1706997 (Refugee)

[2017] AATA 1683

1706997 (Refugee) [2017] AATA 1683 (28 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706997

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Shahyar Roushan

DATE:28 September 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 28 September 2017 at 5:38pm

CATCHWORDS

Refugee – Cancellation – Protection visa – Iraq – Irregular maritime arrival – Religion – Sunni Muslim – Race – Bidoun – Victim of physical abuse from Shi’a militia

LEGISLATION

Migration Act 1958, ss 5, 97, 98, 99, 100, 101, 107, 109, 116, 119, 375A

Administrative Appeals Tribunal Act 1975, s 33

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336
McDonald v D-G of Social Security (1984) 1 FCR 354
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Sullivan v CASA (2014) 226 FCR 555
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
Zhao v MIMA [2000] FCA 1235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

   Background and Evidence

2. The applicant arrived in Australia [in] September 2010 as an Irregular Maritime Arrival (IMA). [In] September 2010, he requested a Refugee Status Assessment (RSA).

   The Information

3. In a statement attached to the request, dated [in] October 2010, the applicant stated the following:

   1.I am [an age] year old Arab born in Al Nassaria, Iraq. I am Sunni Muslim. I make this Statutory Declaration in support of the assessment of my claims to be a refugee under the Refugees Convention. Below I set out my fears of being persecuted if I am forced to return to Iraq.

   2.My parent moved from Al Nassaria to Basra, Iraq in 1997 with my [siblings]. My father bought a [vehicle] in 1997 and worked as [an occupation] until 2007. He also sold [goods] between 1997 to 2007.

   3.Due to conflict between Shi'a and Sunni Muslim in 2006 we had to lie our neighbours that we were Shi' a instead of Sunni so we wouldn't face any danger. Basra has high Shi' a population and they do not like Sunni living in their town.

   4.In late 2007, my father sold his [vehicle] because my father was suffering from [medical conditions]. As a result, he became unfit to work due to his health condition. Around two months later, my father bought a car for personal use.

   5.As I am the [son], the responsibility to support my family then fell to me. I felt obligated to find a job to support my family. I desperately started looking for a job. One of my dad's friend's [owned] an [factory] and [he] agreed to employ me. I was appointed [to work] in the [factory] at night. I used to work from seven in the evening to seven in the morning. Then in the morning I used to go to [college] to study [a course] and in afternoon I used to play [a sport] professionally for the team.

   6.It was hard working [at] night because different armed religious militia men were always driving past by the company, I feared going to work everyday, but I had no choice.

   7.In October 2009, I went to the [mosque] for my prayers. This is a Sunni Mosque. I finish my prayers and was leaving the mosque when one of the men from my local neighbourhood, [Mr A], saw me. [Mr A] is a member of the Mahdi Army. We have met before socially. He knows my name and where I live.

   8.When I was 100 meters away from the Mosque, I realize someone was calling me from behind. 1 turned around and look, I saw [Mr A]. He asked me why I had lied to him and told them he was Shia. I denied that I was Sunni and told him I am Shi' a. I told him I just went inside the Sunni Mosque to wash my hand. Then [Mr A] left and I also went back home.

   9.[In] October 2009, I had day off from work. It was a Thursday night. That evening, between nine or ten o’clock, I went out walking to buy grocery in the [market]. On my way to market, all the sudden a ute stopped next to me. I saw [men] in balaclavas inside their ute and as it stopped, two of them got out and approached me. One hit me with the back of his rifle on [my] chest. Then they grabbed me and put me in the back of the ute. Some people on the road recognized me and tried to help me. But those men in balaclava fire gunshots into the air to warn away the people that were trying to help me. Then they drove off, taking me with them.

   10.While I was in the ute, I was wiped and bashed. I injured [a part of my body] from their bashing. [That part of my body] is swollen today from the beatings they inflicted on me. They threatened if I shouted out or said anything at all, I would be killed. I was blindfolded and my hands and legs were tied up while we were in the car.

   11.I was taken and locked up in the room. For the first couple of days, I was tortured again. They burned [me] with the cigarette butts, I was kicked, punched and whipped with a plastic pipe.

   12.The first night, they demanded my father's phone number while they were torturing me. I told them it was in my mobile phone. They searched and took my mobile phone. They instructed me to locate my father's phone number in my phone. I could not move because my hands and legs were tied up so they found my father's phone number and then left the room. Soon after they came back and told me to speak to my father. They instructed me to tell my father I was alive. So I told my dad I am alive on the phone.

   13.I was locked up in the room for eleven days. They provided two meals a day.

   14.After the eleventh days of my captivity, I was again beaten by [armed] men in balaclavas in the room. Then they blindfold me and took me outside the room. They pushed me into the car. I realized I was in the back seat of the car and there were [men] next to me on both sides. I was really scared and I thought they were going to kill me.

   15.They drove and I did not know where they were taking me. All the sudden, I was dragged by one their man out of the car. He told me not to make any sudden movements. Then all of a sudden, I heard gun shots and the car drove off. I was surprised when I realize no one was holding me. I quickly took off my blindfold and found myself lying on top of piled of rubbish.

   16.My body and face was bruised and I barely could stand up. A car stopped next to me that was passing through and the man from the car tried to help me. He said "God punish these people who has done this to you". Then he offered to take me to the hospital, but I replied "no take me to my home". I told him where I lived. Then he drove me home and my family organised medical treatment. I was treated at home by the neighbourhood doctor.

   17.The next day my father told me what had happened when I gone missing. When he went to the market people in the market told him they witnessed me been abducted by some members of a militia group. My father also told me he became very worried about me and went to the police station to report my missing. The Police investigated my kidnapping and went to speak to the peoples who witnessed my kidnapping. They confirmed what they had told my father but after this, the police told my father that that could not do anything.

   18.The day after my kidnapping, my father told me he received a call from an unknown number and the caller confirmed my kidnapping and demanded US $[amount] ransom for my exchange. My father told the caller that we did not have that type of money. My father went to well known [Leader A] in Basra and told him about the situation. He agreed to help my father. Then [Leader A] began looking into what had happened to me and I think my father told me that [Leader A] made contact with my kidnapper. Then they negotiated and agreed ransom amount of US $[amount]. From this time onwards, the kidnappers only contacted [Leader A].

   19.My father sold his car and borrowed some money off my uncle to pay the ransom. It was agree that the money be paid by my family to [Leader A] instead of directly to the kidnappers. My father followed his instructions and finally after day eleven I was released.

   20.After ten days of treatment, I felt little bit better. However, my family were very worried about my safety. Then suggest me to move away from home and go somewhere else to live to avoid any further incidents.

   21.I feared my life and I knew if I was kidnapped again, this time they would kill me. I had no protection from the police or any security agencies as these militia groups are very powerful. They are armed and capable of harming me without being punished by the law.

   22.I decided to flee from home. My father suggested I should go to my uncle in Al Nassaria which is three hours drive from Basra. I lived with my uncle for almost one month till December 2009. I wanted to flee to the north of Iraq where I could be safe in presence of other Sunni. My uncle was living in [Biji]. I thought I would be safer. So I applied for migration card as it is the legal procedure to move from one city to another in Iraq.

   23.I obtained migration card in December 2009 and moved to [Biji]. I lived with my uncle for seven months. Due to my migration card showing that I was from the south, I was hassled by the Iraqi and American authorises (sic) at the check point. Due to this harassment, I was very disappointed and did not feel that I could live there safely. My uncle suggested I should move somewhere else to for my safety. I consulted my father about my situation in Biji and he advised me that he will look for solution as it did not appear possible that I could live safely anywhere in Iraq.

   24.My father then found someone who could help me flee to Australia. My father contacted [a man] to arrange my travel to Australia. My father asked me to return to Basra so that I could collect my ticket and depart from Basra airport to [Country 1]. From [Country 1] I travelled to [Country 2] and from [Country 2] I travelled to Australia.

   25.My fear of returning back to Iraq is genuine. I have suffered torture just because I am Sunni. I have no protection from the police. I cannot even practice my religion freely by living in Iraq. If I would be returned to Iraq I will be kidnapped and killed.

   26.In light above, I believe I am refugee and I request Australian government to protect me.

   (sic)

4. [In] December 2010, a delegate found that the applicant was not a person to whom Australia owed protection obligations.

5. [In] January 2010, the applicant applied for an Independent Merits Review (IMR) of the RSA. In connection with that application, he provided further information and attended an interview [in] September 2011. The information provided to the IMR essentially stated that the applicant was born in Kuwait and moved to Iraq in 1991, when he was [age] years old. As Bidouns he and his family faced discrimination in Iraq, including verbal abuse. The applicant also claimed that his father was a senior member of the Ba’ath party in the Basra area. Membership of the Ba’ath party offered the applicant’s father and his family support and protection. After the fall of Saddam Hussein, membership of the party and the family’s ethnicity presented as problems. The applicant was not a member of the Ba’ath party, but he was presumed to be a supporter on account of his father's involvement in the party.

6. [In] November 2011, the reviewer found that the applicant was a person to whom Australia owed protection obligations. 

7. [In] August 2012, the applicant applied for a Protection (Class XA) visa. In his Form 866C, in reply to questions 42-48, in relation to his reasons for claiming protection, the applicant responded as follows (in italics):

   Question 42: I am seeking protection in Australia so that I do not have to go back to Iraq.
   Question 43: Why did you leave that country? See my file CID: [number].
   Question 44: Have you experienced harm in that country? Yes
   Give details:
   See my file CID: [number].
   Question 45: What do you fear may happen to you if you go back to that country? See my file CID: [number].
   Question 46: Who do you think may harm/mistreat you if you go back?' See my file CID: [number].
   Question 47: Why do you think this will happen to you if you go back? See my file CID: [number].
   Question 48: Do you think the authorities of that country can and will protect you if you go back? No
   Why not?
   See my file CID: [number].

   The Notice

8. [In] December 2016, in accordance with s.107 of the Act, the applicant was issued with a Notification of Intention to Consider Cancellation under Section 109 (NOICC). The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act.

9. The NOICC set out the applicant’s statement [in] October 2010 and reproduced his responses to questions 42-48 of his Form 886C. The NOICC stated:

   I consider your Statutory Declaration dated [in] October 2010, together with information provided by you for consideration by the IMR, to provide the relevant answers to Questions 42, 43, 44, 45, 46, 47 and 48 of Form 866C. The content of your Statutory Declaration dated [in] October 2010 is provided below, and the relevant information provided by you in support of the IMR is also detailed.

   If you do not agree that your Statutory Declaration dated [in] October 2010, and the specified information provided in support of the IMR, provides the relevant answers to Questions 42, 43, 44, 45, 46, 47 and 48 of Form 866C, please advise why, and state what you believe provides the correct answers to those questions…

   Since the grant of your class XA subclass 866 Protection visa, the following adverse information has come to the attention of the Department:

   You departed Australia [in] September 2013. You declared on your outgoing Passenger card that you would spend most of your time abroad in Iraq. You returned to Australia [in] December 2013 and declared on your incoming Passenger card that you spent most of your time in Iraq. Upon your arrival to [City 1] airport [in] December 2013 you advised an officer of the Department that you had been to Iraq to visit your father who was unwell, that it was relatively safe in Basra and that you did not feel threatened there. You presented your Iraqi passport [no.] which you used to enter and exit Iraq, containing an entry stamp to Iraq dated [in] September 2013 and an exit stamp from Iraq dated [in] December 2013. It appears on the basis of this information that you returned to Iraq for a period of approximately three (3) months and that while you were there you visited your father in Basra.

   You departed Australia [in] December 2014. You declared on your outgoing Passenger card that you would spend most of your time abroad in Iraq, and upon your departure you advised an officer of the Department at [City 2] airport that you would use your Iraqi passport to enter Iraq. You returned to Australia [in] February 2015 and declared on your incoming Passenger card that you spent most of your time in Iraq. Upon your arrival to [City 2] airport [in] February 2015 you advised an officer of the Department that you had been to Iraq to visit your wife and child. You presented your Iraqi passport [no.] which you used to enter and exit Iraq, containing an entry stamp to Iraq dated [in] December 2014 and an exit stamp from Iraq dated [in] February 2015. It appears on the basis of this information that you returned to Iraq for a period of approximately three (3) months and that while you were there you visited your wife and child.

   Departmental records confirm that you lodged an application [in] February 2014 to sponsor your wife [Ms A] for a [Partner] visa. This application remains pending. As part of your wife's application you lodged Form 40SP 'Sponsorship for a partner to migrate to Australia', signed by you [in] January 2014. At Question 20,'Fiancé(e) or partner 's residential address" you answered that your wife resides at '[address], BASRA, IRAQ'. At Question 21, 'What is your current relationship status with the visa applicant? ' you answered that you and your wife were 'Married' on '[date]-Oct-2013' in 'BASRA IRAQ'. Further, in support of your application you provided a letter written and signed by your wife [in] December 2013, together with its translation. Your wife wrote, in part: 'I live now with [applicant’s] parents home in Basra'.

   No further notification has been received of any change of address for your wife in Iraq since the lodgment of the above visa application.

   On the basis of the above information, namely, that your wife resides in Basra, and you married there [in] October 2013, it further appears that when you returned to Iraq for the periods  [September] 2013 to  [December] 2013, and  [December] 2014 to  [February] 2015, you returned to Basra, Iraq.

   You claimed in your class XA subclass 866 Protection visa application that you could not return to Iraq, as you feared you would be kidnapped and killed by militia groups on account of your Sunni religion and being a Bidoun, and due to your perceived support of the Ba'ath party. You claimed in your application that you could not freely practice your religion in Iraq, and that the authorities could not and would not protect you.

   It appears, however, that since the grant of your class XA subclass 866 Protection visa application [in] August 2012, you have twice voluntarily returned to Iraq, for a total period of six (6) months. Further, it appears that you have returned to Basra, to the area in Iraq you claimed to have fled and to have been easily recognisable on account of your sporting profile. You indicated upon returning to Australia from Iraq that you went on both occasions to visit family. You did not indicate that you experienced harm when you returned to Iraq, and when you returned to Australia [in] December 2013 you stated that it was relatively safe for you in Basra, and that you did not feel threatened there.

   On the basis of all of the above information, it appears that at the time of your application for a class XA subclass 866 Protection visa you did not hold the adverse profile of risk you claimed to hold in Iraq on account of your religion and being a Bidoun, and perceived Ba'ath Party supporter. It therefore appears that you provided incorrect information on your application for a class XA subclass 866 Protection visa… As it appears that you have failed to comply with the requirements of section 101(b) of the Migration Act, your class XA subclass 866 Protection visa is liable for cancellation under section 109 of the Migration Act.

   The Applicant’s Response

10. In response to the NOICC, the applicant’s representative provided a submission, dated [in] January 2017, essentially asserting that the applicant had provided correct information to the Department.

11. In a statutory declaration, dated [in] January 2017, the applicant also asserted that he had provided correct answers to questions in Form 866 and that, during his two trips to Iraq, he had stayed away from Basra. The applicant stated that, in August 2013, he received a call from his brother informing him that his father has had a [medical condition] and that ‘he won’t make it this time’. Before travelling to Iraq, the applicant went to the Department’s office in [Suburb 1]. As he has limited English language skills, he asked his [friend] to accompany him. After explaining his circumstances, a departmental officer informed him that his travel to Iraq will not affect his status and his visa will not be cancelled.

1. The applicant stated that he travelled to Iraq [in] September 2013, returning [in] December 2013. He arrived at Basra airport. He was careful not to be seen or noticed by other people at the airport. His father had already been discharged from hospital. His father had also arranged for him to stay with his aunt in Zubair Shire. His aunt is married to the uncle of his current wife, [Ms A]. Within a short period, his relationship with [Ms A] developed and they were married [in] September 2013. They officially registered their marriage in Zubair [in] October 2013. Following their marriage, they moved into a house in Zubair, where the applicant remained until his departure from Iraq [in] December 2013. During his stay, the applicant and his wife also travelled to Al Nassaria, Baghdad and Erbil. The applicant’s father and other family members visited the applicant in Zubair.

2. The applicant stated that, after he returned to Australia, [Ms A] started living with his parents in Basra. However, after ‘a small period’ she returned to Al Nassaria to live with her own parents. This is the reason why in his application to sponsor his wife he provided his parent’s home address as his wife’s residential address. In addition, it was ‘the most accessible address’ for him and his wife.

3. The applicant stated that, upon arriving at [City 1] airport in December 2013 and being interviewed, he did not recall informing the interviewing officer that Basra is relatively safe and that he did not feel threatened there. He has ‘very little grasp of English’ and ‘this statement is too complicated for [him] to even express in English’ without an interpreter.

4. The applicant stated that he again travelled to Iraq from [December] 2014 to [February] 2015.  The only time he spent in Basra was upon his arrival and departure. He spent his time with his wife and child in Al Nassaria. He was picked up from Basra airport by his [brother-in-law]. He spent his time in Iraq at his brother-in-law’s house, where he was visited by his family, including his wife and son. His brother-in-law became concerned for the applicant’s safety after his neighbours began asking about ‘the stranger living in his house’. The applicant then contacted his travel agent in Australia and changed his return date to an earlier date. Following his return to Australia in February 2015, he did not travel back to Iraq due to lack of safety. Both his brother-in-law and his wife told him not to return because people were asking about him.

5. The applicant further stated that he is the main carer for his ill mother. His entire immediate family are currently in Australia and separating him from his family would be detrimental to all. His [brother] is [age] years old and he looks up to him as a father figure. His brother is both attached to and dependant on the applicant.

6. The following documents were provided with the submission:

   ·Copy and translation of the applicant’s certificate of birth;

   ·Copy of the applicant’s Iraqi passport;

   ·Copies of the applicant’s 2012 and 2014 Australian Titre de Voyage ;

   ·Copy and translation of a Patient Attendant Form, issued by the  [Hospital], stating that [the applicant’s father] was hospitalised due to a ‘[medical condition]’ for a period of 15 days from  [August] 2013;

   ·A medical certificate, issued by [a doctor] in relation to the applicant’s father;

   ·Copy and translation of a letter from the mayor and ‘aldermen’ of Hay Al Akri, dated [in] 2017, stating that [Ms A] resides in Hay Al Akri;

   ·Copy and translation of the ‘marriage contract’ between the applicant and [Ms A]

   ·Copy and translation of results of medical tests required for prospective marriage [applicants]

   ·Internet printouts relating to the distance between Basra International Airport and Zubair (18.32 km) and Basra and Al Nassariah (161.5 km);

   ·A document outlining the applicant’s ‘carer duties towards [his] ill mother’;

   ·A statutory declaration, signed by [his friend] [in] January 2017, stating that, in August 2013, he had accompanied the applicant to the Department’s offices in [Suburb 1] where the applicant was informed that his travel to Iraq would not affect his visa or immigration status;

   ·Printouts of photographs of the applicant and his wife on his mobile phone, identifying the locations of the photographs as Al Nassaria and Erbil

   ITOA

7. [In] February 2017, the Department conducted an International Treaties Obligations Assessment (ITOA) in relation to the applicant and found that Australia does not owe him non-refoulement obligations.

   The Delegate’s Decision

8. [In] March 2017, a delegate of the Minister, after considering the prescribed circumstances, decided to cancel the applicant’s visa. The delegate found that the applicant had provided incorrect information ‘as is evidenced by his voluntary return to travel to Iraq without any issues’.  

   Application for Review

9. The applicant applied for a review of the delegate’s decision. He was represented in relation to the review by his registered migration agent.

10. On 10 July 2017, the applicant’s representative provided a further submission in support of the application for review. The submission, essentially, provided a ‘summary of events’ and reiterated the applicant’s explanations for returning to Iraq on two occasions. The submission referred to a decision of this Tribunal, differently constituted, involving a similar factual scenario. In that case, the Tribunal decided that the applicant’s voluntary return to his country of nationality itself is not evidence of factual incorrectness underpinning the asserted fear in the application for a protection visa.

    The Hearing

11. The applicant appeared before the Tribunal on 12 July 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [two named witnesses] and the applicant’s [age] year old [brother]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The representative attended the Tribunal hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The Certificate

12. The Department’s file relating to the cancellation of the applicant’s protection [visa]   contained a s.375A certificate in respect to two folios. The certificate prevented the disclosure (except to the Tribunal) of anything contained in the relevant folios for the reason that they contained information about third parties other than the applicant. The Tribunal formed the view that the reason provided sufficient basis for public interest immunity and that the certificate was valid. The Tribunal explained to the applicant at the hearing that it considered the certificate to be valid. The Tribunal also explained to the applicant that the particulars of the information covered by the certificate were in relation to third parties and that, in the Tribunal's view, were not relevant to the issues under consideration in the matter under review. The applicant did not specifically comment on this issue and the Tribunal has placed no weight on the information covered by the certificate.

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

13. 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.

14. 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.

15. Having regard to the terms of the NOICC and the information referred to in the notice, 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. The Tribunal is also satisfied that the nature of the non-compliance was sufficiently particularised for the applicant to respond to it.

16. 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) referred to in the s.107 notice as set out in the NOICC.

17. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[1] Whilst a visa holder, whose visa is being considered for cancellation, must be invited to show that the ground for cancellation does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA, the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[2]

    [1] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.

    [2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

18. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.

19. In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences to a party, the Tribunal is free to consider the evidence and other materials before it.[3] In that case, Flick and Perry JJ said that:

    The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[4]

    [3] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

    [4] At [120]

20. The Tribunal is not bound to apply the principle in Briginshaw v Briginshaw that the strength of evidence necessary to make a finding may be greater if the consequences of that finding are serious, but it is not prohibited from applying it if it sees fit. [5] The Court noted that s.33(1)(c) of the Administrative Appeals Tribunal Act 1975, which provided that the Tribunal is not ‘bound’ to apply rules of evidence, was not a prohibition upon the tribunal applying those rules. It said that imposing a requirement for the Tribunal to apply the rule in Briginshaw in making its factual findings, would be an unnecessary constraint upon the freedom of the tribunal to employ such procedures at it sees fit in undertaking its fact-finding role.[6]

    [5] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [121], referring to Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362, ‘… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…’.

    [6] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [122].

21. As the contents of the NOICC, set out above, demonstrate, the delegate considered the applicant’s statutory declaration [in] October 2010 and the information provided by him to the IMR to provide the relevant answers to Questions 42, 43, 44, 45, 46, 47 and 48 of Form 866C. The delegate then referred to the applicant’s trips to Iraq [in] September 2013 and [in] December 2014. The delegate also referred to information provided in an application lodged by the applicant to sponsor his wife for a partner visa to conclude that the applicant had resided in Basra during his return trips to Iraq.

22. The delegate stated that the applicant’s return to Iraq for a period of three months on each occasion indicated that the applicant did not hold the adverse profile of risk he claimed to hold in Iraq on account of his religion, being a Bidoun, and his perceived support for the Ba'ath Party. The delegate’s conclusion that the applicant had provided incorrect answers in Form 866 and incorrect information on his statutory declaration [in] October 2010 essentially, if not solely, based on the applicant’s return to Iraq on two separate occasions and remaining in that country for three months on each occasion. Whilst the delegate identified specific answers provided by the applicant in Form 866, the Tribunal has found no evidence to establish that the applicant’s answers were in fact incorrect and that he had deliberately lied by claiming that he feared being kidnapped and killed by Shi'a militias.

23. The Tribunal appreciates that, broadly, an applicant’s act of returning to the country where they claim to fear being persecuted may raise questions in relation to his or her subjective fear of harm and the credibility their claims for protection. However, the mere fact of return is not necessarily inconsistent with the claimed fear. The individual circumstances of the case and the precise claims which were made must be carefully examined. 

24. The present case is not a case where a person’s return to the country of feared persecution, in itself, seriously undermines the claims made in the application for a protection visa.  For example, the applicant did not claim to be stateless only to obtain a passport from the authorities in the country of feared persecution and return to the country using that passport.  The applicant did not claim that he feared the authorities in Iraq or that he would be arrested if he returned to that country. The applicant claimed that he had been kidnapped and tortured by a Shi'a militia, that he feared experiencing similar harm and that the authorities could not protect him from his persecutors.

25. The applicant has given consistent evidence throughout the process in relation to his claims fort protection. The applicant and his family resided in a Shi'a neighbourhood. Due to ongoing sectarian conflict and in order to avoid harm, they had to lie to their neighbours and pretend to be Shi'a instead of Sunni. The applicant was seen by a Shi’a neighbour leaving a Sunni mosque. He was subsequently kidnapped and tortured. He was released after a local Shi'a’ sheikh intervened. This incident prompted his decision to depart Iraq. Having carefully considered the applicant’s evidence, including the documentary evidence submitted, the Tribunal accepts that the applicant’s father was seriously ill in August 2013 and that the applicant genuinely believed that his father’s death was imminent. The Tribunal also accepts that, following the birth of his [child], he had felt compelled to see her. The applicant told the Tribunal at the hearing that, as a boat arrival, his application to sponsor his family would have been given the lowest processing priority and he would not have been able to see his child for many years. The Tribunal accepts that, during his first trip, the applicant had stayed with his aunt in Zubair, as well as travelling to Al Nassaria, Baghdad and Erbil. The Tribunal accepts that, during his second trip, the applicant had stayed at his brother-in-law’s house in Al Nassaria, where he was able to see his wife and daughter. The Tribunal accepts that the applicant had decided to return to Australia earlier than scheduled after his brother-in-law became concerned for his safety when neighbours began asking questions.

26. The Tribunal accepts that by travelling to Iraq the applicant took a calculated risk. The Tribunal accepts that the applicant’s desire to see his seriously ill father in 2013 and to see his new born daughter in 2014 outweighed his fears arising from the security situation in Iraq. 

27. Having regard to all of the evidence before it, the Tribunal does not accept that the applicant’s return to Iraq for three months from [September] 2013 to [December] 2013 and for a further three months from [December] 2014 to [February] 2015 is inconsistent with the claims which he made in his application for a protection visa and the accompanying statutory declaration. The Tribunal does not accept that travelling to Iraq on two separate occasions is a persuasive reason to find that the information the applicant provided in his application for a protection visa and his statutory declaration [in] October 2010, as well as the information provided to the IMR, were incorrect. The Tribunal has not reached a real state of satisfaction that non-compliance has been established.

28. For these reasons, the Tribunal does not accept that the applicant gave incorrect answers in his application for a protection visa. 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.

29. 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

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

    Shahyar Roushan
    Senior Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)     was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)     stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)     informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)     requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)     visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.