1708728 (Refugee)

[2017] AATA 2463

1708728 (Refugee) [2017] AATA 2463 (1 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708728

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Shahyar Roushan

DATE:1 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 01 November 2017 at 3:48pm

CATCHWORDS
Refugee – Protection visa – Cancellation – Iraq – Irregular Maritime Arrival – Religion – Sunni Muslim – Persecution by Shia majority – Voluntary returnee

LEGISLATION
Administrative Appeals Tribunal Act 1975, s 33
Migration Act 1958, ss 46A, 101, 107, 109, 119
Migration Regulations 1994, Schedule 2

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

   Background and Evidence

2. The applicant arrived in Australia [in] April 2012 as an Irregular Maritime Arrival (IMA). [In] July 2012, the Minister for Immigration exercised his power under section 46A (2) of the Migration Act to allow him to lodge a Protection visa application.

   The Information

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

   Question  42:  I  am  seeking  protection  in  Australia  so  that I  do  not  have  to  go  back to:
   Please see statement included herewith
   Question 43: Why did you leave that country?
   Please see statement included herewith
   Question 44: Have you experienced harm in that country?
   Please see statement included herewith
   Question 45: What do you fear may happen to you if you go back to that country?
   Please see statement included herewith
   Question 46: Who do you think may harm/mistreat you if go back?
   Please see statement included herewith
   Question 47: Why do you think this will happen to you if you go back?
   Please see statement included herewith

4. In a statement attached to the request, dated [July] 2012, the applicant stated the following:

   1.        I am [age] year old male citizen of Iraq born in [Al Basra] district, Basra province, Iraq.

   2.        I have provided the Department of Immigration and Citizenship with a copy of my marriage certificate, citizenship certificate and residency card issued in Iraq.

   3.        I am unable to provide a copy of my passport as I threw it overboard in [country].
   COUNTRY TO WHICH I DO NOT WANT TO RETURN

   4.        I am afraid to return to Iraq.
   WHY I LEFT THAT COUNTRY, INCLUDING DETAILS OF PRIOR HARM

   5.        I am a Sunni Muslim living in [Basra] province. My neighbourhood is disapproving of the fact that I attend a Sunni mosque and have tried to convince me to join their Shia rituals. Given that I have declined their invitations, I feel that the neighbourhood is shutting me out by not inviting me to gatherings and are always looking down at me.

   6.        There is also a man known to me [in] the neighbourhood who I believe belongs to a particular Shia Party. Each time he sees me, he always asks me why I do not come and volunteer or help in constructing the Husainiah (mosque). I always come up with excuses and tell him that I will help at a later date as I am scared to outright refuse him.

   7.        Even my children are now being subjected to this discrimination on the basis of being Sunni. In around mid-November or mid-December, my [son] was having trouble at [school]. [My son’s] classmates knew that he was a Sunni Muslim as he would not participate in the usual Shia religious practices. [My son’s] classmates had essentially inherited their families' hatred towards Sunni Muslims and were continually bullying and physically assaulted him. He would come home with bruises and scratches on his body and face. When l approached the relevant teacher at school and asked him why he did not take any action in stopping the bullying and assault, the teacher was dismissive and told me to go away as I was Sunni. l told the teacher he should not be like this. l was very disappointed as this teacher, being a figure of authority, was teaching and raising the new generation of children. l thought that if a teacher could have such an attitude, there was no point escalating the issue to the school principal. Just before my departure to Australia, l took [my son] and my [other son] out of school.

   8.        The above incidents provide an insight on what my life is like in Iraq. I feel that I am always being judged and looked down upon simply due to my faith. I am weary of these sectarian tensions.

   9.        [In] November 2011 or [December] 2011 (I am unsure of the exact dates), I had an accident in my [vehicle] ([year] model) that l drove for work purposes when I was travelling from [a town] to Basra with two Kuwaiti passengers. They were dressed in their national costume. As I was about [number of] kilometres out of [the town] around a rural farming area, a [vehicle] ([year] model) with two men drove up beside me and tried to wave me down to stop. I decided not to stop and sped up as I feared that they were either after the passengers or myself. The vehicle tried to stop me by speeding up in front of me. My car was [a particular] model which was bigger than theirs which I do not think they anticipated. As such, when they tried to obstruct my path, their car flipped upside down.

   10.      The Kuwaiti passengers were very scared and pleaded with me to save them.

   11.      My understanding is that Kuwaitis are not generally welcome in Iraq due to the fact that they are predominantly Sunni Muslims. Many Kuwaitis cross the border to visit their family members. I have heard that some Kuwaitis have even been kidnapped and held for ransom. It crossed my mind that perhaps the men who were pursuing me were after the Kuwaitis for this reason.

   12.      I kept driving about [number of] kilometres until I reached the end destination and dropped the Kuwaiti clients off at the taxi bay and went straight to my friend [Mr A]. As a result of the incident, [parts] of my vehicle were damaged. I was so terrified at the time. l left the car with [Mr A] and told him exactly what happened. He put it in the garage in his house [at] Basra then I went back home.

   13.      I asked [Mr A] to fix my car through his connection so then I could attempt to sell it. I was so fearful that they would recognise me through the description of the car or through my registration details. I could not sleep that night.

   14.      [Mr A] took the car to a workshop to be fixed. While the car was there, the workshop employees visited them and asked who was the owner of the vehicle. [Mr A] informed me that there were people trying to track me down. I thought that if they kept asking other drivers of my whereabouts, they would eventually find me. All I could think about was to go to my father's farm with my wife and children.

   15.      When I went to the family farm, I remained there for about six or seven days. My close friend [Mr B] who lived close to me informed me that some people had come to my home to look for me. My family ended up staying with [Mr B] but I went to [Mr A’s] home as I did not want them to know that I was in the area. I made my way to [Mr A’s] house at night to minimise the chances of anyone spotting me. I kept in contact with my family mainly through telephone and only paid very quick visits during the night.

   16.      I had considered going to Northern Iraq but the difficulty was that I needed a guarantor. In any case, the guarantor could only accommodate me temporarily.  I also enquired about going to Alramdi, however, in order to do this, I had to seek permission from the mayor of the town. I tried to pursue this option but was refused as they had no guarantees that I was not running away from trouble. Having exhausted my options, [Mr A] then agreed to assist me in fleeing the country. Through [Mr A’s] connections, my trip to Australia was organised.

   17.      My family have remained in [Mr B’s] home. [Mr B] had informed my friend [Mr A] that there are still people coming to my home to look for me. My family are confined to [Mr B’s] home and are trying to keep a low profile. I call my family every two or three days to check up on them. My wife tells me how relieved she is that I have departed Iraq as she was very afraid that these men who were involved in the accident or their cohorts would continue to try to track me down.
   WHAT I FEAR MAY HAPPEN IF I RETURN TO THAT COUNTRY

   18.      If forced to return to Iraq, I fear that I will be captured and detained or killed.

   19.      If forced to return to Iraq , I fear that I will be subjected to degrading, cruel or inhuman treatment and punishment, to torture or arbitrarily deprived of my life.
   WHO I THINK WILL HARM/ MISTREAT ME IF I WAS FORCED TO RETURN TO THAT COUNTRY

   20.      I fear that the people (and their family or cohorts) who were involved in the car accident.

   21.      I fear that the Muslim Shia activists or Shia community members in my neighbourhood would not protect me if the people that were involved in the car accident came to look for me. I fear that they would easily give me up  due to the fact that they disapprove of my faith.
   WHY I THINK I WILL BE HARMED/ MISTREATED IF I RETURN TO THAT COUNTRY

   22.      If forced to return to Iraq I will be harmed / mistreated for reason of my imputed political beliefs and religion (Sunni). By driving in a car with a group of Kuwaiti foreigners, I fear that my actions may have resulted in a misrepresentation that I support Kuwaiti foreigners who are predominantly Sunnis and am showing that I am essentially against the Shia groups or communities that dominate Southern Iraq.

   23.      By transporting Kuwaiti foreigners in my car, this may be seen as direct action against Shia groups given that there is widespread discrimination against Shia Muslims in Kuwait. Again, I am unsure as to the actual intentions of the men who were pursuing me but it may be a possibility that they were pursuing me for this reason.

   24.      I believe the family members of the men who caused the car accident will harm me because I may have unintentionally harmed them even though they provoked the accident.

   25.      In the event that the people who caused the car accident are not Shia activists and only intended to attack me out of revenge, I still fear for my life given that the men who pursued me (or their family members or cohorts) are continuing to track me down and seem to be doing so in a persistent manner.
   WHY I THINK THE COUNTRY'S AUTHORITIES WILL NOT PROTECT ME IF I AM FORCED TO GO BACK TO THERE

   26.      I fear the authorities are not able to protect me. This situation would come down to tribal law and the potential perpetrators would simply disregard the law and come and take me and harm me out of revenge.

5. [In] July 2013, the applicant was granted a protection visa.

   The Notice

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

   The NOICC set out the applicant’s statement of [July] 2012 and reproduced his responses to questions 42-47 of his Form 886C. The NOICC stated:

   Subsequent to the grant of your Protection visa, departmental records show the following: [In] October 2013, less than four months after your Protection visa grant you departed Australia.  You completed an outgoing passenger card on the passenger card for question 'Country where you will spend most time abroad' you answered 'Iraq'. Departmental records show you re-entered Australia [in] January 2014. The total time you had been away from Australia was two months and [number of] days.

   [In] September 2014, you again departed Australia. You completed an outgoing passenger card. On the passenger card for question 'Country where you will spend most time abroad' you answered 'Iraq'. Departmental records show you re-entered Australia [in] March 2015, having spent seven months outside of Australia.  You completed an incoming  passenger card. On the passenger card for question 'Country where you spent most time abroad' you answered 'Iraq.'  The total time you had been away from Australia was seven months.

   [In] April 2016, you again departed Australia. You completed an outgoing passenger card. On the passenger card for question 'Country where you will spend most time abroad' you answered ‘[Country 1]'. Departmental records show you re-entered Australia [in] September 2016. [In] March 2015, a routine check was conducted by departmental border staff at [an] International Airport when you arrived in Australia from overseas. The following Iraqi official documents were located in your possession. Travel Itinerary from [Australia] to [Country 2] [in] September 2014 and [Country 2] to Basrah [in] September 2014. Basrah to [Country 2] [in] March 2015 and [Country 2] to [Australia] [in] March 2015.  Your titre de voyage shows an entry stamp to Al-Basrah International Airport [in] September 2014 and a Republic of Iraq - Kurdistan Region entry stamp [in] October 2013.

   Given the grant of your Protection visa on the grounds that you claimed to face a real chance of harm by the Shia extremist groups in Iraq, followed by you voluntarily returning on two occasions back to Iraq for approximately nine months cumulatively, I consider that you have provided incorrect answers to questions 42, 45-47 of your Protection visa application Form 866C.

   …

   You have voluntarily spent extensive amounts of time in Iraq since you were granted a Protection Visa. This indicates that you do not have an adverse profile on the basis of your Sunni faith, or for any other reason, and are able to safely reside in Basra, Iraq, or might indicate that you are of Shia rather than Sunni faith.

   …

   The Response

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

8. Under the cover of the submission, the applicant provided a statutory declaration, also dated [in] January 2017. In his statutory declaration the applicant stated the following:

   1.…

   2.At all times of process of my protection visa application and thereafter, I always, have been honest and truthful to the Australian Government and DIBP's personnel/officials.

   3.I deny ever giving any incorrect information to DIBP as far as my protection visa application or my protection claims are concerned.

   4.When I left Iraq to Australia for purpose of seeking protection, I left behind my wife [and] children in Basra Iraq. I already have advised DIBP about my family component.

   5.After grant of my protection visa on or about  [July] 2013 I travelled to Kurdistan Region (northern part of Iraq and being an independent Kurd Government) to see my wife and  [children] (this occurred between [October 2013] and [January] 2014. Indeed, my wife and my children needed to see me (they were emotionally affected) and hence I had no option but to go back and be there for my wife and to support her and support my children (I also was desperate to see them). Bearing in mind that Kurdistan was and remains a safe independent region and the fact that Kurdistan was not governed by the Iraqi government at all. Indeed; Kurdistan was/is governed by the Kurdistan Regional Government (KRG) & not the Iraqi government, with the capital being Erbil & the fact that there was/is no sectarian struggles  within region  of Kurdistan (so, it was safe for me to go there). Kurdistan also has its own military forces and at all times I understood that Western countries (including USA; UK and Australia) also might see  or consider Kurdistan  as an independent  and or sovereign  region (but not other parts of Iraq). On this basis, I travelled to Region of Kurdistan between [October 2013] and [in] January 2014 and I managed to spend good time with my wife and my children in the said region of Kurdistan (though their travel to Kurdistan was long and difficult, I was advised by my wife). At conclusion of my stay in the region of Kurdistan between [October 2013] & [January 2014] I returned back to Australia and my wife/children returned to Basra accordingly.

   6.Three (3) to Four (4) months after my return to Australia, my wife's health got worse. Indeed, she and one of my children (being the most sensitive one) had a very difficult time coping without me (emotionally); particularly after my re-union visit in October 2013. I used to get constant calls from my wife post my first visit of 2013 and I always heard from her that she is not feeling good and that our child (being the most sensitive one) also was emotionally disturbed. These news kept coming for some time until I realised that my wife/child's situations are no longer tenable. When I told my wife that I can see her & the children in Kurdistan again, she informed me that she is not able to take this long journey again; notwithstanding her bad health and the distance. I then; on or about August 2014 made some enquiries from my friends in Iraq as to the issue of "safety and or security" in Basra & I was advised of some change of circumstances at that stage - some improvements indeed (I was told that the situation was better but not completely safe and or secure; given the continued sectarian conflicts re-occurring in current Iraq). I also managed to talk to my friend [Mr B] who kindly agreed to arrange rental of a residence on an isolated farm outside Basra for my family; and me so that we can spend time together and far from the eyes of others in Basra. I also, before I book my ticket to Basra; called DIBP on their general number 131881 & I managed to talk to an operator. When I advised the operator that I seek permission to go to Basra (Iraq); the operator advised me that I may travel but such travel shall be upon my own risk. Having  said all the  above , I decided to take a calculated  risk but keep a low profile by spending time with my wife  and children  on an isolated farm that was/is located about [number] km from Basra. In light of the above, I finally managed to travel to Basra [in September 2014] and was conveyed immediately and directly (from the airport) to the farm that my friend "[Mr B]” managed to rent for and or on behalf of us.

   7.My wife and my children were happy to see me again in 2014. However and having said that, I at all times remained on the farm & kept low profile. I also avoided going out to public places/sights to avoid any negative/adverse attention against myself. My wife, my kids and I spent time together on this farm between [date]/09/2014 & [date]/03/2015.  As soon  as my wife and my child started to feel better & as soon as their self-confidence was up again, I returned to Australia immediately but it took my wife and or my child almost 6 months  to get better (I never returned to Basra/Iraq  since my departure on March 2015). I was obliged to be there and support them. My wife/child's emotional/psychological needs occurred beyond my control and will. I am a family man and I had to be there for my family - hence I had to travel back to Basra (Iraq) in 2014 but I stayed on an isolated farm with them to support my family (they truly needed me). However and having said that, l avoided going out to public places and or city of Basra with intention of attracting no adverse attention by the extreme Shias against me.

   8.That at all times of my temporary stays at the farm between September 2014 and March 2015; (subject matter of this notice); there were on-going risks of persecution by the extreme Shia groups but I avoided this risk by being on this isolated  farm  at all times with my family  (I was not living  or working in Basra -  I was  only providing  support/care to my family  on an isolated farm located outside the city & nothing else).

   9.That at all times of my temporary stays at our residence on this isolated farm (subject matter of this notice) the Iraqi government could not provide effective protection to Sunnis against the continued persecution of Sunnis by Shia extreme groups (but again, I always stayed on the farm and only looked after my wife/children and thus I was able to avoid all risks).

   10.However and having said the above & the continued instability of Iraq & the continued sectarian conflicts in current Iraq as well as my family's continued need for my emotional & other support & the difficulty of me travelling to Basra/Kurdistan again AND in light of worsening security/safety situation of Iraq, I made arrangements for my wife and my children to leave Iraq and travel to [Country 1] (which occurred on or about January 2016) as it was not safe even for them to stay in Iraq/Basra any more (it was not even safe for me  to go back).

   11.My wife and my children continued to miss me and they were/are emotionally in need of me. This is why I again decided to travel to [Country 1] and spend time with them between [date]/04/2016 & [date]/09/2016. [Country 1] is not a country against which I sought protection.

   12.I never provided any incorrect answer to any question that was/is part of process of my protection visa application.

   13.I am of Sunni faith and I remain of Sunni faith. My travel to Kurdistan (non-Iraqi jurisdiction) should not undermine my faith and or my protection claims. Please see above for further explanations.

   14.At all times since my departure from Iraq in 2012 and thereafter I always was of Sunni faith and I always feared the Shia extremes. However and having said this, I was not scared when I spent time with my family in region of Kurdistan as this region is an independent region and was/is safe for me and my family. In addition, I kept low profile on my second trip and was staying on an isolated farm (outside Basra) with my family where my contact with members of the public was almost zero. On both these occasions, my fear from Shia extremists was reduced significantly; given the above outlined circumstances and or explanations (not to mention that there was also change of circumstances in 2014-15 when the number of sectarian conflicts were reduced in Basra; which was an important consideration for me at the time when I decided to go and stay on the farm with my family - in addition my wife/child's emotional needs and their illness (forced me to go to Basra- otherwise, I would not have entertained the idea of being at risk again by such return in 2014).

   15.The mere fact that I returned to Basra once and to Kurdistan once does not mean that I never held any Sunni profile or that I never feared from Shia extremists. Not at all. It is just that I reduced my exposure to these extreme Shias as outlined above and for reasons already provided above. Indeed, the current situation of Iraq remains very bad and there are on-going sectarian conflicts/killings that are re-occurring in Iraq at this moment.

   ITOA

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

   The Delegate’s Decision

2. [In] April 2017, a delegate of the Minister, after considering the prescribed circumstances, decided to cancel the applicant’s visa. The delegate found that the applicant had provided incorrect information. 

   Application for Review

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

4. On 21 August 2017, the applicant’s representative provided a submission in support of the application for review. The submission, essentially, stated that the applicant was not notified in relation to the ITOA and the department did not provide him ‘with the procedural fairness required in these circumstances’. It was further submitted that the applicant’s return to his home country ‘in his second trip… is not conclusive that the applicant will not face real chance of harm or that there is no substantial grounds to be believe that he will be persecuted in the reasonable foreseeable future’. It was submitted that the applicant fled Iraq because he is a Sunni who was persecuted by Shi'a militias in south of Iraq.  The applicant’s family fled Iraq to [Country 1], fearing for their lives. The submission quoted at length from DFAT’s June 2017 Country Information Report in relation to Iraq.

   The Hearing

5. The applicant appeared before the Tribunal on 24 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. 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.

8. 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.

9. 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.

10. 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.

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

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

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

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

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

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

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

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

    [4] At [120]

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

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

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

15. As the contents of the NOICC, set out above, demonstrate, the delegate referred to the applicant’s trips to Iraq [in] October 2013 and [in] September 2014. The delegate stated that the applicant’s voluntary return to Iraq on two occasions for approximately nine months cumulatively indicated that he had provided incorrect answers to questions 42, 45-47 of his Protection visa application Form 866C. She further stated that the applicant’s voluntary return to Iraq indicates that he does not have an adverse profile on the basis of his Sunni faith or for any other reason and is able to safely reside in Basra, Iraq.

16. The delegate’s conclusion that the applicant had provided incorrect answers in Form 866 is essentially, if not solely, based on the applicant’s return to Iraq on two separate occasions and remaining in that country for nine months, cumulatively. Whilst the delegate identified specific answers provided by the applicant in Form 866, the Tribunal has found no evidence to establish that the applicant’s answers were in fact incorrect and that he had deliberately lied by claiming that he feared being harmed by Shi'as.

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

18. The present case is not a case where a person’s return to the country of feared persecution, in itself, seriously undermines the claims made in the application for a protection visa.  For example, the applicant did not claim to be stateless only to obtain a passport from the authorities in the country of feared persecution and return to the country using that passport.  The applicant did not claim that he feared the authorities in Iraq or that he would be arrested if he returned to that country.

19. The applicant has given consistent evidence throughout the process in relation to his claims for protection. He claimed that he was transporting Kuwaiti passengers when he was pursued by another vehicle. The pursuing vehicle crashed in the course of attempting to stop the applicant’s vehicle. The applicant claimed that he feared being harmed by those involved in the car accident, as well as Shi'a activists who would easily give him up due to the fact that they disapprove of his faith. This incident prompted his decision to depart Iraq.

20. Having carefully considered the applicant’s evidence, including the documentary evidence submitted, the Tribunal accepts that the applicant travelled to Iraqi Kurdistan [in] October 2013 in order to visit his family. In support of his application for review, the applicant submitted a copy and translation (from Kurdish) of a rental agreement in his name, indicating that he had leased a house in Erbil from [October] 2013 to [January] 2014. The Tribunal accepts that during his stay in Iraq, the applicant had remained in Kurdistan, which he considered to be a safe and independent region. The Tribunal further accepts that the applicant returned to Iraq, this time to Basra, [in] September 2014. The Tribunal accepts that his return to Iraq was motivated by reports of his wife and one of his children’s ill health. On the basis of the medical evidence submitted by the applicant, the Tribunal accepts that his wife started experiencing severe anxiety and depression. The Tribunal accepts the applicant’s evidence at the hearing that his wife had threatened to commit suicide due to her state of mental health and her living circumstances in the applicant’s absence. The Tribunal accepts that, during his stay, the applicant resided on a farm, kept a ‘low profile’ and avoided going out to public places. The Tribunal accepts that, in January 2016, the applicant’s wife and children departed Iraq for [Country 1] and they continue to reside in that country.

21. Having regard to all of the evidence before it, the Tribunal is of the view that the applicant’s return to Iraq, particularly on the second occasions, was somewhat imprudent, if not foolish. Nevertheless, the Tribunal is also of the view that by travelling to Iraq the applicant took a calculated risk. The Tribunal accepts that the applicant’s desire to see his wife and [children] had outweighed his fears arising from the security situation in Iraq. The Tribunal does not accept that travelling to Iraq is inconsistent with the claims which he made in his application for a protection visa and the accompanying statement or that the answers the applicant gave in his application for a protection visa were incorrect. The Tribunal has not reached a real state of satisfaction that non-compliance has been established.

22. For these reasons, the Tribunal does not accept that the applicant gave incorrect answers in his application for a protection visa. The Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

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

    Shahyar Roushan
    Senior Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)     requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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