1703474 (Refugee)

[2017] AATA 2985

1703474 (Refugee) [2017] AATA 2985 (22 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703474

COUNTRY OF REFERENCE:                  Iraq

MEMBERS:Jan Redfern (Presiding)
Ann Brandon-Baker

DATE:22 December 2017

PLACE OF DECISION:   Sydney  

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

Statement made on 22 December 2017 at 1:05 pm

CATCHWORDS
Refugee – cancellation of protection visa under s 109 of the Migration Act 1958 (Cth) – alleged non-compliance with s 101 by providing incorrect information that applicant feared harm from extremist groups in Iraq and could not return – cancellation based on visa holder’s return to Iraq – identifying particulars of non-compliance described in notice of intention to consider cancellation – sufficiency of particulars - nature and scope of review – later return for limited purposes not inconsistent with original claim – no evidence to contradict earlier claims - non-compliance not established – power to cancel visa does not arise – cancellation set aside

Practice and Procedure – Administrative Appeals Tribunal – powers on review of s109 cancellation – fact-finding and sufficiency of evidence – no onus on applicant to satisfy Tribunal that statements are correct

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 108, 109

CASES
Zhao v MIMA [2000] FCA 1235
SZEEM v Minister for Immigration [2005] FMCA 27
Zhong v Minister of Immigration and Citizenship [2008] FCA 507
Burton v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA1455
Saleem v Migration Review Tribunal [2004] FCA 234
Minister for Immigration and Citizenship v Brar [2012] FCAFA 30
Gido-Christian v Minister for Immigration [2007] FMCA 825

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that material information provided by the applicant to the Minister in order to obtain a protection visa was incorrect. 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 15 August 2017 and 1 November 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent, who provided submissions and oral argument.

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

   BACKGROUND

5. The applicant is an Australian permanent resident born in Baghdad in 1980.  He first arrived in Australia as the holder of a sponsored family visitor visa [in] June 2011.

6. After his arrival in Australia [in] June 2011, the applicant 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 opinion, membership of a particular social group and ethnicity. In support of his application, the applicant provided a statement setting out the reasons why he was seeking protection.

7. In summary, the applicant claimed that he was working as [Occupation 1] for [Company 1], a [company] providing services to the United States military in Baghdad under a contract with the Iraqi government. He managed a number of projects for [Company 1] which were sponsored by [the US Army].  He claimed that he 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.   

8. A delegate of the Minister considered these claims and found them to be ‘plausible and credible’. Relevantly, the delegate found (at pp10 to 11 and at p12 of the Department of Immigration and Border Protection’s records) as follows:

   Reasons and Assessment

   In assessing whether the applicant has a well-founded fear of persecution if he returned to Iraq, I have considered independent country information, the testimony of the applicant at interview, and the claims made in his application for a Protection visa. The applicant was interviewed in relation to his Protection visa application [in] 01/2012 with the assistance of an accredited interpreter in Arabic. The applicant’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.

   He states that the dangers that he faces - have already occurred, and the authorities are unable to protect him from extremist elements and groups. The applicant has submitted the relevant police reports he referred to in his statement; photos of the applicant at work as [Occupation 1], with American military soldiers, inspecting [work being carried out]; and photos of a burnt out building. While I cannot be sure that the building was his previous abode, the police reports and the letter of employment from [Company 1], 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 Convention reason 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.

9. While in Australia, the applicant completed a number of courses and worked in [a certain field] for a period.  He has been working as a [occupation] for [a company] since October 2016.  

10. The applicant 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 applicant married his wife in Iraq.  She resides in Iraq and the applicant applied for a subclass 309 partner visa [in] March 2016. The visa has not been granted.

11. According to the Department’s records, the applicant’s birth name is [birth name] and it was under this name that he travelled to Australia and lodged his protection visa application. The applicant changed his name [in] 2012 to [current name].  Nothing turns on this and a subsequent Department assessment concluded that the variations in the names were consistent with Arabic naming conventions and spelling.  

12. For the purposes of this application, the Tribunal is satisfied that the applicant is the same applicant that applied for the family sponsored visitor visa and subsequently the protection visa, the cancellation of which is subject to this review.

13. On [in] July 2016 a delegate issued a Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act on the grounds that the applicant had provided incorrect answers in his protection application. The basis for the proposed cancellation was said to be that the applicant had voluntarily returned to Iraq without issue, which demonstrated his life was not at risk and he did not appear to hold the claimed adverse profile. The applicant was given the opportunity to respond to the NOICC, which he did. In summary, the applicant 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 he returned to visit his mother who was in hospital with a stroke. He stayed in his brother;s apartment and looked after his mother after she left hospital. On the second occasion 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.

14. The delegate considered the response and found that the applicant had provided incorrect information for the following reasons at [41] to [43]:

    41.The visa holder has returned to Iraq, the country from which he claimed protection, without apparent harm on two occasions. On each occasion the visa holder spent over two months in Iraq. I consider that this travel is inconsistent with the information that the visa holder put forth in his Protection application where he claimed that he could not return to Iraq for fear of being harmed by terrorist groups. Further, the visa holder has not provided any information to indicate that his profile has changed and that he is no longer of interest to the terrorist groups that he claims he fears persecution from.

    42.I therefore consider that the visa holder has not complied with section 101(b) of the Act as he provided incorrect information with his application for a Class XA Subclass 866 Protection Visa. Specifically, I consider that the visa holder provided incorrect information to the following questions:

    •     In response to question 43 the visa holder claimed that he could not return to Iraq for fear that he may be killed. This information is incorrect as the visa holder has since returned to Iraq on two occasions without apparent harm.

    •     In response to question 44 the visa holder claimed that he would be harmed by terrorist groups including Al-Rashidin Army if he returned to Iraq. This information is incorrect as the visa holder has since returned to Iraq on two occasions without apparent harm.

    •     In response to question 45 the visa holder claimed that he would be harmed by the terrorist groups as he held a profile as a US sympathiser. This information is incorrect as the visa holder was not of interest to these terrorist groups as is evidenced by his having returned to Iraq on two occasions without apparent harm.

    •     In response to question 46 the visa holder claimed that the authorities in Iraq could not protect him. This information is incorrect as the visa holder was not of interest to terrorist groups as is evidenced by his having returned to Iraq on two occasions.

    43.As the visa holder has not complied with section 101(b) of the Act his visa is liable for cancellation.

15. Having found that there was power to cancel the applicant’s visa under s.109 because there had been the relevant non-compliance under the Act, the delegate then proceeded to consider whether the visa should be cancelled. In considering this, the delegate had regard to an International Treaties Obligation Assessment (ITOA) report dated [in] January 2017 about whether Australia had protection obligations to the applicant. The delegate who conducted the ITOA was not satisfied that Australia had such obligations. In making this assessment, the delegate considered the original claims made by the applicant and concluded that those claims were not credible. The delegate did not interview the applicant.

16. The delegate decided to cancel the visa for the following reasons at [74]:

    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 visa holder to retain the significant benefit the incorrect information has provided him and the need to deter others from similar conduct. I find that the non-compliance was serious and that the visa holder has obtained a significant benefit from his non-compliance. I acknowledge that the visa holder has obtained employment in Australia; however, I find that the reasons for cancellation outweigh the reasons not to cancel in this case.

    LEGISLATIVE FRAMEWORK AND QUESTIONS FOR DETERMINATION

17. 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.

18. 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. In this case the notice that was issued was the NOICC dated [in] July 2016.

19. 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.

20. While it is well established that civil concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in administrative decision-making, in cases where the existence of certain facts form the basis of the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision-maker must be satisfied about the existence of the facts before exercising the power.

21. Under the procedure for cancellation established by s.109, the visa holder is given the opportunity to respond to a notice issued under s.107 and the decision-maker must have regard to this response in deciding whether there has been non-compliance and whether to cancel the visa. However, this opportunity to respond does not change the nature of the decision-making process. The obligation is on the decision-maker to be satisfied there has been non-compliance, not on the former visa holder to establish that the facts or grounds do not exist. The authority for this proposition is Zhao v MIMA, where the Federal Court opined as follows:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[1]  

    [1] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32]

22. While Zhao was concerned with cancellation under s.119, these comments are equally applicable to s.109.

23. The questions for determination are therefore:

    (1)Was the delegate entitled to issue the notice under s.107, namely are we satisfied that the delegate reached the necessary state of mind to engage s.107?

    (2)If the answer to (1) is yes, was the notice valid?

    (3)Was there non-compliance by the visa holder in the way described in the notice?

    (4)If the answer to (3) is yes, how should the discretion to cancel be exercised?

24. A preliminary issue for determination is whether the delegate reached the necessary state of mind to issue the NOICC and, if so, whether the NOICC was valid.  If the NOICC was not validly issued, the lengthy factual enquiries about whether there was non-compliance and whether the visa should be cancelled in the circumstances of the case do not arise. Accordingly, we will deal with this as a threshold issue before discussing the evidence provided to the Tribunal.

    WAS THE NOTICE OF INTENTION TO CONSIDER CANCELLATION VALIDLY ISSUED?

25. We are satisfied that the delegate reached the necessary state of mind to issue the NOICC because the delegate expressly states that she has formed the view that there has been non-compliance and there is some basis for her findings. The delegate based the NOICC on concerns about the return of the applicant to Iraq twice within five years of his claim for protection. For the reasons later outlined, this ground, by itself, is not strong. However, we accept that this raises, at the very least, a question about whether the applicant’s claim for protection made in 2011 was warranted. We therefore accept that the delegate reached the required state of mind.

26. The question that then arises is whether the NOICC was valid, namely, whether it complied with the requirements of s.107 of the Act.

27. A notice under s.107 of the Act is required to give particulars of the possible non-compliance (refer s.107(1)(a)).

28. The NOICC issued [in] July 2016 referred to the answers given by the application to questions 42 to 46, which sought information about the applicant’s protection claims. The questions were as follows:

    Questions 42: Why did you leave that country?

    Questions 43: What do you fear may happen to you if you go back to that country?

    Questions 44: Who do you think may harm/ mistreat you if you go back?

    Questions 45: Why do you think this will happen if you go back?

    Questions 46: Do you think the authorities of that country can and will protect you if you go back? If not, why not?

29. The NOICC noted that the applicant answered these questions ‘see attachments’ and included the statement provided by the applicant in answer to these questions in its entirety as follows (not corrected for spelling and grammar):

    I am a [Occupation 1] working in a private company called [Company 1] working in the field of [description of works carried out by [Company 1], the company carries out [work] granted by the US military only to their commitment to working conditions and timing of payments and the absence of the problems that we face when working in the [work] granted by the Iraqi government where there is a delay in the financial payments, as we are forced to pay bribes to receive our financial payments and not to obstruct the work of our employees and the movement of our [equipment] to work, so the company does not carry out any contract with any governmental agency.

    [In] 2011 I found a threat paper lying on the door of the house where I live which is located in [a] neighbourhood (which I rented because its close to my workplace) by a group calling itself Al-Rashidin Army, one of the organisation of al Qaeda, the paper content is a threat to kill me and burn my house and kill my family if I does not quit my work considering me as a cooperative with the US Army and a traitor to my country from them point of view, I did not taking the threat seriously and I continued my work as usual.

    [Later in] 2011 My neighbour called [me] as I was in my family’s house to tell me that my house is burning and he has called the fire-fighter’s station and police then I went to my house and when I arrived the fire brigade had extinguished the fire and the house has burned down completely and the fire was intentionally according to the report of the fire investigators. Next [day] I went to the police station and asked for the complaint against the unknown terrorist group and reported about the threat that I found a few days before the fire and that fire was also intentionally (as shown in the police report and photos attached). Then the owner of the house called me and asked me to repair damage done to the house and when I told him the cause of the fire he decided to repairing the damage on the condition that I have to pay the cost of the damage, so I sold the apartment that I own to pay the value of the damage caused by fire.

    Then I started to move from one place to another and I continued my work because there are a presence of professional [commitments] in my conscience although that am exposure to dangerous and severe psychological pressure and the fear that became accompanied me.

    [Later in] 2011 I was [at] work and we were surprised by an explosion voice and breaking of the company’s windows glass and when we went out to investigate we found that my car had been blown up and burned completely and when the army and police forces are arrived to investigate the incident they took us to the police station where they insult me and to investigate serious and cruel because I am the owner of the car and after the issuance of the report of the explosive team which proves that the incident happened as a result of explosives adhesives in attempt to kill me and after opening the previous investigation which prove that I had been threatened and they were burned my house formerly they add this incident to the previous complaint considering that the incident is linked to the process of threat and they release me (as shown in the police report and photos). After that I could not continue my work in the company out of fear for my life which broke down completely.

    I was exposed to several threats during my work in the company, Most of the threats was through telephone calls, on one occasion they put envelope containing a bullet at the door of my family house with my name on it and then I received a threat by telephone, but I ignored all these threats and I continued my work, but with taken some precautions and began to  change my way every day, I did not went to My family’s house for a while, I started to sleep in either the company or at one of [work sites] where we have [facilities] for [staff] of the company, and it was difficult times for me.

    Now I cannot live a normal life, especially after losing everything I own after the recent events and after that my life became in danger and full of fear because I am challenged there terrorists and ignored them the thing that sparked their anger and hatred on me and I put myself and my family in danger, forcing them to change their place of residence but they still in the risk because we do not know what the terrorists will do, I also cannot go back to my country because the fear that they kill me, I cannot work in other areas except the construction because it is the only job that I know which would put me at another risk.

1. The delegate referred to the fact that the applicant had returned to Iraq on two occasions for over two months and gave the following particulars of the non-compliance with s.101(b) of the Act:

   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 cooperation 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 and on both occasions 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 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 yourself.  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 section 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.

2. Section 101(b) provides that a ‘non-citizen must fill in or complete his or her application form in such a way that … no incorrect answers are given or provided’.

3. The applicant’s representative submitted that the NOICC did not sufficiently particularise the possible non-compliance alleged and was therefore invalid. The applicant relied on SZEEM v Minister for Immigration [2005] FMCA 27 and Zhao and submitted that because of the significance of the consequences, a notice issued under s.107 must contain sufficient detail to tell the recipient what he or she must meet in any response.

4. It was contended that the reference to the applicant appearing not to have an adverse profile at the time of his application for protection does not sufficiently particularise the profile which is said to be adverse. We do not consider this to be a persuasive submission. It is clear from the NOICC that the ‘adverse’ profile was the applicant’s profile, as set out in his statement referred to in the NOICC, as a [Occupation 2] working with [Company 1] in 2011 and earlier and his perceived association with the US Army.

5. In our view, there is a more fundamental problem with the NOICC. The NOICC states that the fact the applicant has returned to Iraq twice, once in late 2013/early 2014 and then again in late 2015/early 2016, ‘appears to demonstrate’ that the applicant’s life is not at risk from extremist groups and that the applicant did not hold the claimed adverse profile. Returning to Iraq for short periods does not, without more, establish either of those things. Relevantly, the fact the applicant was not harmed, particularly given the limited nature and extent of his travel, does not establish that he was not at risk from extremist groups over two and four years earlier. For instance, circumstances in the country of origin may have changed and in some cases, such as this, the circumstances prevailing at the time of the claim may also have changed. At the time the applicant made his application he claimed fear of persecution because he was working on major projects in Baghdad for the US Army. When the applicant returned to Iraq over two years after he left, he was not working for [Company 1] and reportedly kept a low profile. Similarly, the fact the applicant was not harmed on his return in 2013/14 or in 2015/16, does not establish that he did not hold an adverse profile previously.

6. The question is whether, given these shortcomings, the NOICC is valid and sufficiently identifies the information said to be incorrect and, therefore, the non-compliance or possible non-compliance with s.101 of the Act.

7. The difficulty with the NOICC is that it is far from clear what information contained in the applicant’s statement is said to be ‘incorrect’. Was the delegate questioning whether all or some of the incidents claimed to have happened actually took place? Was the delegate accepting the incidents but questioning whether the applicant had a subjective fear? The ‘incorrect information’ identified in the final paragraph of the NOICC is that the applicant feared harm from extremist groups in Iraq and could not return. The fact that the applicant had returned to Iraq and not been harmed was identified as information that ‘demonstrated’ there was non-compliance with s.101(b).

8. The NOICC recounts the questions and answers given by the applicant and then identifies the information provided by the applicant without specifying which part or parts were correct, other than in general terms. Simply including the information provided by a visa holder in a NOICC and asserting non-compliance does not, of itself, constitute ‘particulars’ of non-compliance in accordance with s.107(1)(a). There must be more, as observed by Lander J in Zhong v Minister of Immigration and Citizenship [2008] FCA 507 at [80]:

   In my opinion, this notice did not particularise the possible non-compliance. It was not sufficient to state that the appellant might have breached s 101 of the Act. More was necessary. If both paragraphs of s 101 were to be relied on, then the notice needed to give particulars of the facts and circumstances which gave rise to the possible breach of each of the paragraphs. It is not enough to generically claim that the visa holder has breached a section of the Act without giving particulars of the facts and circumstances which are said to give rise to the possible breach of the particular section.

9. It is not, however, necessary to provide particulars of the information relied on by the delegate as expressly required by s.119(1) of the Act, which is in different terms (refer Burton v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA1455). In some cases, it may be difficult to make a meaningful distinction between adequate particulars of breach and information that led the delegate to reach the required state of mind. Whether particulars of non-compliance are adequate will depend on the nature of the non-compliance and the terms of the notice.

10. In this case, the particulars of the non-compliance are those set out above, being the final four substantive paragraphs of the NOICC. These matters are how the delegate described the non-compliance. They are narrow, yet tolerably clear.

11. In cancellation cases under s.109 the delegate, and thereby the Tribunal, must consider any response to the NOICC and ‘decide whether there was non-compliance by the visa holder in the way described in the notice’ (s.108(b) of the Act).

12. The consideration of whether particulars provided in a notice under s.107 are adequate to satisfy paragraph (1)(a) cannot be separated from the task of the decision-maker under s.108(b) to decide whether there was ‘non-compliance in the way described in the notice’. This is clear from the authorities.

13. In SZEEM the delegate notified the applicant under s.107 that it had come to the attention of the Department that the visa holder, who claimed to be a refugee from Jordan, may not have complied with s.101 of the Act. The particulars provided were to the effect that the Department had received information the visa holder may have worked for the General Intelligence Directorate in Jordan and therefore his claimed fear of persecution from the Jordanian government may have been false. The notice also referred to the fact that the visa holder travelled back to Jordan on at least three occasions after his protection visa was granted. The visa was subsequently cancelled.

14. On review, the Tribunal explored numerous aspects of the original refugee claim. The visa holder appealed on the basis that the task of the Tribunal under s.108(b) was to consider whether there was non-compliance in the way described in the notice rather than make a decision ‘at large’ on whether there had been non-compliance with s.101 (at [26]).

15. The Court found, relying on Allsop J in Saleem v Migration Review Tribunal [2004] FCA 234, that the task required by s.108(b) necessarily referred back to the manner of non-compliance particularised in the s.107(1)(a) notice. In particular, Smith FM (as he was then) observed at [37] as follows:

    The scheme of decision making is that the decision-maker must address only the particulars of non-compliance which were formally notified to the applicant in the notice which initiated the cancellation action. The statutory context, in which the person may be deprived of permanent rights of residence and citizenship, explains the legislature’s concerns: (i) that proper notice must be given; (ii) that the notice must contain “particulars”; and (iii) that the power of decision should be defined by reference to a finding based on those particulars and no others.

    His Honour further opined at [38]:

    In relation to an allegation that a general statement was made falsely, the requirement of particulars must, in my opinion, also encompass particulars of the basis on which the falsity is alleged, these must be given with enough detail to allow this recipient a real opportunity to understand and attempt to answer the non-compliance allegation.

    And at [43]:

    I therefore consider the Tribunal would fail to exercise its jurisdiction if it decided that there was “non-compliance by the visa holder” by reason of the falsity of statements identified in the s 107 notice, where its conclusions as to falsity relied wholly or in part upon adverse findings concerning matters which had not been squarely raised by particulars provided in the notice. I consider in the present case that s 108(b) required the Tribunal, when deciding whether the applicant’s statements falsely claimed a fear of persecution if returned to Jordan, to confine the basis of its decision to the particular allegations which were raised in the s 107 notice as discussed above.

16. Given that the Tribunal did not so confine itself, the Court found that the Tribunal had proceeded on a significant error of law as to the effect of s.108(b) (refer at [49]). The error identified was that the Tribunal’s reasoning disclosed it proceeded on the basis of making adverse findings on matters that were not particularised or described in initiating notice. While the Tribunal had addressed the two particularised grounds for non-compliance alleged, they were not identified as the necessary foundation for the Tribunal’s conclusion.

17. In Saleem, Allsop J found that the Tribunal had purported to exercise a power which was not authorised under s.109 by asking itself the wrong questions under s.108(b). Asking whether the applicant had in fact breached s.101 was in error. Relevantly, His Honour noted, at [61], as follows:

    I do not think that the Tribunal appropriately directed itself to its task and has not answered the appropriate question to the extent it can be answered, dictated by the terms of the notice under s 107(1)(a).

18. These matters were considered by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Brar [2012] FCAFA 30. In that case, a notice was issued under s.107 which referred to non-compliance or possible non-compliance with ss.101(b) and 103 of the Act. The particulars provided stated that the respondent had lodged an application for a visa at an onshore processing centre. The central allegation was that the work reference attached to the application for the visa was fraudulently obtained and this was fully particularised in the letter. It was contended that the notice contained particulars of non-compliance which were materially false or misleading because the document was not given to an officer as defined by the legislation but was rather lodged online. It was asserted that if the notice under s.107 does not describe the non-compliance or if the Minister or delegate decides that there had been non-compliance in a way not described in the notice, then the Minister or the delegate would exceed the power given under ss.108 and 109 in cancelling a visa.

19. In considering the issues on appeal, the Full Court observed as follows at [56]:

    A notice under section 107 of the Act is not a criminal charge or a pleading in a civil action. The notice must contain, among other things, particulars of possible non-compliance then the decision-maker under s 108 must decide whether there has been non-compliance in the way described in the notice.

20. The Full Court further observed at [60] and [61] as follows:

    60.The Court in Minister for Immigration and Citizenship v SZIZO was dealing with different statutory provisions in the Act from those in issue in this case. Nevertheless, we think that a similar approach should be taken in the case of ss 107, 108 and 109 of the Act particularly as the phrase in s 107(1)(a) “particulars of the possible non-compliance” can only be given meaningful content by reference to the facts of a particular case.

    61.In our opinion, it was not Parliament’s intention that all departures from the statements made in a notice under s 107 deprive the decision-maker of jurisdiction under ss 108 and 109 to making findings of non-compliance by the visa holder in the way described in the notice. The phrase “in the way described in the notice” must be read in light of the purpose of the statutory scheme which is to ensure that the visa holder has notice of the alleged non-compliance and an opportunity to dispute the allegations and to respond to them. A departure which is minor and insignificant in the context of the facts of a particular case and which does not go to the substance of the allegations of non-compliance does not deprive the decision-maker of jurisdiction under ss 108 and 109. The departure in this case should be so characterised. The central issue in terms of the allegations of non-compliance was the accuracy or otherwise of the work reference letter from Dom’s and adequate particulars of the allegations with respect to that issue were given in the notice under s 107. Furthermore, the notice clearly referred to the date upon which the respondent lodged his application and the address to which it was sent (see [5] above). The respondent and his advisers would not have been under any misapprehension as to the occasion upon which it was said that he had failed to comply with s 103 of the Act. Finally, even if the bogus document was given, presented or provided to an authorised system, it seems clear enough that eventually it would have come to the attention of an officer of the Department.

21. Having regard to the above authorities, if particulars of non-compliance in a notice set out, with some specificity, the reasons why the information identified is said to be incorrect and therefore in non-compliance with s.101(b), this will be sufficient to satisfy s.107(1)(a). However, it is not enough to set out the information provided by the visa holder and thereby seek to incorporate them as particulars. The NOICC must identify the way in which this information is said to be incorrect. These are the particulars against which the decision-maker must assess s.108(b). The narrower the particulars which ‘describe’ the non-compliance, the more specific the enquiry under s.108(b) as to whether there has been non-compliance in the way described in the notice, although minor or insignificant departures would not invalidate the process.

22. In this case, the NOICC particularises the possible non-compliance as providing incorrect information that the applicant feared harm from extremist groups in Iraq and that he could not return, which was said to be demonstrated to be incorrect by the fact the applicant had returned twice ‘without incident’. As already noted, there are flaws in this reasoning but this does not make the NOICC invalid.

23. Accordingly, we are satisfied that the NOICC complies with s.107. It contains all of the matters required as set out in s.107 and includes particulars of the possible non-compliance that were sufficient for the applicant to know what case he was required to meet.

24. We therefore must consider whether there was non-compliance in the way described in the NOICC.

    WAS THERE NON-COMPLIANCE AS DESCRIBED IN THE S.107 NOTICE?

25. The applicant responded to the NOICC explaining the reasons for, and the circumstances around, his return. He also provided additional information and documents to substantiate the claims he made in 2011 and to establish that he still has fear of persecution in Iraq. Arguably, and for the reasons set out below, the applicant did not need to substantiate his original claims but understandably, given the importance of the issue; he sought to cover any potential issues.

26. The delegate considered those matters and nonetheless found that there had been non-compliance in the way described in the notice under s.108(b).

27. We have formed a different view and our reasons follow.

    Outline of submissions and evidence provided by the applicant

28. In his response to the NOICC, the applicant provided a number of documents, including the following:

    (1)A copy of an alleged threatening letter from ’The Public Relations Bureau of Alrashideen Army’, dated [in] 2011, along with its English translation. The threat identifies the applicant as one who works with the ‘forces of occupation’ and warns him to quit his job otherwise they will kill him and his family and burn his house;

    (2)An English translation of an Investigation Report from [Police Station 1] dated [in] 2011 of a complaint by the applicant that an unidentified terrorist group threatened him [in] 2011 through a written threat and on [later in] 2011 the same group set his house on fire;

    (3)An English translation of an Investigation Report dated [in] 2011 stating that the applicant attended the station [in] 2011 to testify against an unidentified terrorist group that threatened him on [in] 2011 through a written threat and that [later in] 2011 the same group set his house on fire;

    (4)An English translation of a Report from [Police Station 1] dated [in] 2011 of the applicant’s complaint [in] 2011 that an unidentified terrorist group attached an explosive device to his vehicle and detonated it. The report also notes that the applicant 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;

    (5)Copy of a letter from [Company 1] stating that the applicant began work with the company [in] March 2007 and has worked there continuously since that time. The letter states that the company agreed to give the applicant a paid vacation from [June] 2011 to [September] 2011 and to return to work at the end of the vacation. The letter is undated;

    (6)Documents relating to threats being made against the applicant’s brother in 2016; 

    (7)Psychologist reports dated [May] 2016 and [August] 2016 about the applicant’s mental state;

    (8)Translation of an extract of a medical report from Afghanistan dated [in] October 2013 claimed to be a report of the applicant’s mother’s admission to hospital [in] October 2013;

    (9)Photographs of the applicant and his wife at their wedding ceremony; photographs of the applicant with military personnel said to be taken at various locations in Baghdad when the applicant worked with [Company 1]; and photographs of what the applicant claims is his bombed vehicle and burnt down home.

1. These documents were also provided to the Tribunal.

2. The applicant attended the hearing and gave evidence on both occasions. The following is an outline of the key aspects of that evidence, together with a summary of the further documents and submissions provided by the applicant.

3. The applicant said that he travelled to Iraq in late 2013 to see his mother. She had a stroke and was very unwell. He believed she was going to die. He kept a low profile because he was concerned he could be harmed or killed. He claimed that while he was in Iraq he stayed with his mother in his brother’s apartment to look after his mother but attended family gatherings and small outings in their region because he believed these involved minimal risk. The applicant said that he did not go out alone and when he did he felt uncomfortable and scared. In support of this evidence, the applicant provided to the Tribunal a report from his mother’s doctor [in] July 2016 confirming that the applicant’s mother had an attack of hypertension leading to a stroke and that she had been admitted to hospital for two weeks commencing [in] October 2013 then a further 10 days [in] November 2013. The applicant also provided a translated version of an extract of a medical report confirming his mother’s hospital admission in 2013 from the Ministry for Health.

4. In relation to his second trip to Iraq, the applicant said he met his wife when he returned to Iraq on the first occasion. They continued to correspond and fell in love. They wanted to marry. He said that he was required to return to Iraq to marry her as it would have been against custom and tradition for his fiancé to meet him in a third country or for them to elope. He claims that his fiancé’s family insisted he return to Iraq to marry her or they would end the engagement. In his desperation he decided to return to Iraq for the marriage. The applicant claims that he was there about 80 days because they had arrange to have blood tests and renew their personal status cards. They were then required to wait further until [formalities of the marriage were finalised]. This was finalised [in] January 2016. He claims that they also applied for passports, which were received [in] 2016. The further necessary immigration requirements were completed [in] February 2016 and the applicant then was able to depart Iraq [later in] February 2016. The applicant claims that during the entire time he was in Iraq he maintained a low profile, stayed home and used the protection of his family members who were in positions of authority to watch over him.

5. The applicant denies that he did not fear harm from extremist groups when he made his claim for protection and relies on the events that he says took place in 2011 to demonstrate the basis for his fear.  The threats were said to be attributable to his work with [Company 1]. The applicant claims that he has been treated by a psychologist on more than one occasion and has been diagnosed with depression by his treating doctor. A letter from his doctor dated [in] December 2016 states that the applicant has been a regular patient since May 2012 and was diagnosed with depression and insomnia in September 2013. This is said to support his claims about the incidents in Iraq.

6. The applicant provided a number of other documents, including one purporting to be property certificates of land/property owned by his brother and other family members; a translated account of the applicant’s engagement and marriage; a letter from the applicant’s current employer; another letter from [a] Medical Centre and [an individual] stating that the applicant was under pressure from his family in relation to his travel to Iraq and documents relating to his own claims of intimidation and threats by an unnamed terrorist group which he provided in relation to his original protection visa claims.

7. The applicant gave evidence about the circumstances leading to his claim for protection. He said he proposed travelling to Australia to visit his sister and made an application in March 2011. After he made this application, the applicant says he was threatened by an extremist group and, following the burning of his rental property and the bombing of his car, decided to make a claim for protection once he arrived in Australia. The applicant gave evidence about the events described in the statement attached to his application for protection which was consistent with the contents of his statement.

8. The applicant also provided a statement from [a senior employee] of [Company 1], [Mr A], dated [in] August 2017 to the following effect:

   To whom it may concern

   I confirm that [the applicant] was employed with [Company 1] since 2007. He has resigned of his role as [Occupation 2] in on the mid of 2011 following the unfortunate incident of his car bombing at the company’s [office].

   I also confirm that his [house] was completely burned a few days after being threatened by a terrorist group.

   During his employment, [the applicant] has demonstrated excellent services. He is a reliable conscientious, hard-working individual who we have trusted and relied on.

9. This statement was attached to an email from the author of the letter, [Mr A], and the applicant provided the Tribunal with access to his email account, which showed the detail of the email exchange between the applicant and [Mr A].

10. The Tribunal sought confirmation of the statement directly from [Mr A] and [Company 1] and [Mr A] responded confirming that he had provided the statement [in] August 2017. Internet searches for [Company 1] disclose that it is [a company with operations in various countries]. It has been in operation since 2003. [Mr A] is recorded as [a senior employee] of the Iraqi office. The [Company 1] office in Baghdad is recorded on the website is being in [a location].

11. The applicant also claimed that his brother works in [a government agency] and that his brother is a [senior official] in [another section of the government]. The applicant claims that his brother was the subject of an attempt on his life in 2016 and he was forced to retire [from a government agency] after receiving threats. The applicant also referred to country reports from the Department of Foreign Affairs and Trade, which the applicant claims highlights the ongoing sectarian violence against Shi’as. The country information and the threats to the applicant’s brother are said to support the applicant’s claims that he cannot return to Baghdad or its surrounding areas other than for short periods and that Australia still owes the applicant protection. This submission was presumably directed to the exercise of discretion in the event the Tribunal found there were grounds to enliven the power of cancellation under s.109 of the Act.

    Consideration

12. Based on the evidence provided by the applicant, the Tribunal is satisfied that he returned to Iraq in late 2013 to visit his mother who was ill. The applicant has provided documents that are consistent with his evidence. The applicant stayed in Iraq for just over two months and the Tribunal accepts his evidence that he kept a low profile. There is no evidence to the contrary and his evidence is plausible and credible.

13. The Tribunal is also satisfied that the applicant returned to Iraq to marry his fiancé, who is now his wife. There is no evidence to the contrary and his evidence is plausible and credible and is supported by documentary evidence.

14. The fact that extremist groups did not harm the applicant on either occasion when he returned to Iraq does not evidence that the applicant lied about his fears of persecution or the incidents that he said happened when he made his application for protection. As already noted, the applicant was not working for [Company 1] when he returned and he returned to Iraq for specific purposes. His first return was approximately two years and nine months after he left Iraq and the employ of [Company 1]. He claims, and there is no evidence to the contrary, that he spent most of his time caring for his mother and at family functions. Presumably by the time the applicant returned to Iraq he did not have a current or sufficiently adverse public profile to attract attention in any event.   

15. The second visit was approximately four years and nine months after the applicant left Iraq. He claims, and again there is no evidence to the contrary, that he returned to marry his wife, their wedding was low-key and he did not stay any longer than he needed.

16. Given the length of time that had passed since the applicant left Iraq and the circumstances of his return, the fact the applicant returned on two occasions does not, of itself, ‘demonstrate’ (being the word used in the NOICC) that the applicant did not fear persecution from extremist groups at the time he lodged his application for protection. All this demonstrates is that by late 2013 and late 2015 the applicant was less concerned about his return. Relevantly, as noted by the applicant in his evidence, by the time of his return he was not working for [Company 1] and had not been working for the company for some time. Visiting Iraq for brief periods was different to living and working there from 2009 to 2011.

17. There are aspects of the applicant’s original claim that may be difficult to accept or, at the least, difficult to verify. However, the applicant’s claim for protection was accepted in 2012 by a delegate of the Minister and is not our task to revisit that assessment to determine whether it was right or wrong. Nor is it our task to undertake an enquiry ‘at large’ about whether the applicant’s statement, all or part of his statement, is incorrect. In this case given the particulars provided in the NOICC, the question that must be asked under s.108(b) is whether the statement made by the applicant that he feared harm from extremist groups and could not return to Iraq was incorrect having regard to his subsequent return to Iraq.

18. It is implicit in the applicant’s statement that he feared harm from extremist groups at the time he made his statement and that he believed he could not return to Iraq in the foreseeable future. His return to Iraq after two years and nine months and then later in late 2015 for limited purposes is not inconsistent with this statement.

19. Having regard to the authorities of SZEEM, Saleem and Brar, it is not the role of the Tribunal to assess whether there has been non-compliance by conducting a broad, ranging review of the applicant’s original claim. Nor is there any onus on the applicant to satisfy the Tribunal that the statements he made are correct or, alternatively, were not incorrect. We must consider whether there has been ‘non-compliance in the way described in the notice’ and must therefore confine ourselves to the particulars in the NOICC, albeit without taking a narrow technical approach; reading the NOICC in a ‘common sense way looking at the substance of the matter’.[2]

    [2] Refer Gido-Christian v Minister for Immigration [2007] FMCA 825 at [82] which is consistent with Brar at [61]

20. In determining whether there has been non-compliance in the way described in the NOICC, it is necessary to consider the particulars provided to assess whether they establish the relevant non-compliance identified, in this case, breach of s.101(b).To depart from the grounds described in the NOICC by undertaking a broad enquiry into the applicant’s original claims is not warranted or permissible given the nature of the NOICC and particulars provided. For instance, to undertake an enquiry into the question about whether the applicant’s life was threatened, his house burned down and his car bombed goes beyond the particulars of non-compliance provided in the NOICC. The particulars provided in the NOICC were to the effect that the information in the applicant’s statement that he feared harm from extremist groups was incorrect because the applicant later returned to Iraq. For the reasons already outlined, the details of the applicant’s original claims and his statement are not ‘particulars’ for the purpose of assessing adequacy under s.107(1)(a) or for the purpose of assessing whether there has been non-compliance in the way described in the notice under s.108(b). The NOICC does not question whether any or all of the events happened, nor is there any challenge to assertions made by the applicant about his work or the nature of the risk that may have arisen at that time.

21. If the applicant had returned shortly after his application for protection was granted for an extended period and for frequent visits, these circumstances may properly raise an enquiry about whether the applicant in fact had a subjective fear of persecution and whether, given the proximity and frequency of any return, the fear was well-founded. In exploring the evidence and explanation for why the visa holder returned in such circumstances, it may be appropriate to consider the veracity of the original claims made, particularly where the visa holder does not provide a plausible or credible explanation for the return. This is not the case in the review that is before us.

22. Notwithstanding this and for completeness, we find that the applicant’s evidence about the circumstances leading to his application for protection is consistent with the statement made in his application. Relevantly, there is some documentary evidence which appears to corroborate his claims, namely the police reports and the statement from [Mr A]. We cannot establish the veracity of the police reports or the contents of the statement of [Mr A], but nor do we need to do so.

23. As noted in SZEEM, Saleem and Brar, to make findings on matters that have not been squarely raised in the notice under s.107 as the basis for a finding of non-compliance would be an impermissible departure from the statutory scheme for cancellation under s.109. We have therefore confined our consideration to the particulars provided in the NOICC.

24. Having regard to the evidence provided by the applicant and the particulars provided, we are not satisfied that there has been non-compliance in the way described in the NOICC issued [in] July 2016.

25. 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

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

    Jan Redfern
    Deputy President

    
    

    Ann Brandon-Baker
    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.

    Section 108 Decision about non-compliance

    The Minister is to:
    (a)  consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
    (b)  decide whether there was non-compliance by the visa holder in the way described in the notice.

    Section 109 Cancellation of visa if information incorrect

    (1)  The Minister, after:

    (a) deciding under section 108 that there was non-compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

    (c)     having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.