1707874 (Migration)

[2019] AATA 2783

1707874 (Migration) [2019] AATA 2783 (19 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707874

MEMBER:Alison Murphy

DATE:19 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 19 March 2019 at 8:41am

CATCHWORDS
MIGRATION – cancellation – subclass 155 (Five Year Resident Return) visa – applicant provided incorrect answers about country of citizenship– protection claims appeared inconsistent with his return to Iraq – mother’s serious illness – medical evidence provided –decision under review set aside

LEGISLATION
Evidence Act 1995 (Cth)
Migration Act 1958, ss 101, 102, 103, 104, 105, 107, 109,375A
Migration Regulations 1994, r 2.12

CASES
Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667
MZAFZ v MIBP [2016] FCA 1081
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
Sankey v Whitlam (1978) 142 CLR 1
SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27
Zhao v Minister for Multicultural Affairs [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 155 (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant breached s.101 of the Act by providing incorrect answers about his country of citizenship in his visa application. 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 13 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

6. The applicant is [an age] male from Karbala, Iraq. He is married with three children. He arrived in Australia by boat [in] December 2009 and lodged an application for a protection visa shortly afterwards. In that application he identified himself as a citizen of Iraq who had fled Iraq fearing harm from the Mahdi Army whom he claimed had attempted to extort him before murdering his brother and later shooting [him].

7. The applicant provided a written statement with his protection visa application and was further interviewed about his claims on 10 January 2010, 29 January 2010 and 28 June 2010. In those interviews and statements he stated that he was the son of a prominent [specified] party member, who had a liberal lifestyle and outlook. After the fall of Saddam Hussein there was a lot of work rebuilding Karbala and he [worked]. Business was booming and he opened [a]shop in Karbala which was managed by his brother [Mr A].

8. In 2003/2004 extremist Shia groups including the Mahdi Army began pressuring people in Karbala to adopt a more fundamentalist way of life. Music was banned, first in coffee shops and later even at weddings, and business people were extorted, threatened and killed.

9. On 12 October 2007 his brother received a telephone call at the shop from a person identifying himself as a member the Mahdi Army, demanding a payment of US$50,000 to fund their fight against the US occupiers. The person warned him that if the family did not pay the money, [Mr A] and the applicant would both be killed. [Mr A] thought it to be a prank call and refused to pay the money. On 18 October 2007 members of the Mahdi Army came to the house, shooting [Mr A] and blowing up his car.

10. The applicant immediately took his family to live with relatives in another part of Karbala. The business was still running and further threats were received at the shop. The applicant began liquidating his business and closing down his shop. A week after his brother’s funeral he got out of his car when he heard someone call his name. He turned and saw a Mahdi Army man, dressed in black, who said “Still [alive]?” before opening fire and running off. The applicant was shot [and] helped into the shop by his staff. After receiving medical treatment from [a] doctor in Karbala, the applicant fled to Baghdad where his wife had relatives and the security situation was better. Over time he became involved with a business there with a relative of his wife.

11. In 2009, the Sadrists won four seats in Karbala and the Mahdi Army and its political wing had opened district and local offices across Shia areas in Iraq, including Sadr City in Baghdad. Militia groups infiltrated the police, armed forces and many parts of the Iraqi bureaucracy.

12. He and his family had to register with the local authorities to get ration cards but claimed to have come from [another city], not Karbala, so they would not be found. However during the registration process they were discovered to have come from Karbala and the mayor of the district accused him of misleading the authorities. Not long afterwards, the applicant was seen at [a venue] by someone associated with the Mahdi Army in Karbala. This was followed with a demand he pay the money demanded earlier or support the Sadrists in other ways.

13. An Independent Merits Reviewer (IMR) interviewed the applicant, assessed his claims and found him to meet the definition of a refugee on 20 July 2010. On the basis of information provided in his protection visa application and interviews, the applicant was granted a Class XA Subclass 866 Protection visa on 9 September 2010.  On 21 July 2016 the applicant was granted a Class BB Subclass 155 (Resident Return) visa.

14. On 31 January 2017 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation (NOICC), advising him that the Department of Immigration and Border Protection was considering cancelling his resident return visa on the ground that it considered the applicant had provided incorrect information in his protection visa application about his adverse profile and his fear of harm in Iraq. 

15. The applicant responded to the NOICC on 17 and 20 February 2017. In those responses he agreed he had returned to Iraq during each of the periods identified by the delegate, but denied giving incorrect information in his visa application or interviews.

16. On 31 March 2017, the delegate made a decision to cancel the applicant’s resident return visa.

    LEGISLATIVE FRAMEWORK

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. Relevant to this case, these include the ground set out in s.101(b), which requires a non-citizen to complete a visa application in such a way that no incorrect answers are given or provided.

18. Section 107A provides that a visa holder’s failure to comply with the obligations contained in ss.101, 102, 103, 104, 105 or 107(2) of the Act include non-compliances that occurred at any time, including in respect of any previous visa held by the person. The effect is that the visa holder’s failure to provide correct information in respect of an earlier visa may be grounds for the cancellation of a later visa.

    THE REVIEW APPLICATION AND PROCEDURAL ISSUES

19. An application for review of the delegate’s decision was lodged with this Tribunal on 11 April 2017 by the applicant’s migration agent.

20. The Tribunal was provided with the departmental file relating to the cancellation which included the NOICC, submissions and documents provided to the delegate in response to the NOICC and the decision of the delegate. Files relating to the applicant’s protection visa application were also provided to the Tribunal.

21. Section 375A applies to decisions under Part 5 of the Act and provides that where the Minister has certified in writing that disclosure of a document or information would be contrary to the public interest, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.  However the operation of s.375A is dependent upon the existence of a valid certificate by the Minister or his delegate.

22. In this case the cancellation file included documents subject to a non-disclosure certificate pursuant to s.375A of the Act dated 21 April 2017. That certificate states the disclosure of this information would be contrary to the public interest because of “DIBP internal processes”. No further detail or comment appears on the certificate.

23. At the hearing on 13 March 2019, the applicant was provided with a copy of the certificate and invited to make comments on its validity. I advised the applicant that the documents covered by the certificate comprised in broad terms internal departmental documents about his visa cancellation, passenger cards, ticket stubs, a copy of his Australian Titre de Voyage, the records of his entry interview, internal correspondence between departmental officers and an International Treaties Obligation Clearance letter.  The representative advised the Tribunal that she believed those documents had already been provided pursuant to a Freedom of Information request which may have been lodged before the issue of the certificate. She advised that in any event, the issue of whether the applicant had returned to Iraq was not in dispute and they had no comment to make on the certificate.

24. The issue in this case then is whether “DIBP internal processes” could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding. The test is one of public interest immunity which, generally speaking, operates to restrict the production or dissemination of otherwise relevant evidence in legal proceedings where its disclosure would be against the public interest.

25. Determining whether public interest immunity applies is a balancing exercise between the principles that:

    ·No harm should be done to the nation or to the public service by the disclosure of the material; and

    ·The administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done[1].

    [1] Sankey v Whitlam (1978) 142 CLR 1 (Gibbs A.C.J., Stephen, Mason, Jacobs and Aickin JJ, 9 November 1978) at 39.

26. Where these two principles conflict, it is necessary to consider which of the two competing principles should prevail.[2]

    [2] Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667.

27. There are no exhaustive definitions or lists in considering harm which may be done to the nation or the public service or whether the administration of justice would be frustrated by certain documents or information being withheld.

28. Relevantly to this case, the Evidence Act 1995 (Cth) provides that a document relates to matters of state if adducing it in evidence would, among other things:

    ·Prejudice the prevention, investigation or prosecution of an offence;

    ·Prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law;

    ·Disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State;

    ·Prejudice the proper functioning of the government of the Commonwealth or a State[3].

    [3] Evidence Act 1995 (Cth), s.130(4).

29. In MZAFZ v MIBP the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were  ‘internal working documents’. The court held this had never been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.[4]

    [4] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37].

30. I consider the same analysis must be applied to the certificate in this case. The reason “DIBP internal processes” disclose a reason that could form part of the basis for a claim, but not the basis of the claim itself. It does not identify the harm that could be done to an agency by their disclosure. The certificate does not specify a public interest reason with sufficient detail to identify the claimed harm to the nation or public service that would be led to by its release and for these reasons I conclude it is invalid.

31. In this case the documents have already been provided to the applicant by the Department, notwithstanding the certificate. For this reason I have not provided those documents again.

    Issues to be determined

32. The issues before the Tribunal are:

    a.Whether the s.107 notice was sufficiently particularised; and if so

    b.Whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice; and if so

    c.Whether the visa should be cancelled.

33. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: that the applicant answered questions in his application for protection and attached statutory declaration to the effect he left Iraq because he feared he would be harmed by the Mahdi Army in Iraq with whom he had an adverse profile.

34. For the reasons set out in the following paragraphs, the Tribunal is not satisfied that the applicant gave incorrect information to the Department about the events he claimed occurred in Iraq between 2007 and 2009 or his fear of harm from the Mahdi Army in Iraq at that time. It follows that the ground for cancellation is not established and the decision to cancel the applicant’s visa should be set aside and substituted with a decision not to cancel the visa.

    The s.107 notice

35. 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.

36. In the current case, the s.107 notice was issued on 31 January 2017. The notice summarised the applicant’s protection claims contained in his visa application and associated statutory declaration dated 29 January 2010. In particular it noted the applicant claimed he was working [and] owned a shop in Karbala with his brother [Mr A]. The notice set out that the applicant claimed that in 2007 they were threatened by the Mahdi Army who demanded money in order to fight US occupiers and that [Mr A] was killed after he refused to pay. The applicant feared for his life and moved his family to stay with relatives but was later attacked and shot [by] a member of the Mahdi Army. He then fled with his family to Baghdad where he established a business with a relative of his wife before leaving Iraq in fear of his life in 2009.

37. The s.107 notice informed the applicant the Department had evidence he had visited Iraq on multiple occasions for extensive periods since the grant of his protection visa. Such evidence was stated to include incoming and outgoing passenger cards, a flight itinerary, entry and exit stamps, admissions by the applicant of travel to Iraq and a birth certificate indicating the applicant fathered a child in Iraq since being granted the protection visa. The notice stated his protection claims appeared inconsistent with his return to Iraq in 2011, 2012 and 2013 for a cumulative period of 611 days. The notice suggested his actions in returning appeared to contradict his claim that he would be harmed by the Mahdi Army in Iraq and suggested that he did not hold the claimed adverse profile at the time he applied for protection. On this basis the delegate formed the view that the applicant provided incorrect information in his protection visa application.

    CONSIDERATION AND ANALYSIS

    Is the s.107 notice sufficiently particularised?

38. In considering whether the s.107 notice in this case is sufficiently particularised, I have had regard to the comments of the Full Federal Court in the case of Zhao v Minister for Immigration and Multicultural Affairs[5]: 

    Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as maybe open.[6]  

    [5] [2000] FCA 1235.

    [6] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 at [25]‑[26].

39. Although that case dealt with s.119 of the Act rather than s.107 of the Act, the Full Federal Court has since indicated that the statements in the Zhao case ‘are of assistance in terms of the proper interpretation and application of s 107’.[7]  

    [7] Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 at [57].

40. Further the Federal Magistrates Court in SZEEM v Minister for Immigration stated:

    the requirement of ‘particulars’ must, in my opinion, also encompass particulars of the basis upon which the falsity is alleged, and these must be given with enough detail to allow the recipient a real opportunity to understand and attempt to answer the non-compliance allegation.[8]

    [8] SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27 at [38].

41. I note that the s.107 notice set out in detail the information given by the applicant in his protection visa application that is now said to be incorrect, as well as particulars of the basis on which that information is now said to be false. I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.

42. In the present matter, I am satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

43. The notice under s.107 was sent to the applicant on 31 January 2017. As set out above, the notice summarised his protection claims and noted he was granted a protection visa on the basis of the claims made. The notice stated his protection claims appeared inconsistent with his return to Iraq in 2011, 2012 and 2013 for a cumulative period of 611 days.

44. The applicant was not represented during the visa cancellation process. He responded to the s.107 notice on 17 and 20 February 2017. He agreed he had returned to Iraq during each of the periods identified by the delegate, but denied giving incorrect information in his visa application or interviews. Rather he sought to explain his reasons for returning to Iraq on each occasion.

1. In submissions made to the Tribunal and his oral evidence at the Tribunal hearing on 13 March 2019, the applicant provided further information about the circumstances of his returns to Iraq in each of 2011, 2012 and 2013.

   The applicant’s first return from 1 February 2011 - 16 November 2011

2. In his response to the s.107 notice, the applicant stated he returned to Iraq between 1 February 2011 and 16 November 2011 because his mother was experiencing serious health problems. He stated while he knew it would be dangerous, he could not sleep or eat or do anything after receiving the news of his mother’s illness. He states he approached the Department and asked for protection and arranged for his family to meet him in Baghdad where he believed it would be safest. He states he stayed to support his family through his mother’s illness, looking over his shoulder each time he went out. He states he spent several months booking heart specialist appointments for his mother, attending those appointments with his mother and paying for them and providing support to his mother while she underwent two heart operations. Over many months, her health gradually improved and once she was stable the applicant returned to Australia. During his stay, his wife became pregnant with the applicant’s youngest daughter.

3. At hearing the applicant gave evidence consistent with his response to the s.107 notice. He said his mother’s medical condition deteriorated badly, that she was normally cared for by his maternal uncle but that he was also elderly and he was really concerned his mother would pass away. He has no other living siblings and initially expected to stay in Iraq only one or two months, but her recovery took much longer. When he returned to Iraq, he lived with his family in rented accommodation in [Baghdad], 100km from Karbala. His uncle brought his mother to Baghdad and she lived with the applicant and his family for the duration of his stay. She was hospitalised several times during that period in Baghdad and returned to live with her brother in Karbala only after her health was stable, remaining in Baghdad with his wife and children for some months after the applicant returned to Australia.

4. He gave evidence that during his stay he did not return to Karbala, travelling only between the house and the hospital.  He did not work or move freely around Baghdad. When asked if he experienced any difficulties on his return to Baghdad in 2011, the applicant gave evidence he felt like he was choking the whole time he was there, his movements were very restricted and he felt paranoid that anyone could see him and send a message that he had returned to Iraq.

5. The documents provided by the applicant to the Department and the Tribunal are consistent with his claims about his mother’s illness. They include a medical report (and English language translation) from [a] Hospital in respect of the applicant’s mother, confirming she was admitted to the intensive care unit of that hospital on 3 January 2011 and diagnosed with severe myocardial infarction, blockage of the coronary vein and mitral valve prolapse.  That report indicates she was discharged on 16 January 2011.

6. A further medical report dated 18 March 2011 from [the] Hospital states that the applicant’s mother was admitted to the cardiology department on 15 March 2011 for coronary angioplasty and found during surgery to be suffering heart infarction. A further medical report dated 28 July 2011 from the same hospital indicates the applicant’s mother was re-admitted on 17 July 2011 when she underwent surgery for stents and balloon impartment in her coronary artery and was required to remain in hospital for a lengthy period due to problems with diabetes and high blood pressure. A further medical report dated 20 October 2011 from a private nursing hospital indicates she underwent a further procedure to implant stents without balloon on 28 September 2011. I accept the contents of those reports.

7. It is significant in my view that the applicant did not try to conceal his return to Iraq from the Department at the time. Rather as set out in the Department’s Assessment Document (folio 6 of [file number]), the applicant contacted the Department on 30 December 2010 and advised of his intention to travel to Iraq to see his sick mother prior to travelling to Iraq in February 2011. That document does not indicate how the Department responded to the applicant’s information, but the applicant states he asked the Department to provide him with protection while in Iraq and was advised that the Department could not do so, but did not advise him of the consequences of his travel to Iraq (that is, that his visa might be cancelled). I accept the applicant’s evidence in that regard, noting also his agent’s advice that he was not in breach of his visa conditions in returning to Iraq.

8. The s.107 notice sets out that the applicant also declared his travel to Iraq at the time on his incoming and outgoing passenger cards and in an interview on his arrival back in Australia on 16 November 2011. He travelled on his Australian Titre de Voyage which contained entry and exit stamps from Iraq.

9. I am satisfied the applicant returned to Iraq because of his mother’s serious illness, that he remained there during her multiple hospital admissions during 2011 and that he was at all times truthful in his statements to the Department about his travel to Iraq.

   The applicant’s second return from 12 October 2012 - 31 December 2012

10. Again, the applicant agrees that he returned to Iraq during this period. He has consistently stated that he did so because he was not present for the birth of his daughter (born [date] while the applicant was in Australia) and he was missing pivotal moments of his daughter’s life.  He states his own health had deteriorated due to his separation from his family and he decided to visit his family he had been missing so much. He states he was aware of the potential dangers but was comforted by the fact that nothing had happened to him on his earlier visit, as well as knowing the ever changing politics and power shifts in Iraq within the government, the people and the militias. He states that during his stay he was confined to the family’s rented home in Baghdad, rarely venturing out. He felt the life come back to him when he held his baby daughter and his health got a little better.  He returned home and continued waiting for his family reunion visa application to be processed.

11. At hearing the applicant gave evidence that in his culture it was believed that if you did not see a child in their first year, you would never see them again and his reason for returning was to see his daughter, conceived during his earlier visit and born in his absence.

12. The medical documents submitted by the applicant to the Department bear out his claims. A medical report from his GP dated 9 February 2017 confirms he was diagnosed with angina and hypertension in 2010, depression, PTSD and back pain in 2011 and serious heart problems in 2012.  A report from a consultant psychiatrist, [dated] 11 February 2013 confirms the applicant is under his care for mixed anxiety, depression and PTSD and that he had earlier attempted suicide.

13. Again, the applicant did not seek to hide his travel to Iraq. The s.107 notice sets out he travelled on his Australian Titre de Voyage which contains the relevant entry and exit stamps from the Iraqi authorities and disclosed his travel to Iraq in his incoming and outgoing passenger cards as well as at an interview with a Border Force officer when he departed Australia on 12 October 2012.

14. I am satisfied the applicant returned to Iraq because his health was deteriorating and he missed his family, that he wished to see his newborn daughter whom he had not met and that he was at all times truthful in his statements to the Department about his travel to Iraq.

    The applicant’s third return from 18 August 2013 to 21 April 2014

15. It is not in dispute that the applicant travelled to Iraq during this period. He states he returned to Iraq after receiving a phone call from his wife stating that his mother was critically ill and did not have long to live. He again returned to Baghdad where his mother underwent open heart surgery which was successful, although she remained in ICU for a significant period.  He states he remained for several months to look after his mother in a rented house in Baghdad, but did not travel openly or freely in Iraq during his return. At hearing the applicant gave evidence that his mother was near death, that the family had pointed her in the direction of Mecca because they believed her death was imminent and that the open heart surgery she required was risky because of her diabetes.  She did recover from the surgery, but her recovery took many months.

16. A medical report from [a] Hospital states his mother was admitted on 12 September 2013 and underwent open heart surgery, replacing a damaged aortic valve with an artificial valve. The s.107 notice sets out that the applicant travelled on his Australian Titre de Voyage and declared his travel to Iraq in his outgoing and incoming passenger cards.

17. I am satisfied the applicant returned to Iraq because of his mother’s serious illness, that he remained there during her surgery and recovery and that he was at all times truthful in his statements to the Department about his travel to Iraq.

    Were the applicant’s returns to Iraq inconsistent with his claims for protection?

18. The delegate considered the above matters and nonetheless found that there had been non-compliance in the way described in the s.107 notice. For the following reasons, I have reached a different conclusion on this point.

19. A mere suspicion is not sufficient to establish the ground for cancellation. Rather before the visa can be cancelled, a decision maker must reach a real state of satisfaction that a ground for cancellation exists. A visa cannot be cancelled because the decision-maker has identified a possible ground for cancellation which the visa holder has not been able to rebut[9].

    [9] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

20. Based on the evidence before me, I have found the applicant returned to Iraq in 2011 because of his mother’s serious illness and remained there during her multiple hospital admissions during 2011. He returned to Iraq in 2012 because his health was deteriorating and he missed his family and wished to see his newborn daughter whom he had not met. He returned to Iraq in 2013 because of his mother’s serious illness and he remained there during her surgery and recovery. I have found that he disclosed his intention to travel to Iraq to the Department prior to his first return to that country and that he was at all times truthful in his statements to the Department about his travel to Iraq.

21. I note the applicant claims to fear harm in Iraq relate to his fear of the Mahdi Army and other Shia extremist groups, not the Iraqi authorities. The fact those groups did not harm the applicant during his returns to Iraq in 2011, 2012 and 2013 does not on its own demonstrate that he gave incorrect information about the incidents he said happened in Karbala, Iraq between 2007 and 2009.  Other relevant factors may include the passage of time, the changed security situation, the fact the applicant returned to Baghdad and not Karbala and the cessation of his former business interests which had brought him to the attention of extremists in 2007.

22. I note the IMR who interviewed the applicant and assessed his claims recorded in his decision record that he found the applicant to be a credible witness, who answered all questions calmly and in detail. The IMR stated he accepted his account of his life in Karbala and the manner in which Islamic groups used threats and targeted killings to gain control over the local population, considering it consistent with the known activities of the Mahdi Army. The IMR accepted his account of the death of his brother and the further attempt on the applicant’s life that left him wounded. The IMR noted the applicant’s claims he was required to register with the local authorities to be consistent with published information. The IMR accepted that the political wing of the Mahdi Army attempted to infiltrate the Iraqi bureaucracy at all levels during the period its military wing was under assault from Government and international forces, noting that to be consistent with published information cited in the decision. The IMR accepted the applicant left Iraq because he feared serious harm at the hands of the Mahdi Army and that he was specifically targeted for reason of his imputed political opinion as an opponent of the followers of Muqtada Al Sadr.

23. I consider the applicant’s reasons for returning to Iraq in 2011, 2012 and 2013 were compelling. His travel was fully disclosed to the Department and was not in breach of his visa conditions. I accept that while he had ongoing concerns for his personal safety during these periods of return, those concerns were ultimately outweighed by his concerns for his family. I also accept the applicant had good reasons for considering the threat to his own safety may have subsided somewhat since his first departure from Iraq:

    a.Firstly, a considerable period of time had elapsed between the most serious of those incidents, being the murder of his brother and the attack on the applicant in Karbala in 2007, and the applicant’s first return to Iraq in 2011. This is even more the case for his later visits in 2012 and 2013 and all of his returns were to Baghdad, not Karbala.  It is not implausible that by the time of the applicant’s return, the passage of time meant that he did not have a current or sufficiently adverse public profile as would attract attention from religious extremists. 

    b.Secondly, there was a significant improvement in the security situation in Iraq between the attacks on the applicant and his brother in 2007, his departure from Iraq in 2009 and his return to that country in 2011. DFAT reports the conflict in Iraq descended into near sectarian warfare in 2006-07 when Shia militant groups embarked on a campaign of kidnappings and killings of their Sunni rivals. The security situation began to improve in 2008 following a new strategy involving a surge in US troops, the use of moderate Sunni tribesmen and an improved Iraqi army to combat insurgents. DFAT reports the US troops began to depart in 2009 with the last leaving Iraq by the end of 2011 ‘which ushered in a period of relative calm and reduced violence’ and it wasn’t until 2013 that violent incidents again started to increase[10].

    c.Thirdly, the applicant’s protection claims were linked closely to his employment and business interests at the time, which were no longer in existence at the times of his return in 2011, 2012 and 2013. During each period of return he stayed in Baghdad, not Karbala where he had operated the business at which his brother was killed.

    d.Fourthly, it is notable that [Dr A]’s 2013 report sets out in detail the applicant’s personal history and events in Iraq in a manner which is entirely consistent with the information earlier given to the Department by the applicant during the visa grant process in 2009.  I note this was reported to [Dr A] some three years after the grant of the applicant’s protection visa and four years prior to the applicant receiving notice his visa was to be cancelled. I consider the applicant would be unlikely to recount such a history to his treating psychiatrist at that time if those claims had been manufactured in the manner suggested by the delegate.

    [10] DFAT Country Information Report: Iraq, 20 November 2013 at 2.1 – 2.6.

24. For the above reasons, I am not satisfied the applicant gave incorrect information in his protection visa application as to any of the events he says occurred in Iraq prior to his departure from that country, his claimed adverse profile as an opponent of the followers of Muqtada Al Sadr or his fear of harm from the Mahdi Army in Iraq. While his desire to support his family appears to have at times outweighed his fear of harm in that country, I do not consider his returns to visit his family between 2011 and 2013 indicate he did not hold an adverse profile or did not fear harm from the Mahdi Army in Iraq when he made his claims in 2009.  It follows that I do not accept the applicant provided incorrect information about his profile or his fear of harm in Iraq in his protection visa application. 

    Conclusion on non-compliance

25. For the above reasons, I find 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.

    DECISION

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

    Alison Murphy
    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.

    108Decision 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.

    109Cancellation 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.