1708014 (Refugee)

[2020] AATA 2569

1708014 (Refugee) [2020] AATA 2569 (29 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708014

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Simone Burford

DATE:29 June 2020

PLACE OF DECISION:  Perth

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 29 June 2020 at 2:47pm

CATCHWORDS
REFUGEE – cancellation ­– protection visa – Iraq – ground for cancellation – incorrect information in visa application – validity of primary decision – notification requirements – minor defects in the content of s.107 notice – claimed adverse political profile – voluntary return to Iraq – imputed informer – fear of Shia militias – reasons for return – steps taken to mitigate risk – positive state of satisfaction not established – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), rr 2.42, 2.55; Schedule 2

CASES
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
Briginshaw v Briginshaw (1938) 60 CLR 336
Cuong Van Nguyen v RRT (1997) 74 FCR 311
Sainju v Minister for Immigration and Citizenship [2010] FCA 461
Sullivan v CASA (2014) 226 FCR 555
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).

2. The delegate cancelled the visa on the basis that he provided incorrect information in his application for a protection visa, specifically in response to questions 20, 42, 43, and 45- 48,  of Form 866C.  The issue in the present case is whether the notice complied with the requirements of s.107, if so, whether that ground for cancellation is made out, and further if so, whether the visa should be cancelled.

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

Background and Evidence

1. The applicant is a [age]-year-old national of Iraq. He is ethnically Faili Kurdish and is a Shia Muslim from Baghdad.  He has a wife and [number of] children ranging in age from [age] to [age] who remain in Iraq.

2. He arrived in Australia [in] May 2012[1] as an Irregular Maritime Arrival (IMA). He lodged a protection visa application on 26 August 2012. The applicant was subsequently granted a protection visa on 27 June 2013.

   [1] The applicant’s submissions indicated he arrived [in] June 2012.  The NOICC also refers to the applicant arriving on Christmas Island [in] June 2012.  However, Departmental documents including his Departmental movement record indicate he arrived [in] May 2012 and the Tribunal has used this date which is constituent with other material including his initial arrival interview which was conducted [in] June 2012. In any event, in the Tribunal’s view nothing in the review turns on this difference.

The information

1. The applicant arrived on Christmas Island [in] May 2012 as an undocumented IMA. On 2 June 2012 he signed a record of IMA Entry Interview with the Department which included the following information (as included  in the Notice of Intention to Consider Cancellation (NOICC):

   At page 3 ‘date of birth’:

   [Date].

   At Question 10 'Citizenship':

   Iraq.

   At page 8 Question 27 father’s name and citizenship listed as:

   '[Mr A]'; 'Iraq'.

   At page 15 Question 1 'Why did you leave your country of nationality ('country of residence)?’

   My country cannot support me. Can not protect my wealth or life. I had to leave my home in June 2007 because of the worsening safety and security issues. My home was to [sic) far away from my workplace. 4 days after I left my home, the Mehadi broke into my home and established a headquarters for themselves. When I went to talk to them about this issue and they talked to me in a very demeaning way: 'you will not get your home'. [In] June 2007 the American forces raided them in my home. They arrested 2 members in the prominent position, the leaders of that group, they were sleeping in my house. these are the names of the leaders of that group that were caught by the American forces [Mr B] (AKA [Alias B]) and [Mr C] (AKA [Alias C]). I was accused that I had informed the American forces about them. They occupied my home all this period.

   …

   At page 17 Question 11 ‘Arrangements for Travel to Australia; What arrangements were made?’

   CLIENT - Had own passport since 2011 - just in case he and his family had to leave Iraq. Organised own travel to [Country 1]

   [Country 1] – [Mr D], Organised trip from [Country 1] to Australia - he spoke to the smuggler and paid the money

   [Country 1] – [Mr E] - organised complete trip to Australia

   [Country 2]  - [Mr F] - took the money in [Country 2]

   At page 22 Question 18 'What do you think will happen to you if you return to your country of nationality (residence)?’

   I will be killed by Militia because I was accuse (sic) that I had information to the American forces and they were arrested because of me.

2. In his protection visa Form 866C, lodged on 26 August 2012, in reply to questions 20, 42, 43, and 45- 48, the applicant provided the following information.

   Question 20: List your citizenship at birth

   Iraq.

   Question 42: I am seeking protection in Australia so that I do not have to go back to (Given name of country or countries)

   Iraq.

   Question 43: Why did you leave that country?

   Please refer to my attached Statement of Claims.

   Question 45: What do you fear may happen to you if you go back to that country?"

   Please refer to my attached Statement of Claims.

   Question 46: Who do you think may harm/mistreat you if you go back?

   Please refer to my attached Statement of Claims.

   Question 47: ‘What do you think will happen to you if you go back?’

   Please refer to my attached Statement of Claims.

   Question 4: ‘Do you think the authorities of that country can and will protect you if you go back?’

   No. Please refer to my attached Statement of Claims.

3. The applicant provided a ‘Statement of Claims’ supporting his application for the protection visa which was prepared by his then immigration agent and submitted to the Department.  The ‘Statement of Claims’, which was in the form of a Statutory Declaration by the applicant, provided the following information:[2]

   [2] The Tribunal has only reproduced those sections referred to in the NOICC.

   Under ‘Background Information’ (Page 1, section 1):

   ..My nationality is Iraqi…

   Under ‘Why I left my home country’ (Page 1, section 2; Page 2, section 3-5):

   I have suffered for many, many years during Saddam's regime as a Faili Kurd, but I never left Iraq. We weren't allowed to have jobs, during the war with Iran we were placed at the front line to fight, we had to report about our location all the time, and were always treated as a non Iraqi citizen, even though I had all the documents.

   The Islamic Party is a government group, also known as Al Kaema Al Iraqia, would stop people when they were travelling through various areas and identify them by their National ID card as Shia or Sunni. Many Shias were killed because they were suspected of being informers, and also kidnapped for ransom or robbed. This is why I had to move house so that I didn't have to risk my life travelling through these areas to work.

   In 2007 I had a home in [Neighbourhood 1], Bagdad and moved to [Neighbourhood 2] to be closer to work. Five days after I left, my neighbours telephoned me to say the Al Mehadi Army militia had come and occupied my [Neighbourhood 1] property for their own purposes. They are Shia as well, so I went to them to ask about it, and they said they needed it, and just leave it and go. I could not say anything to them, they were armed, so I left. A week later the Americans raided the house and arrested some of the people there and put two of them in jail, [Mr B] and [Mr C]. The militia then rented my property out to a family and took the money for it. I could do nothing because they are armed and dangerous, and I feared for my life if I tried to reclaim my property.

   The war ended and the Americans left [in] November 2011. [In] January 2012 one of the men who had been jailed telephoned me on my mobile. He was a high ranked person in the militia army who used to carry out assassinations. He said 'I am [Mr B], did you know me, I used to live in your home. I want you to come here and transfer the house into my own name, and that will be the fee for the years I have spent in prison because of you, and you have four days to do that'. I was extremely worried that they believed I had informed on them to the Americans. I knew that if I did as he said he would kill me after I gave him the house, so I did not go to transfer the property. I never returned to that property.

   [In] February 2012 at approximately 11pm someone fired several bullets at my home. We stayed at the neighbours house and in the morning I took my family to the grandparents house in [address]. I stayed with them there for one month and did not go to work, I own a shop but I had to close it. I felt there was no solution because the militia will not let me survive. They will kill me for informing on them. For them, killing people is very easy. I had to flee.

   …

   What I fear might happen If I go back to my home country (Page 2, Section 6):

   I fear I will be killed by the Islamic Party group, the Al Mehadi Army militia, and in particular [Mr B].

   …

   Why I believe the authorities in my home country will not protect me (Page 3, Section 7):

   The authorities in Iraq cannot protect themselves. They all have armoured cars and personal security guards. The militia have power over the government and they are corrupt.

   Why I think I will suffer significant harm (Page 3, Section 8):

   I will suffer significant harm because I am Shia, and because high ranking militia individuals believe I am an informer and a spy, and mean to kill me.

   Other matters that I would like the Department to take into account:

   I am a Faili Kurd, however, I maintain that! am an Iraqi citizen, I have documents and a passport. I am not stateless.

NOICC

1. On 2 December 2016, the applicant was issued with an NOICC of the protection visa, on the basis of non-compliance with s.101(b) of the Act. The NOICC stated that the applicant provided incorrect information in answers to questions 20, 42, 43, and 45–48 of Form 866 as he had voluntarily returned to Iraq on two separate occasions:

   ·     [From] December 2014 [to] February 2015;

   ·     [From] October 2015 [to] December 2015 [and] December 2015 [to] December 2015.

10.The NOICC stated that Departmental records indicate that he travelled to Iraq on each occasion:

·     as declared in his incoming and outgoing passenger cards for the travel from 7 December 2014 to 11 February 2015 and from 15 October 2015 to 30 December 2015;

·     as evidenced by entry and exit stamps for the Republic of Iraq for 16 October 2015 to 16 December 2015 and 18 December 2015 to 29 December 2015.

The NOICC stated that the fact that he voluntarily returned to Iraq on several occasions is contrary to his claims and indicates he did not hold an adverse political profile at the time of the grant of his protection visa. The NOICC stated that the length of time he spent in Iraq since the grant of his protection visa without suffering harm suggests he was not of interest to militia as claimed in his protection visa application and that he does not have a genuine fear of being harmed if he were to return to Iraq.

11.The Tribunal notes that the NOICC also refers to the fact the applicant’s Titre De Voyage held a visa for Iran.  The NOICC notes the Titre De Voyage contains an entry and exit stamp for the Republic of Iran (from [Date 1] December 2015 to [Date 2] December 2015). The Tribunal notes it is unable to verify this information as the stamps are not in English and are untranslated.  However, the Tribunal notes those dates are the same as the dates given for the entry and exit from Iraq and appear to be an error.  The Tribunal infers that the correct dates for the entry and exit stamps for Iran were [Date 3] December 2015 and [Date 4] December 2015.  This information is discussed further below.

The applicant’s response

12.The applicant did not respond to the NOICC.

13.As discussed below, the applicant testified before the Tribunal he did not receive the NOICC.  Material on the Department file indicates it was returned to sender and received back to the Department on 3 January 2017.

14.The Tribunal finds the applicant did not receive the NOICC and accordingly did not respond to it.

International Treaties Obligations Assessment

15.The Department conducted an International Treaties Obligations Assessment (ITOA) in relation to the applicant. On 9 January 2017, the delegate found that Australia does not owe the applicant non-refoulement obligations.

The delegate’s decision

16.On 25 January 2017, a delegate of the Minister cancelled the applicant’s visa on the basis that he provided incorrect information in his application for a protection visa, specifically in response to questions 20, 42, 43, and 45–48 of Form 866C. 

17.The delegate found that the applicant’s claims that he held an adverse political profile and would be harmed by members of the Al Mahadi Army militia are incorrect as he was able to return to Iraq on numerous occasions without incident. In addition, he returned within 18 months of the grant of his protection visa.

18.The delegate also noted that the applicant had travelled to and remained in Iraq without any apparent issue which was contradictory to his protection claims as identified in the protection visa application.

19.The notice of cancellation was dated 22 March 2017. The issuing of the notice is discussed further below.

Application for review

20.The applicant applied for a review of the delegate’s decision.

21.The applicant appeared before the Tribunal on a number of occasions to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who provided both written and oral submissions to the Tribunal.

22.The applicant appeared before the Tribunal initially on 12 September 2019 to give evidence and present arguments (the first hearing).

23.At that hearing the applicant confirmed he had not received the NOICC.  The Tribunal provided a copy of the NOICC to the applicant and put the contents of the NOICC to him pursuant to s.424AA of the Act.  The Tribunal also provided the applicant with a copy of the Notice of Cancellation dated 22 March 2017 and the delegate’s decision dated 25 January 2017.  The Tribunal put the contents of the decision to the applicant pursuant to s.424AA of the Act. The applicant’s initial submissions and the issue of the validity of the NOICC were also discussed. 

24.At the hearing the Tribunal also raised with the applicant the existence of a certificate on the Department’s file issued in accordance with s.375A of the Act.  The Tribunal provided a copy of the certificate to the applicant’s representative and invited him to make submissions on the validity of the certificate.  The applicant requested further time to make written submissions on the certificate following the hearing and the Tribunal agreed. The Tribunal indicated it had concerns about the validity of the certificate as it appeared the certificate had not properly identified a relevant public interest justifying non-disclosure of the information. The Tribunal indicated that regardless it would put the gist of the relevant information covered by the certificate to the applicant consistent with its obligations under s.424A at the next hearing.

25.The hearing was adjourned to allow the applicant and his representative time to consider the NOICC and his responses to the s.424AA material and certificate.  The Tribunal also allowed further time for the applicant to make written submission on the validity of the NOICC.  The Tribunal indicated the applicant’s responses to the issues raised in the NOICC and the decision would be discussed at a further hearing.

26.The applicant made written submissions on the validity of the notice, the certificate and other issues arising during the hearing following the hearing.

27.A further hearing was held on 11 November 2019 (the second hearing). The applicant and his representative attended.  At that hearing the applicant gave evidence and presented arguments.  The applicant commented on or responded to the NOICC and delegate’s decision.  Material covered by the certificate was put to the applicant pursuant to s.424AA of the Act.  The applicant did not seek an adjournment and responded to that information at the hearing.

28.Following the hearing the Tribunal wrote to the Department inviting them to consider revoking the certificate.  The Department subsequently notified the Tribunal that the certificate was being withdrawn.

29.The Tribunal scheduled a further hearing for 16 June 2020.  The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The applicant’s represented initially objected and requested the hearing be held in person.  However, as the Tribunal was not conducting in-person hearings and the timetable for recommencement of those hearings was uncertain the Tribunal indicated it was not possible and the hearing would proceed.

30.At the hearing on 16 June 2020, the Tribunal outlined the purpose of the further hearing and notified the applicant that the certificate had been revoked. Due to technical difficulties the hearing was further adjourned until 17 June 2020 (the final hearing).  On that date the hearing proceeded via telephone due to ongoing technical difficulties with video. Following initial technical difficulties the hearing proceeded without further technical issues.

31.At the final hearing the Tribunal indicated it would be releasing the documents covered by the certificate to the applicant.  The Tribunal provided the applicant an additional 7 days for any further comments or response to those documents or any final submissions.  The Tribunal noted that any relevant adverse information contained in the documents had already been put to the applicant from comment pursuant to s.424AA at the previous hearings. Further written submissions were received dated 28 June 2020.  These in effect repeated earlier submissions that the applicant had been denied procedural fairness with respect to the issuing of the NOICC.

32.The hearings were conducted with the assistance of an accredited interpreter in the English and Arabic languages. The interpreter appeared via telephone at the hearings on 16 and 17 June 2020.  At the hearing on 17 June 2020 the applicant’s representative raised an issue with the adequacy of interpreting services due to ‘accent’ differences between the interpreter and applicant making communication difficult.  After discussing the issue with the applicant and interpreter the Tribunal adjourned the hearing until another interpreter in the Iraqi Arabic dialect could be obtained.  An alternative interpreter was arranged and the hearing recommenced.  The applicant indicated he was comfortable with the interpreter arrangements following the change and the Tribunal was satisfied the interpreting issues had been addressed.

33.Having considered all the circumstances, the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

34.As noted above, on 9 September 2019, the applicant’s representative made submissions to the Tribunal in support of the review. In summary, the applicant submitted that the decision to cancel the visa should be set aside because:

·The applicant was not afforded procedural fairness because he was not given a chance to explain why he returned to Iraq;

·with respect to this contention the applicant submitted that while the applicant accepted and acknowledged the Department had sent a letter inviting him to provide reasons, he did not receive the letter notifying of his cancellation and was denied an opportunity to provide reasons for his return, and

·at all material times the Department was aware of the applicant’s limited English and the requirement for the interpreter be present when communicating with the applicant and in the event of a visa cancellation he would have expected to receive a phone call from the Department with an interpreter present.

·The delegate did not consider the locations which the applicant returned to while in Iraq;

·on his visit in late 2014/early 2015 the applicant did not return to Baghdad but went to Kurdistan where his family travelled to see him and they stayed in a family friend’s home. The Kurdistan region is relatively safer than Baghdad, and

·On his later visit in 2015 the applicant did not return to Baghdad but travelled to Najaf where he stayed with family and relocated with his wife and children and sister who underwent medical treatment [in] Najaf.

·The delegate was not aware of the compelling and compassionate circumstances as to why the applicant returned to Iraq;

·The applicant was struggling to live without his family, particularly [his] small children.

·The applicant’s sister was suffering from [Medical Condition 1] which she had been battling since 2009.

·The applicant is suffering from a range of mental and physical health issues associated with separation from his family and the terminal illness of his sister.

·The applicant attempted to bring his family to Australia prior to going to Iraq however he was advised by the Department the application would have the low priority.

·The delegate was not aware of the lengths which the applicant went to as to remain in hiding while in Iraq; and

·The delegate did not consider the timing of the applicant’s return to Iraq in 2015 where the applicant returned during the month of Muharram, a sacred month within the Shia community;

·the applicant returned to Iraq arriving the day after the commencement of Muharram which continues up to 12 November 2015. During that period fighting is prohibited and it is not unusual for millions of Shias all over the world travel to Iraq. The applicant was aware of this and felt it would enable him not be identified by those from whom he had sought protection.

35.The following additional documents were also provided by the applicant’s representative with those submissions:

·translated documents concerning the applicant’s sister’s medical condition and treatment in  Iraqi including:

·a 2 page pathology report from [a named] Laboratory, conducted in Baghdad [dated] November 2019 documenting the results of [specified test] and pathology results of [medical condition];

·a [specialist] report from the Centre of [Dr G], Baghdad (undated);

·laboratory results from the Laboratory of [Dr G], [dated] December 2009 relating to [specified] tests.

·a report from [Clinic 1], [Dr H], (date unclear).

·a report from [Clinic 2], [Dr I] [dated] November 2009 reporting the results of [an] abdominal ultrasound.

·A report from [Clinic 3] [dated] March 2010 regarding ‘[specified test]’.

·A report from [Dr J] (undated) referring ‘[specified] Patient’ to the [Hospital 1].

·A report from [Dr K] Path. Lab. (date unknown)

·A handwritten letter in English from [Dr L], [dated] April 2017 stating that the applicant’s sister has been diagnosed with [Medical Condition 1] since four years’ prior and due to recent relapse had received another course of [medication].

·A report from the Republic of Iraq, [Ministry to Health], [dated] December 2015, signed by [Dr M]. The report notes that the patient had had [medical procedure] and a dose of [medication]. It states she was discharged because she has been cured but needs one further dose.

·A report from [Dr N] dated 5 November 2013 noting that the applicant is suffering from ‘anxiety and depression’ and ‘complaining of low mood, poor sleep, lack of attention and concentration’. The report notes that the applicant has told the doctor he is separated from his family and that the practitioner has identified separation from his family and the terminal illness of his elder sister as a stressor. The letter notes that the applicant cannot visit his family in Iraq and is planning to see his family in Iran.

·Prescriptions for the applicant for [Medication 1] from April 2017 and September 2017.

·An invoice receipt from the Department on an application for a [Partner visa] in the name of the applicant’s wife and children.

·A letter from the Department dated 9 January 2014 to the applicant’s wife at the applicant’s then address in [Suburb 1] regarding changes to the processing of the family migration visa applications. The letter notes that the ‘lowest priority applies to all Family Stream visa applicants who are sponsored by a person who arrived in Australia has an IMA and now holds a permanent visa.’

·A report from the UK Home Office, dated April 2015, Country Information and Guidance: Iraq: Security situation in Baghdad, southern governance and the Kurdistan Region of Iraq (KRI).

·A calendar of Islamic dates for the year 2015.

·A note on ‘Islamic calendar facts’, Youth for Understanding USA.

·A letter from [Mr O], [officer holder] of the Australian Iraqi Association for cultural connections [dated] October 2017 noting that the applicant is an active member of the Iraqi community and well known for his good manners. The letter states he is also a member of the volunteer team and carries appointee duty supporting the Iraqi community.

·A report from [Mr P], Counsellor/Advocate, Association for Services to Torture and Trauma Survivors (ASeTTS), [dated] September 2019 stating that the applicant has been attending trauma counselling sessions since July 2017 and has been attending 30 fortnightly/monthly counselling sessions since. The report notes that the applicant is symptomatic of both anxiety and depression. His acute stress and concerns for the status and safety of his family in Iraq continue to have a significant impact on his mental health and daily functioning.

36.At the hearings the applicant gave evidence about his circumstances and his return trips to Iraq. He told the Tribunal that he has a wife and [number of] children in Iraq.  They live with his wife’s mother in Baghdad.  [Children’s circumstances specified].

37.He has [number of] brothers and [number of] sisters. Two of his siblings are deceased. [Number] of his brothers live in Baghdad but he has lost contact with them. He has another sister in Baghdad and one in Najaf.  His youngest sister lives with his wife in Baghdad and is the sister with [Medical Condition 1]. [Number] of his sisters have been living in Iran since being forced out of Iraq under Saddam Hussein’s regime.

38.He said he applied for family reunion in 2013.  Two months after that he was told there was no right for reunion until he got citizenship.  He said he could not live there, he thought he could go to Iran and bring them there however it was too expensive to move all of them so he decided to meet them in Northern Iraq in Kurdistan. He said he stayed with them in Kurdistan in December 2014–February 2015. He said they stayed in the house of a relative of his wife. He said he flew into and out of Sulaymaniyah directly.

39.When the Tribunal asked about the next trip he said he had to go because of medical decisions to do with his sister. He said her condition had deteriorated and she was about to die.  He said most of the militia were fighting ISIS in the North and so he stayed in Najaf at his nephew’s home.  He organised for his sister to get an appointment in the public hospital there and he stayed while she had a procedure. He said that during that time there was a religious festival where lots of people come to the city and entered there so the militia were busy protecting the visitors.  He said he was in hiding there.

40.He said he wasn’t aware that as a condition of his visa he was supposed to seek permission before entering the country to which he had been found to be owed protection.  He said he told Centrelink he was leaving.  He said Centrelink said yes to travel and that he could get medical records for his sister and they could refund him, he said he believed they were on the same system as the Department.

41.He said when he went he was only thinking of the humanitarian reasons to go, his duty to go and look after his family.  He said his mental health had deteriorated at that time and that he was still suffering some mental health issues.

42.He said he was still at risk in Iraq as the militia were stronger now and were part of the government. He said the individuals who believed he had reported them to the Americans would never stop trying to kill him because of what they thought he had done to him.  He said when he was in Najaf he was very cautious and stayed in the house and only went out to help his sister with treatment.  He said Najaf was a holy shrine for Shia Muslims and it was a very crowded city at that time as it was a religious holiday so he was hidden there.  He said this was his responsibility because her husband had left her when she got sick and the rest of the family did not help. 

43.He said he went to Iran for two days as his brother-in-law had died and he needed to pay his respects to his sister. He said he got taxis there.  He said this is why he had a visa for Iran.

44.Mindful of its obligations under s.424AA of the Act, the Tribunal put the following adverse information, including as contained in the ITOA, to the applicant during the second hearing:

·The applicant travelled out of Australia on three occasions [in] November 2013 returning [in] January 2014, [in] December 2014 returning [in] February 2015 and departing [in] October 2015 returning [in] December 2015.

·The applicant travelled to Iraq during these trips and spent time in Iran.

·The applicant said that he had been visiting family in Najaf, Iraq when questioned by Departmental officials [in] December 2015.

·The applicant had previously claimed that he lived in a predominantly Shia area in Baghdad. His family (wife, children and a number of siblings) are still resident in Iraq and he has returned there at regular intervals. It was therefore reasonable to conclude that he have a residence to return to and familial support in Iraq.

·The applicant travelled at the same time of the year on three separate occasions. When asked at the airport he indicated he was travelling back to his family. He did not make any claims that he was travelling back because of family emergency or other such reason that would need to necessitate urgent travel.

·The information suggested the applicant routinely travelled back to Iraq to visit his family.

·His voluntary travel back to Iraq, a country where he claimed to be at risk of being harmed or killed, suggests that his claims for protection were not credible and that he did not have a genuine subjective fear of harm in Iraq.

·There is not a real chance that if returned to Iraq the applicant would be persecuted for reason of his race, religion, nationality, membership of particular social group or political opinion. Therefore, he is not a refugee and Australia does not have non-refoulment obligations in respect of the applicant.

·Further, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Iraq there is a real risk (as in a real chance) that he will suffer significant harm. Therefore the applicant is not a person in respect of whom Australia has a non-reform and obligations under the Convention against torture (CAT) or the international convention on civil and political rights (ICCPR).

45.The applicant did not request an adjournment and responded to part of the information at the hearing.  Further time was provided following the hearing for the applicant to respond to the information in writing.

46.The Tribunal notes that during the course of the hearing the applicant confirmed that he had also returned to Iraq on an earlier visit.  The applicant departed Australia [in] November 2013 and returned [in] January 2014.  This was the visit where he went to Iran and was planning to bring his family there but could not, so he arranged to meet them in Kurdistan (referred to in the letter from his general practitioner).  He told the Tribunal he stayed in Sulaymaniyah at the same address as he did on the December 2014 trip (particularised in the NOICC).  He testified he was in Kurdistan for a period of around 10 days, travelling in and out of Iran where he stayed with his sisters.  He said his wife and children and sister travelled to Kurdistan to spend time with him on this visit.

CONSIDERATION OF CLAIMS AND EVIDENCE

47.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.

48.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.

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

49.In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. 

50.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.

51.On the Departmental file is a copy of the NOICC which advised the applicant that his visa may be cancelled under s.109 because of concerns that he did not comply with s.101(b) (visa applications to be correct) of the Act.  He was advised to respond in writing. 

Did the notification comply with the Act and Regulations?

52.As noted earlier, the applicant did not receive the NOICC prior to the delegate’s decision to cancel the visa.

53.The applicant’s representative submitted that:

·The applicant was not afforded procedural fairness because he was not given a chance to explain why he returned to Iraq;

·The NOICC and the cancellation decision were sent to two different addresses. This was not proper service of the notice.

54.A separate notification applies in relation to a primary decision to cancel a visa under s.109 of the Act. Regulation 2.42 of the Migration Regulations 1994 (the Regulations) sets out the notification requirements imposed on the Minister in relation to decisions to cancel a visa under s.109. It requires the notice to be in writing and specifies the content of that notice. Regulation 2.55 sets out the methods by which the Minister must give the holder or former holder of a visa (other than a person in immigration detention, or where the holder has an authorised recipient) a document relating to cancellation, this includes documents relating to the proposed cancellation of the visa under the Act.[3]

[3] See Silva v MIAC [2012] FMCA 1233 where the Court held there was no scope for the operation of s.29 of the Acts Interpretation Act 1901, which provides a general presumption as to time of service, in the face of r.2.55 at [12].

55.Regulation 2.55(3) provides that a notice given to an adult must be given in one of the ways prescribed, including:

…(c)  by dating it, and then dispatching it:

(i)  within 3 working days (in the place of dispatch) of the date of the document; and

(ii)  by prepaid post or by other prepaid means; to the person's last residential address, business address or post box address known to the Minister;…

56.Regulation 2.55(7) relevantly provides that if a notice is given to a person in Australia by prepaid post, the person is taken to have received the document “…7 working days (in the place of that address) after the date of the document; …”

57.Regulation 2.55(9) provides:

(9) If:

(a) the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and

(b) the person nonetheless receives the document or a copy of the document;

the Minister is taken to have given the document to the person and the person is taken to have received the document:

(c) at the time specified by this regulation for that method; or

(d) if the person can show that he or she received the document at a later time--at that later time.

58.A failure to properly notify an applicant does not affect the validity of the primary decision.[4]  However, if the notice does not comply with the legislative requirements it may affect the validity of the notification. Defective notification may result from non-compliance with requirements as to the content of the notice, or from non-compliance with the requirements as to the method of notification.

[4] Section 66(4) (visa refusals), ss.127(3) (visa cancellations), 137M(3) (non-revocation), 137S(2) (visa cancellation).

59.Non-compliance with the requirements as to the method of notification will not necessarily result in defective notification.[5]

[5] Regulation 2.55(9).

60.An address for the purposes of r.2.55 must be an actual address of the recipient. While a person may be deemed to have received the notification in circumstances where he or she has moved from an address without the knowledge of the Minister, there must at least be some connection between the person and the address. A notice sent to an address that the Minister believes may be that of the person but where the person has never actually resided will not comply with the Regulations, even if that belief was based on reasonable grounds.[6] The ‘last known address to the Minister’ is not confined to only addresses ‘known’ after the person’s last entry to Australia.[7] The Minister has no duty to make enquiries as to an applicant’s address.[8]

[6] Lu v MIMIA (2004) 135 FCR 450 at [29]–[32].

[7] Choi v MIAC [2008] FMCA 1717.

[8] Saluja v MIAC [2010] FMCA 952

61.There is no requirement that the notice of decision be in the applicant’s own language. In Cuong Van Nguyen v RRT it was held that in the circumstances of that case, notice in English was ‘reasonable and appropriate’.[9]  It was suggested that ‘notice’ does not equate with ‘knowledge’[10] and that it would be impracticable and inefficient to notify all applicants of the decision in their own language. A recipient in the situation of the appellant would be alerted by the letterhead and form of the letter that it was an official document which called for translation or for the seeking of further information.[11]

[9] Cuong Van Nguyen v RRT (1997) 74 FCR 311.

[10] Cuong Van Nguyen v RRT (1997) 74 FCR 311

[11] Cuong Van Nguyen v RRT (1997) 74 FCR 311 at 319.

62.The delegate’s decision does not detail the issues with the NOICC the applicant’s visa and the primary decision to cancel.  However, a failure to properly notify an applicant does not affect the validity of the primary decision.[12]  Accordingly, once the defect in notification was identified, the Department re-issued the notification of the decision, attaching the original decision.  The Department did not re-notify the NOICC.

[12] Section 66(4) (visa refusals), ss.127(3) (visa cancellations), 137M(3) (non-revocation), 137S(2) (visa cancellation).

63.From the Department’s file, the detail of the notifications was as follows:

·At the time of the grant of the protection visa in June 2013 the applicant was known to the Department at an address in [Suburb 1].

·In November 2016 a request was made to the Department of Human Services for information regarding the applicant, including his current residential address.

·On 2 December 2016 the Department of Human Services provided information regarding the applicant including a residential address in [Suburb 1].

·This address was consistent with the address provided on the applicant’s Incoming Passenger Card on his last arrival into Australia [in] December 2015.

·The NOICC was dated 2 December 2016 and sent by registered mail (envelope on the file) to the address in [Suburb 1].  The date of dispatch is not marked on the envelope.

·The NOICC was marked as unclaimed ‘Return to Sender’ at [Suburb 1] on 23 December 2016 and arrived at the Department on 3 January 2017.

·The decision to cancel the visa was made on 25 January 2017. Notification was dispatched on the same day by post to the address in [Suburb 1].

·The applicant lodged an application for citizenship with the Department on 24 January 2017.  The application provided an address for the applicant in [Suburb 2].

·The notice of cancellation was ‘returned to sender’ and received on 1 February 2017.

·The Department issued a new notice of cancellation to the applicant at the [Suburb 2] address on 22 March 2017 by registered mail (envelope on the file).

64.The applicant did not submit that he had notified the Department of an alternate address to the [Suburb 1] address prior to lodging his citizenship application. As discussed with the applicant and his representative at the hearing, the evidence supports a finding that the delegate complied with the notification requirements with respect to the sending of the NOICC to the applicant’s last known address. 

65.While the lack of current contact details unfortunately means the applicant was unable to respond to the NOICC, the Tribunal notes that the fact that the deemed receipt provisions in the Regulations may produce a harsh result with respect to a particular applicant does not undermine their effectiveness. In Sainju v Minister for Immigration and Citizenship[2010] FCA 461 (Sainju), where r.2.55 of the Regulations was considered, Jacobson J noted in relation to the purpose and possible outcomes of notification deeming provisions in the Act and the Regulations:

The underlying assumption in each of the deeming provisions is that the act taken by the Minister is sufficient to bring the document to the attention of the person, regardless of whether this has actually occurred.

Thus, when a document is handed to the person, it is assumed that the person will open the envelope and read it, regardless of whether he or she actually does. Also, when a document is handed to another person at the addressee’s residence or place of business, it is assumed that the other person will give it to the named person. So too, it is assumed that the postal system will work in the ordinary way and that the addressee will receive the document within the time stated.

The same assumption is made in the deeming provision which deals with electronic communications. Thus, an email is taken to be received at the end of the day on which the Minister transmits, or sends it, to the addressee.

It may be that in an unusual case there will be unfairness because the assumption which underlies the deeming provision is not fulfilled. The other person may not hand the document to the addressee, the postal system may produce inordinate delay or the email may be lost for a period of time in cyberspace. Perhaps the document will never find its way to the addressee.

But the authorities dealing with deeming provisions in relation to non-electronic communications make it clear that the effect of those provisions is not to create a rebuttable presumption of fact. They are not to be read as if they were subject to a proviso that the person is not taken to have received the document if the contrary is proved: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (“Xie”) at [13] – [14] per Spender, Kiefel and Dowsett JJ; see also the review of the authorities by Sundberg J in Minister for Immigration and Citizenship v Abdul Manaf [2009] FCA 963 at [21] – [24]; and see Tay v Minister for Immigration and Citizenship [2010] FCAFC 23 at [16] – [19] per Dowsett, Stone and Bennett JJ.

…..

The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility.[13]

[13] At paragraphs [52] to [58].

66.Justice Jacobson’s reasoning in Sainju was accepted by the Full Court of the Federal Court (McKerracher, Reeves and Thawley JJ) in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228.

67.The failure of the applicant to receive the NOICC was due to his own failure to provide the Department with updated contact details reflecting his home address. The effect of the provisions in the regulations with respect to delivery and receipt of documents is to deem that the applicant has received them.  On the evidence before the Tribunal, the NOICC was sent to the last known address of the applicant in compliance with the requirements of the Regulations and the Tribunal so finds.

Did the notification sufficiently inform the applicant?

68.The applicant made general submissions regarding the delegate’s decision.  While these were not cast in terms of whether the delegate had reached the necessary state of mind to issue the NOICC, the Tribunal has considered the submissions in the context, specifically whether or not it gives clear particulars of the non-compliance (and the basis).

69.The Tribunal agrees with the applicant’s representative that there are some shortcomings in respect of the particulars notified to the applicant on which the alleged non-compliance is based.  As noted in the applicant’s submissions, the NOICC refers to the applicant having ‘voluntarily returned to Iraq on two separate occasions 18 Months after being granted a Protection Visa for a total period of 186 days’.  This was an incorrect calculation of the total days which the applicant spent in Iraq on the two visits particularised in the NOICC.  The applicant submitted the correct total was 141 or 142 days.  Further, as noted above, it appears the dates for the entry and exit stamps for Iran are incorrectly recorded in the NOICC.  However, the Tribunal notes that the error reduces the amount of time the applicant spent in Iraq rather than increases it.

70.While there are calculation or recording errors in the NOICC, which are unfortunate, the Tribunal does not regard that they were such as would have prevented the applicant from responding to the substance of the allegation that incorrect information had been provided.  The NOICC was clear that the incorrect information was, in effect, that the applicant he could not safely return to Iraq due to threats on his life from Iraqi militia when he in fact was able to return safely to Iraq on two occasions 18 months after being granted a  protection visa based on that claimed fear of harm.  The Tribunal notes that minor defects in the content of an s.107 notice, which do not go to the substance of the allegation or affect the visa holder’s capacity to respond to the allegations, would not likely invalidate a cancellation under s.109.[14] As long as the notice refers to information that is alleged to be incorrect and a basis for why the information is incorrect, these are the particulars against which the Tribunal must assess s.108(b).

[14] MIAC v Brar (2012) 201 FCR 240.

71.The NOICC does contain some errors about the applicant’s claimed travel.  Nonetheless, having a look at the NOICC as a whole, the Tribunal is satisfied that it sufficiently informed the applicant of the basis upon which the cancellation was being considered and gave him an opportunity to respond. That is because the delegate expressly states that they have formed the view that there has been non-compliance and there is some basis for her findings.  The delegate based the NOICC on (among other things) concerns about the return of the applicant to Iraq on two occasions, after his protection visa was granted.  The applicant argued that he did not return to Iraq for 186 days on the two visits mentioned but went for around 141-142 days.  He further submitted he travelled to Iran for only two days during the second of these two trips.  For the reasons below the Tribunal accepts that was the case.  For the reasons below, the Tribunal has some concerns about the conclusions reached by the delegate), however, it accepts, at the very least, the applicant’s travel to Iraq on two occasions 18 months after he was granted a protection visa raises a question about whether the applicant’s claims at the protection visa application stage that he feared harm from Iraqi militia as a suspected informant for US forces, which led to him fleeing the country and seeking protection in Australia, was correct.

72.Therefore the Tribunal is satisfied, in the present case, that the pre-condition for issuing the notice, reaching a requisite state of mind that the visa holder has not complied with one or more of the relevant provisions, is met.  The Tribunal accepts that the notice indicates the delegate had formed the view that there has been non-compliance and there is some basis for their findings (regardless of the strength or logic of this basis).

73.Having considered the NOICC as a whole, the Tribunal is satisfied that it sufficiently informed the applicant of the basis upon which the cancellation was being considered and gave him an opportunity to respond. 

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

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

75.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.

76.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.

77.As noted above, 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.

78.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.

79.It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[15] 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.[16]

[15] 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].

[16] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

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

81.To find that non-compliance or a ground is made out, the Tribunal must be reasonably satisfied that the non-compliance occurred or that the ground for cancellation exists. ‘Reasonable’ in this sense means that the Tribunal’s conclusions must be based on logically probative material.[17] The decision-maker must be satisfied about the existence of certain facts before exercising the power. When considering the question of whether the decision-maker is satisfied there was non-compliance in the way described in the notice, he or she must ‘feel an actual persuasion’.[18] While the Tribunal is not bound by the rules of evidence, such a state of satisfaction can only be reached where ‘the factual material or information tends to make out, or support, the finding or conclusion reached’ and ‘there is a rational connection between the factual information or material and the finding or conclusion reached’.[19] The quality of the probative material provided ‘which rises no higher than raising a suspicion supporting that factual conclusion is no foundation for such a conclusion’.[20]

[17] See e.g. MIEA v Pochi (1980) 44 FLR 41 at 62.

[18] Plaintiff M64-2015 vMinister for Immigration and Border Protection [2015] HCA 50 at [64].

[19] BZC17 vMinister for Immigration and Border Protection [2018] FCA 902 at [89].

[20] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [19].

82.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; and that it might express more caution in evaluating the factual foundation for more centrally relevant facts.[21] 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.[22] 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, but imposing a requirement to apply the rule in Briginshaw in making factual findings would be an unnecessary constraint upon the Tribunal’s freedom to employ such procedures as it sees fit in undertaking its fact-finding role.[23]

[21] Sullivan v CASA (2014) 226 FCR 555 at [120], applied by the AAT in 1702551 (Migration) [2017] AATA 1415 at [31] ff.

[22] Sullivan v CASA (2014) 226 FCR 555 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…’

[23] Sullivan v CASA (2014) 226 FCR 555 at [122].

83.As the contents of the NOICC demonstrate, the delegate considered the applicant’s responses to questions 42–46 in his Form 866C. The delegate then referred to the applicant’s trips to Iraq as set out in the NOICC  and determined that the applicant’s voluntary return to Iraq on four separate occasions without experiencing any harm or impediment indicated that he did not hold the adverse profile as claimed in his application for a protection visa.

84.With respect to consideration of the additional travel to Iran and Kurdistan in 2013–2014 disclosed by the applicant , the Tribunal accepts that that it is restricted to consideration of whether there was non-compliance in the manner particularised in the s.107 notice.[24]  However, the Tribunal is not precluded from considering evidence relevant to the non-compliance, as particularised, that was not referred to in the s.107 notification.[25]

[24] SZEEM v MIMIA [2005] FMCA 27 (Smith FM, 27 January 2005).

[25] Sheptitskaya v MIBP [2015] FCCA 159 (Judge Street, 27 January 2015 at [10]–[16].

85.As the non-compliance particularised in the NOICC are incorrect answers to the questions of the protection visa application form based on the applicant’s return trips to Iraq, the Tribunal considers that the evidence regarding the additional travel is relevant to the non-compliance, as particularised. 

86.In this regard the Tribunal notes that the fact the earlier trip to Iraq was not detailed in the NOICC did not deny the applicant a reasonable opportunity to respond in writing to concerns held by the Minister about possible non-compliance due to return trips to Iraq. Rather the additional travel, in the Tribunal’s view, is additional evidence relevant to the non-compliance alleged and as such is open to be considered within the power of the original s.107 notice.

87.The delegate’s conclusion that the applicant had provided incorrect answers in his Form 866C, essentially, if not solely, was based on the applicant’s return to Iraq without apparent issues and remaining in that country for the duration of his trips. Whilst the delegate identified specific answers provided by the applicant in his Form 866C, 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 persecuted by militia groups for the reasons he had provided in his application for a protection visa. The ITOA assessment similarly relied on the fact of the applicant’s return to Iraq as evidence he did not fact a risk of harm on return to Iraq.

88.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 their subjective fear of harm and the credibility of 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. 

89.The applicant has given consistent evidence throughout the process in relation to his claims for protection. In essence, he claimed to have returned to Northern Iraq and Kurdistan in order to see his wife and children and to support his sister who was seriously ill with [medical condition]. This was supported by medical evidence relating to his sister’s illness which the Tribunal accepts. He consistently maintained that he did not return to Baghdad due to the risks to his life from militia there and sought to see his family and sister elsewhere to reduce the risk of detection. He also consistently referred to his obligation to care for his sister and his belief she may have died when her condition deteriorated in 2015.

90.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 that he feared the authorities in Iraq or that he would be arrested upon returning to that country. The applicant claimed that he feared Shia militias because they assumed he had informed to US forces about their occupation of his property for which they were subsequently jailed. He claimed the authorities could not protect him from the harm he feared on the basis that the militias worked in concert with the authorities who relied on them to maintain control over ISIS and other hostile forces in Iraq.

91.Having carefully considered the applicant’s evidence, including the documentary evidence submitted, the Tribunal accepts that the applicant had arranged to see his family in Sulaymaniyah on two of his three trips to Iraq and did not return to Baghdad on either trip. Sulaymaniyah is located in the autonomous Kurdistan region in the north of the country and is governed by the Kurdistan Regional Government.[26] The Tribunal accepts that on the first occasion he travelled overland from Iran to Sulaymaniyah and did not travel elsewhere in Iraq. On the second trip the Tribunal accepts the applicant remained in Sulaymaniyah for the entire duration of his stay. On the third trip he flew directly in and out of Najaf.  During that visit he made one overland trip for two days to Iran.

[26] European Asylum Support Office, Country Guidance: Iraq, June 2019, pp 40,119; Department of Foreign Affairs and Trade, DFAT Country Information Report – Iraq, 9 October 2018, p 29.

92.With regard to the two trips referred to in the NOICC, and the additional trip detailed in evidence to the Tribunal, the Tribunal is prepared to accept that the applicant had felt compelled to see his sister, who had [medical condition], and to see his wife and children when he travelled to Iraq (including Kurdistan). The Tribunal accepts that on these visits the applicant had remained in Iran and Sulaymaniyah and Najaf, taking steps not to be identified.

93.As it was put to the applicant at the hearing, his decision to return to Iraq raises legitimate questions in relation to his claims for protection. However, the Tribunal is not of the view that this should automatically lead to the conclusion that he had provided incorrect information in his application for a protection visa. The Tribunal accepts that the applicant’s desire to see his ill sister and his wife and children on the trips referred to in the NOICC and that his perceived need to do so outweighed his fears arising from the circumstance that led to his application for a protection visa. The applicant stated at the hearing, and the Tribunal accepts, that by travelling to Iraq he took a risk but took steps to mitigate that risk as best as he could in all the circumstances.

94.Having regard to all of the evidence before it, the Tribunal does not accept that the applicant’s return to Iraq on the two occasions referred to in the NOICC, and the additional visit referred to before the Tribunal, provide a persuasive basis to make a positive finding that the information the applicant provided in his application for a protection visa was incorrect. Relevant to the facts of this case, the cancellation of a permanent visa where the visa holder has been residing in Australia for some then six years has serious consequences and any factual findings should be based on logical and probative material. The Tribunal has not reached a real state of satisfaction that non-compliance has been established.

95.For these reasons, the Tribunal is not satisfied 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. 

96.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

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

Simone Burford
Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

5. Incorrect 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.

6. Visa 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.

7. Notice 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.

8. 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.

9. 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.

10. 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.