved unable to recall dates and events. She said that extremists threatened [Child 2] at the [workplace] and as a result [that child] ran away in 2007 or 2008 or 2009. The applicant said that [that child] did not come back home before the applicant left for Australia. Sometime after [that child] left, the applicant heard [they were] hiding at the relatives’ farm.
The applicant’s husband, who was living some of the time with the applicant and most of the time with his other wife, also went there. The applicant told the Tribunal at one point her [specified children had joined their] father. She was very ill at the time with [a medical condition] and could not go anywhere.
It was not clear from her evidence when it was that she last lived with any one of these three relatives, when it was that they fled to the farm, whether they travelled there separately or together, how long they stayed on the farm, whether her [other child] and husband travelled onwards to [Country 1], if so why [Child 2] did not travel with them, etc.
Despite the inconsistencies about the times when each one of her relatives (husband, [and specified children]) left the area, where they went, and when they returned, the applicant insisted that the gist of her claim was true. She had lost touch with her close relatives in Iraq, she had no house to live in and her life was at risk at that time around the time she came to Australia in 2010.
The applicant said that she did not have any direct contact with her husband from the time she left Iraq to come to Australia until she heard that he had [suffered a medical condition] [in] February 2013. She conceded that she did re-establish contact with [another child] and her [Child 2] prior to [that date in] February 2013, but she could not tell the Tribunal when this happened.
The Tribunal has some concerns about the applicant’s claim that from early 2010 up until the time she left Iraq she was all alone and that at least up until the time of the RRT hearing, she did not know the whereabouts of her husband, [and specified children].
Having considered the applicant’s evidence as a whole, the Tribunal has nevertheless decided to give her the benefit of the doubt and concludes that the applicant has been telling the truth for the following reasons.
First, the Tribunal accepts that the applicant’s husband and [specified children] were [in occupation 2]. Country information, referred to in the RRT’s 2012 decision, clearly supports the applicant’s claims that [occupation 2s] in Iraq were targeted by insurgents around 2010 and it makes sense that her husband and [child] would have gone into hiding.
Secondly, the Tribunal finds that the applicant’s inability to recall the movements of her relatives in 2009-2010 is not necessarily due to the fact that she is lying. It could be due to the following:
·after the US led invasion of Iraq in 2003, there was no peace and stability for the applicant and her family and the whole country erupted into a brutal sectarian civil war
·her [children] and husband were all subjected to threats of harm or actual harm
·her [Child 1] and [Child 2] fled for similar reasons but at different times – [Child 1] in 2007 and [Child 2] sometime later
·the applicant’s husband was mostly living with his second wife and the applicant did not always know where he was – in hiding or with his other wife
·the applicant’s [other child’s] shop was destroyed and after she came to Australia was almost killed in a terrorist attack in 2015
·her [other child] had to spend some time in Iraqi Kurdistan, because his life was at risk
·2010 in particular was a highly traumatic time during which she was left alone and had to fend for herself after the family home was destroyed; she was moving from place to place, doing her best to survive and her relatives’ exact movements were unimportant.
It is hardly surprising in the circumstances that events from the period 2003-2010 would have blurred into an amorphous mass –rather than a neat linear series – of traumatic events. As the witness, the applicant’s [Child 1], told the Tribunal, this was a time when everyone was just looking after themselves.
The Tribunal respectfully adopts the reasoning of the AAT in case 1511806 (differently constituted):
27. By virtue of the wording of section 101, the Tribunal determines that the ‘relevant time’ in which the Tribunal must assess whether there is non-compliance is at the time of lodgement of the visa application form [but noting the time frame which may arise if information was given or provided as described in section 99 of the Act]. The Tribunal notes that section 99 of the Act provides an expanded definition to include certain information given or provided, and further that such information is taken to be an answer to a question in the non-citizen’s application form, for the purpose of section 101(b). In this case, the alleged incorrect answers are in the Form 866C which is a part of the application form. The Tribunal notes that the obligation of a non-citizen to provide correct answers continues up until the grant of the visa, but that continuing obligation is under another provision of the Act.
…
38. The NOICC and the departmental decision record refer to the re-availment of the protection of Iraq. The Refugee Convention provisions in Article 1C are directed at persons who, having once required Convention protection, no longer do so. Article 1C(4) deals with voluntary re-establishment of a person in the country where the persecution was feared. Reestablishment in such circumstances is indicative that a refugee no longer seeks protection outside their country of origin. Article 1C(4) is not a specific basis for cancellation in section 101(b). Whilst the concept of re-availment is mentioned in the NOICC and the decision record, of itself, it cannot be a basis for cancellation under section101(b). The decision record also refers to re-availment but then also asserts incorrectness of the statements (which incorrectness is not specifically asserted in the NOICC).
39. In the circumstances of this case there is arguably re-availment contemplated by Article 1C(4). However, the notion of re-availment is underpinned by acceptance of refugee status at some earlier point of time.
40. In essence, the cancellation in this case is on a basis which does not sit easily with the notion of “incorrect information”. In contrast, the Tribunal notes the case of Rezaei v Minister for Immigration and Multicultural Affairs [2011] FCA 1294 which also dealt with cancellation of a protection visa. In that case the cancellation was made under section 128 of the Act. The applicant was outside of Australia and a ground under section 116 of the Act was established. Subsection (1)(a) of that provision referred to “any circumstances which permitted the grant of the visa no longer exist.” The difference in the wording of the provisions is material. In the current case there has to be incorrect answers at the relevant time whereas the section 116 provision effectively contemplates a change in circumstances. In this case the visa has been cancelled under section 109 of the Act on the basis of incorrect answers being given or provided, rather than circumstances no longer in existence.
41. Whilst there may be some discrepancies in information given by or on behalf of the applicant, for example as to what caused him to return to Iraq-his former representative suggested his parents pleaded with him and his own evidence which appeared to be borne of concern for his parents (rather than a direct plea by them) and issues around the work he undertook and for whom in Iraq, those matters, of themselves, do not amount to noncompliance. Any issues as to credibility of the applicant’s information and evidence is not such as to allow the Tribunal to conclude that there has been a breach of section 101(b).
….
44. In order to affirm the decision the Tribunal must be positively satisfied of the incorrectness of the answers to questions nominated in the NOICC. The Tribunal is not so satisfied. The evidence is not such that it can be established positively that the answers were incorrect at time of lodgement of the protection visa application.
45. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
The Tribunal notes that the NOICC in the present case did not refer to re-availment. However, the reasoning in that matter is otherwise relevant to the present case. In the present case the time of application for the purposes of s.101(b) is [a date in] September 2010. The applicant did not leave Australia and travel back to Iraq until [February] 2013.
The Tribunal considers that, as in case 1511806, there was potentially an argument to be made that the applicant should have advised the Department of change of circumstances, namely, that after lodging the application she re-established contact with her husband, [and specified children]. However, the basis of the cancellation in the present case was the provision of incorrect information at the time of application.
The Tribunal accepts that at the time the applicant left Iraq she was living alone, her house had been severely damaged and unfit for human habitation. Muslim extremists were seeking to harm her relatives and threatening to harm her; in that sense the applicant “held an adverse profile” at the time she left Iraq. It further finds that at the time she left Iraq and at the time she applied for protection, she was fearful for her safety because of insurgents.
The Tribunal finds that the applicant did not provide incorrect information. There was no non-compliance with s.101(b) of the Act.
For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
Change of circumstances
While not strictly necessary to dispose of this matter, the Tribunal wishes to make some observations in relation to the applicant’s trips back to Iraq in case the Department of Immigration is considering cancelling the applicant’s visa on the ground of change of circumstances (s.116(1)(a)).
[In] July 2016, the visa holder provided a response, with the assistance of her Migration Agent, to the NOICC to explain her trips back to Iraq:
·There were a number of traumatic reasons why she chose to ignore the risk of harm and felt the need to return to her family in Iraq:
Ø [February to August 2013]: She returned to Iraq due to urgent medical condition affecting her family. Her husband, [named], suffered a [medical condition] [in] February 2013. [Another relative] was also ill at this time. She remained in Iraq to care for and support her husband and [other relative] because there was nobody else who could provide the care.
Ø [November] 2013- [March] 2014: She travelled to Iraq to continue to care for her husband. It was during this time that there was a death in the family, her [other relative] died [in] February 2014.
Ø [May to November] 2014: she travelled to Iraq to continue to care for her husband…
Ø [January to June] 2015: She returned to Iraq because [another child, named], was attacked [in] January 2015. He was travelling on a freeway with [work colleagues] when their car was fired upon. Also at this time her [Child 2], had a major [operation] [and] also required ongoing care and support following [this medical event].
Ø [September] 2015-[March] 2016: She had to return to Iraq to continually care for her husband and deal with important legal issues. She had to settle legal affairs to her father’s property. It was during this time that her [Child 2] suffered from [a condition] and also had another [medical event] in February 2016.
….
·It is her explanation that she returned to Iraq because of a compelling need to travel and she was prepared to ignore her fears and put her personal safety and life at risk.
While the visa holder spent an extraordinarily long time in Iraq, well more than half the time between the date of visa grant and the date of the NOICC, the Tribunal is not persuaded that she is no longer a person in respect of whom Australia has protection obligations.
The visa holder is elderly and unwell. Her husband is disabled ([his physical condition] affected his cognitive abilities as well) and unable to protect her if she returns to Iraq permanently. Her [other child] travels back and forth between Babil and Baghdad and [was] attacked by militants as recently as 2015. Her [Child 2] now lives separately, with [a spouse].
The Tribunal accepts that whenever the applicant travelled to Iraq, she spent her time in a small village and hardly went out, although she did venture out to do some shopping and to organise certain legal affairs.
The Tribunal considers that an argument under s.116(1)(a) of the Act that the circumstances that permitted the grant of the visa no longer exist is unlikely to be made out.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Filip Gelev
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.