1710223 (Refugee)

[2019] AATA 6481

1710223 (Refugee) [2019] AATA 6481 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710223

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Shahyar Roushan

DATE:9 October 2019

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 09 October 2019 at 2:53pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – particular social group – employed by Iraqi Security Forces – religion – Sunni – fears harm by militia groups – People’s Mobilisation Forces – brother killed – incorrect answers – no non-compliance – travelled to Iraq to visit sick child – return not necessarily inconsistent with claimed fear – obtained approval to travel – decision under review set aside

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 33 (1)(c)
Migration Act 1958 (Cth), ss 46A, 101, 107, 109, 116
Migration Regulations 1994 (Cth), Condition 8559

CASES
MHA v CSH18 [2019] FCAFC 80
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Sullivan v CASA (2014) 226 FCR
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 is a [national] of Iraq. He arrived in Australia [in] July 2012 as an Illegal Maritime Arrival (IMA). On 18 October 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. He lodged the application on 26 November 2012. He was granted a protection visa on 16 July 2013.

   The information

3. In his protection visa Form 866C, in reply to questions 42-48, the applicant responded: ‘Refer to statement of claims.’ Attached to the applicant’s application was a statutory declaration, dated 5 November 2012. The applicant provided the following information in his statutory declaration:

   Introduction

   I am a citizen of Iraq. I do not have a right to citizenship or a right to reside in any other country.

   I am an Arab and a Sunni Muslim.

   I was born in [Kuwait] and moved back to Iraq in [a certain year]

   I am married and have [a number of] children

   I fled from Iraq [in] June 2012.

   The country to which I fear returning

   I fear returning to Iraq.

   Why I left that country

   In [a certain year] I started to work as a police officer with the Iraqi Police Force. After fall of the regime the Americans were in charge of the Iraqi Police force and Army.

   The Americans had an office in [City 1].

   Through word of mouth I heard that the police were looking to recruit people to work as policemen.

   I went to the American office [and] showed my ID and filled in paperwork. Soon after I did a medical examination and participated in physical training over a period of 15 days.

   After this period I was cleared to join the police force. I was then sent to [Country 1] for training. This training was for approximately 2 months. I was trained on how to inspect cars for explosives and how to handle dangerous situations and violent people. I also received weapons training.

   On return from [Country 1] we were given our police uniform. We were then given 15 days rest and were told to wait until we were allocated a station. I received notification that I would be based in [City 1] and I was transferred to [Location 1].

   My duties involved [specific tasks]. I worked shift work.

   I worked without incident until 2007.

   In January 2007 I received a threat letter. The threat letter was in an envelope with a bullet. The letter said that I was traitor and that I was an agent for the foreigners. This letter was handed to my mother by a man who had come to our house by car. My mother said the men in the car were wearing dark clothing but she did not recognise any of them.

   I was very afraid after receiving this threat letter. I knew these men had power and control in Iraq and if I stayed the risk of being killed was great. The next day my whole family abandoned our [property] and left for Baghdad. This included my wife and children, parents and siblings. I did not tell the police force I was leaving or where I was going as I knew that the police force have been infiltrated by the militia. It was safer to not tell anybody that we were leaving.

   It was not safe in Baghdad but as it was a big city I felt it was easier to remain anonymous. I was forced to keep a low profile and my mother would do things such as the shopping. We did not know what to do. We had no options and we were really at a loss as to what to do.

   [A number of] days after we left for Baghdad we heard that our [property] had been destroyed. I am certain that this was done by the people who threatened me.

   We lived off our savings and my mother sold her jewellery in order to help us survive. When this ran low my brother [Sibling 1] started to work [and] my father borrowed some money from a friend. In 2010 I also started to work as [in a different role] to earn some income for our family.

   [In] 2011 my brother [Sibling 1] was killed. He was shot on the streets of Baghdad. We were told that armed men chased him on the streets and when they caught him they shot him. He was specifically targeted and I believe that this was related to the previous threat I received in [City 1]. My [siblings] all worked [at] [Location 1]. I believe that my brother was killed because of me and because I was part of the police force. I also believe he was targeted because he [worked] at [Location 1] and because he was Sunni. I believe that his death is related to the previous threats against me.

   After my brother was killed we fled to [City 2]. We were very distraught and very scared. We feared that if we stayed in Baghdad more members of the family would be targeted. As an ex-police officer [working at Location 1] I was very scared I would be caught and be killed. I stayed in hiding in [City 2] and could not work due to the risk of being identified and killed.

   After my brother was killed I felt I could no longer stay in Iraq as I feared for my life. I had no money to leave immediately. My father borrowed money from his friends in order for me to flee from Iraq.

   I left Iraq [in] June 2012 and arrived on Christmas Island [in] July 2012.

   What I fear may happen to me, by who and why, if I return to that country

   I fear that if I return to Iraq I will be killed.

   I fear that I will be killed by militia groups.

   I fear I will be killed because I worked as a police officer and [worked at Location 1]. I will be seen as someone who supported the Americans in Iraq.

   I have already been threatened and my family [property] was destroyed. My brother has been targeted and killed and I fear if I return to Iraq that the same thing will happen to me.

   I also fear that as a Sunni I may be killed by Shi'a militia groups.

   Why I think the authorities of that country cannot or will not protect me if I were to go back to that country

   The authorities will not protect me from harm if I return to Iraq. The Iraqi Government has been infiltrated by militia and there is no effective Government operating in Iraq.

   Why I think relocation to another area in my country is not a reasonable option

   Militia groups operate all over Iraq and there is nowhere safe I can relocate to. I have already been forced to flee from [City 1] and then my brother was targeted and killed in Baghdad and we were forced to flee from Baghdad. In [City 2], also had no guarantee for my safety because the militia groups are operating all over the country. I was not safe from harm in [City 2] and this is why I had to flee Iraq. I am seeking asylum in Australia as I fear for my life in Iraq.

   The notice

4. On 15 February 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his protection visa on the basis of non-compliance with s 101(b) of the Act. The NOICC stated that the applicant provided incorrect answers to questions 45, 46, 47 and 48 of Form 866C as he travelled to Iraq on four separate occasions:

   ·     Between [date] 2013 and [date] 2013, for a period of three months.

   ·     Between [date] 2015 and [month] 2015, for a period of six weeks

   ·     Between [date] 2015 and [date] 2016

   ·     Between [date] 2016 and [date] 2016

5. The Notice stated that Departmental records indicate that the applicant travelled to Iraq on each occasion, as declared in his outgoing and incoming passenger cards. In addition, date stamps on his Australian Titre de Voyage ([deleted]) indicate that he arrived at [City 1] International Airport on the third occasion. 

   It was stated that the fact that the applicant voluntarily returned to Iraq on four occasions, engaged with the Iraqi authorities, and remained in the community unhindered, means that he was neither apprehended nor harmed. Furthermore, the fact that he travelled to [City 1] International Airport, and on each occasion returned to Australia unharmed, indicates that he did not hold a fear of returning to Iraq and did not hold the adverse profile he claimed in his application for protection. 

6. In addition, it was put to the applicant that departmental records show that since the grant of his protection visa, the applicant sponsored his spouse [who] lodged a subclass UF-309 Combined Partner application in [Country 1] [in] January 2014. In the application, the applicant provided a residential address in [City 1], Iraq. The delegate stated that this indicates the applicant has returned to this location on his return to Iraq, where his family now resides. This raises concerns about the credibility of the information he provided in support of his protection visa application, particularly his claim that his family relocated because he was targeted.

   The applicant’s response

7. On 8 March 2017 the applicant’s representative responded to the NOICC and provided the following information:

8. The applicant travelled to Iraq between [date] 2013 and [date] 2013 because his [son] developed [a medical condition], and his wife was sick. The applicant went to Iraq to support his family, as there were no other family members who could take care of them.  The applicant did not know that he needed permission in order to travel to his home country. He told immigration staff at the airport about his reasons for travelling, before he departed.

9. The applicant obtained approval to travel to Iraq between [date] 2015 and [date] 2015, to see his son and wife.

10. The applicant travelled again to Iraq in [month] 2015. The reason was that his [relative] had passed away [in] 2015, and the applicant needed to support his father, who had severe psychological trauma as a result of the death. He also returned to support his family who were going through a difficult situation.

11. In regards to the fourth trip, the applicant did not travel to Iraq. He went to Iran, as his son was undergoing medical treatment in Tehran.

12. In regards to the applicant’s wife’s partner visa application, it was stated that she was moving between different states since 2007, and mainly resided in the city of [City 2]. However, she provided her sister’s address in [City 1] because that was the only known address in Iraq that she could use for correspondence with the Department.

13. The representative stated that the applicant’s main problems in Iraq are due to the militia who are not controlled by the Iraqi government. It was submitted that the applicant still has a well-founded fear of persecution in Iraq. The applicant’s representative submitted copies of a UNHCR report, dated November 2016, an undated UK Home Office report and an extract from the Office of the General Commissioner for Refugees in 2015, referring to the situation in [City 1].

14. The applicant’s representative also provided copies of the following documents in support of the submission:

    • Medical test results and reports relating to the applicant’s son [issued] in Iraq between [May] 2013 and [May] 2014.
    • Medical reports in relation to the applicant’s son, dated [September] 2016, issued in Iran. 
    • Medical tests/reports in relation the applicant’s spouse [dated] [April] 2015 and [May] 2016 and issued in Iraq.
    • The applicant’s travel itinerary between Iran (Tehran) and Australia, covering the period [date] 2016 to [date] 2016.
    • Photographs of the applicant’s son in hospital.
    • The applicant’s [relative]’s death certificate, dated [in] 2015.
    • Land title of a house in [City 1] in the names of [names deleted].
    • The applicant’s Australian Tire de Voyage, issued [in] 2015, including his Iranian visas and entry and exit date stamps in Iraq and Iran.

    ITOA

15. The Department conducted an International Treaties Obligations Assessment (ITOA) in relation to the applicant. On 21 March 2017, the delegate found that Australia does not owe him non-refoulement obligations.

    The delegate’s decision

16. The delegate found that the fact that the applicant was able to return to his country of claimed persecution on three occasions, demonstrated that he was not at risk of harm as claimed in his Protection visa application. The delegate found that the applicant had been untruthful and provided incorrect information in his application for a protection visa, specifically in relation to questions 45, 46, 47 and 48 of Form 866C.

17. On 9 May 2017, a delegate of the Minister cancelled the protection visa under s 109 of the Migration Act, on the basis that the applicant had provided incorrect information with his application for a protection visa.

    Application for review

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

19. On 7 August 2017, the applicant’s representative made a submission to the Tribunal in support of the application for review. The submission referred to extracts from a DFAT Report, dated June 2017, to support the applicant’s claims of persecution due to his Sunni faith and his employment as a member of the Iraqi Security Forces (ISF). The representative stated that based on the DFAT report, relocation is not reasonable in the applicant’s case. 

20. The representative stated that the applicant was not aware of the procedural aspects of reporting travel to his home country. After obtaining approval for his trip between [date] 2015 and [date] 2015, he reported only to the passport office, believing that this was the same as reporting to the Department.

21. The representative submitted that the applicant’s circumstances were genuine and compelling, as reflected by the fact that he obtained approval from the Australian government to travel to Iraq on his third trip, due to his wife’s and son’s sickness. He also travelled to Iran on his fourth trip, for his son’s medical treatment.

22. On 20 September 2019, the applicant’s representative made another submission to the Tribunal. The submission repeated the applicant’s response to the NOICC dated 8 March 2017, and reiterates the applicant’s claims that he did not provide incorrect information. In particular, the representative stated that the applicant’s departure to Iraq for a total duration of four and a half months within a seven year timeframe does not mean that he does not fear persecution in that country.

23. The submission states that the applicant’s reason for travelling to Iraq on the first three trips and to Iran on the fourth was because his child was sick. It was submitted that because the applicant obtained approval from the Department for his second trip for this reason, it is reasonable to think that his first and third trip should have also been approved. In addition, the representative stated that the applicant understood that everything was okay, because prior to his third trip the applicant went to the Australian passport office and was issued with a new travel document after informing them he was travelling to Iraq.

24. The representative referred to a previous Tribunal decision to support the claim that he had a subjective fear of harm when he applied for refugee status. It is claimed that the fact that the applicant was not harmed when he returned to Iraq does not prove that he did not have a subjective fear of harm at the time of application. It is further submitted that while in Iraq, the applicant took steps to minimise the chance of harm, including staying away from his home area and maintaining a discreet profile by avoiding going out. The representative stated that it is human nature for people to risk their lives to travel back to a country to visit and care for family members; this does not mean that the refugee will be safe if they settle back in that country. The representative referred to the UNHCR hand book on refugees to support this claim.

25. In regards to the applicant’s wife’s address in [City 1], the representative stated that the reference to ‘[City 1]’ in his wife’s visa application includes the area of [named area]. A link to a website about the history of [City 1] was referenced in the footnotes.

26. The representative stated that the applicant landed at Basra airport on his first and second trip. The submission states that Basra is a city that borders Kuwait to the south while [City 1] is the centre of Iraq. At Basra, the applicant was driven his father’s friend [who] knew the roads in the south very well and was able to avoid the main roads and Shia militias in these areas. It was stated that the applicant landed in [City 1] on his third trip, and was also picked up by discreetly, by [the friend]. 

27. Furthermore, the representative submitted that there was non-compliance with section 108 of the Act because in the NOICC, the delegate only repeated what the applicant stated without considering the responses. It is submitted that the delegate erred in suggesting that mere return to the home country indicates that the applicant gave incorrect information. The representative stated that the delegate’s assumptions are not in compliance with section 2.41 which contemplates that a careful assessment of the applicant’s circumstances should be considered in determining whether the applicant’s return was voluntary or not.

28. The representative stated that Condition 8559 does not apply to the applicant’s case, as he was granted his Protection visa prior to 3 June 2013. However, it is stated that the condition itself contemplates that people can return to their home countries for very compelling reasons.

29. Lastly, the submission repeats the protection claims made by the applicant. It is submitted that the People’s Mobilisation Forces (PMF), which consists of different Shia militias in Iraq, now have a formal cover. Therefore there is a real chance that applicant will be harmed in the foreseeable future he is to go back to Iraq. A news article and extracts from a DFAT report are attached to support this claim.

    The hearing

30. The applicant appeared before the Tribunal on 26 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant’s representative attended the hearing.

31. Following the hearing, the applicant’s representative provided a further submission, essentially arguing that the ITOA assessment and the decision to cancel the applicant’s visa, which relied on the ITOA assessment, ‘were both made in error, because the delegate did not properly consider the country information.’ The applicant’s representative then proceeded to refer to set out ‘current country information’ which he considered should be applicable in the Tribunal's review of the cancellation decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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].

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

7. In other words, in cases where the existence of certain facts form the basis of the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. 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’.[3] 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’.[4] 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’.[5]

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

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

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

8. 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.[6] 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.[7]

   [6] (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

   [7] Ibid [120].

9. 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. [8] 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 as it sees fit in undertaking its fact-finding role.[9]

   [8] Ibid, at [121]. Flick and Perry JJ referred 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…’.

   [9] Ibid, at [122].

10. As the contents of the NOICC demonstrate, the delegate considered the applicant’s responses to questions 42-48 in his Form 866C and the information provided in the accompanying statement. 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 three 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.

11. The delegate’s conclusion that the applicant had provided incorrect answers in his Form 866C and the accompanying statement, 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 and the accompanying statement, 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 Shi'a militia groups on account of his employment as a police officer, being Sunni and [working at Location 1] near [City 1].

12. 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 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. 

13. The applicant has given consistent evidence throughout the process in relation to his claims for protection. The applicant and his family resided in a [property] in the outskirts [of] [City 1]. In [a certain year] he started working as a police officer and was eventually assigned [duties] around [Location 1], which was previously under the US command. In January 2007, he received a threatening letter, which prompted him and his family to move to Baghdad. His family [property] was subsequently destroyed. In October 2011, one of his brothers, who worked [at] [Location 1], was killed. The applicant formed the belief that the killing was linked to the death threats he had previously received. After his brother’s death, the applicant’s family moved to [City 2] and sometime later he departed Iraq for Australia.

14. 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 upon returning to that country. The applicant claimed that he feared Shi'a militias because they had threatened him in the past and he considered these militias to be responsible for destroying his family’s [property] in [City 1] and killing his brother in Baghdad sometime later. He claimed the authorities could not protect him from the harm he feared.

15. Having carefully considered the applicant’s evidence, including the documentary evidence submitted, the Tribunal accepts that the applicant’s son became ill and the family had serious concerns regarding his welfare. The Tribunal is prepared to accept that the applicant had felt compelled to see his son. The Tribunal also accepts that there were periods of time that his wife was also ill and had been unable to care for their son, placing additional pressure upon the applicant to return to Iraq to ensure that his son continued to receive the treatment he needed. 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 and the accompanying statement. The Tribunal accepts that the applicant’s desire to see his ill son outweighed his fears arising from the circumstance that led to his application for a protection visa.  The Tribunal accepts that by travelling to Iraq the applicant took a calculated risk. The Tribunal accepts that he had remained at his own home in [City 2] on all three occasions and was careful not to be seen.

16. Having regard to all of the evidence before it, the Tribunal does not accept that the applicant’s return to Iraq on the three occasions referred to in the NOICC is actually persuasive enough to find that the information the applicant provided in his application for a protection visa and his statutory declaration of 5 November 2012 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 eight 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.

17. 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. It follows that the discretionary power to cancel the applicant’s visa does not arise.

18. 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.

    Delegation

19. The Tribunal was notified by the Department that the officer who made the decision to cancel the applicant’s visa did not have the delegated power to cancel visas under section 109, at the time the decision was made.

20. In MHA v CSH18 [2019] FCAFC 80, the Full Federal Court considered an appeal from CSH18 v MHA [2018] FCCA 3226, which considered the Tribunal’s powers on review of a purported cancellation made without the necessary delegation. The Full Court confirmed at [57] that the Tribunal had jurisdiction to review the decision. At [88], it held that the Federal Circuit Court erred in finding that the only power of the Tribunal was to set aside the decision. Following the Full Court judgment, there is no question that the Tribunal has power to set aside one of these purported s.109 cancellations, where the ground of cancellation is not made out.

    DECISION

21. 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.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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