1717810 (Refugee)

1717810 (Refugee) [2018] AATA 5536 (3 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717810
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Meena Sripathy
DATE:3 December 2018
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 03 December 2018 at 5:17pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect information – adverse interest to the Al Mahdi army – voluntarily returned to Iraq – visited family – continued fear of persecution – reasonable and compassionate reason for travel – discretionary factors – applicant’s mental health issues – welfare of applicant’s children – son’s disability – decision under review set aside
PRACTICE AND PROCEDURE – International Treaties Obligations Assessment – non-refoulement obligations considered
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 108, 109, 119
Migration Regulations 1994 (Cth), r 2.43
CASES
McDonald v D-G of Social Security (1984) 1 FCR 354
MIAC v Brar (2012) 201 FCR 240
Mian v MILGEA (1992) 28 ALD 165
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v Brar [2012] FCAFA 30
Nagalingam v MILGEA (1992) 38 FCR 191
Saleem v MRT [2004] FCA 234
Singh v MIEA (unreported), Federal Court of Australia
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
SZEEM v Minister for Immigration [2005] FMCA 27
Zhao v MIMA [2000] FCA 1235
Zhong v MIAC (2008) 171 FCR 444
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

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).
The delegate cancelled the visa on the basis that the applicant did not comply with s101 of the Act and determined, having considered the prescribed circumstances under r.2.43, that the visa be cancelled.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 23 November 2018 to give evidence and present arguments. He attended the hearing with three of his children. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
Notice of intention to consider cancellation under s.107
A notice of intention to consider cancellation (NOICC) was sent to the applicant on 15 August 2016. The notice indicates that the delegate reached a state of mind that the applicant has not complied with the Act by giving incorrect information in his protection visa application. The notice provided particulars of information given by the applicant in his Form Part C of his protection visa application and information about departmental movement records indicating the applicant and his son travelled back to Iraq in September 2012 for three months and the applicant travelled back again in March 2015 for one month. The notice explains under ‘consideration regarding evidence’ that the applicant and his son’s return to Iraq and time spent there since being granted protection suggests they were not of adverse interest to the Al Mahdi Army as claimed in the Protection visa application.
Under the hearing ‘Particulars of the possible non compliance’ the notice states “I consider that you have not complied with s101(b), as you: have provided incorrect answers in Form Part C – Statement of Claims and background information for a claimant wishing to submit their own claims to be a refugee and supporting documentation by way of Statutory Declaration signed 7 October 2011.” No further particulars of how or why this was incorrect are indicated.
On 12 September 2016 the applicant’s representative responded to the Notice with a submission and supporting documents. In the submission the applicant denies that he provided incorrect information in his protection visa application and states that he still has fears of persecution if he returns to Iraq. He provided explanations for the trips back to Iraq in 2012 and 2015. In 2012 it is submitted the applicant returned with his son to the Kurdish controlled area of Iraq and that he never took his son to any other areas of Iraq and he spent the whole 3 months with his family in Erbil. He provided a rental agreement evidencing accommodation for the family in Erbil and pages from his son’s passport showing he entered and existed from Erbil. He took his son there to see his mother because he was planning to undertake [surgery] and his mother wanted to see him before that. In 2015 it is submitted the applicant returned to Iraq for one month because his brother [Mr A] was in a severe medical emergency, and he passed away during this visit. He went to see his mother and brother at a shrine in Najaf (600 km away from his original place) and was very afraid while there. He stayed in a hotel in Najaf for the entire period and provided evidence of a receipt for this stay. He flew in and out of [Airport 1], and provided exit and entry stamps from his passport. He maintained that he continues to fear serious harm in Iraq because of his past experiences and only travelled back for these compassionate and compelling reasons. Also provided with the submission are relevant letters and medical reports relating to the applicant’s son’s disability and both his, and his son’s, mental health circumstances in 2013-2014.
On 11 April 2017 the delegate sent the applicant a new NOICC which, it states, supersedes the one sent on 15 August 2016. This notice is identical to the earlier one, up to the section titled Particulars of possible non compliance, where it provides the more detailed particulars of the incorrect information provided by the applicant in his protection visa application and explains the reasons this information is incorrect. Specifically, the notice particularised the non compliance in the following manner: That the applicant’s responses to questions in the protection visa applicant made in statements in his Statutory Declaration that he was of adverse interest to the Al Mahdi Army because they believed he was an informant to the Iraqi Army; that they had shot at his house and he will be harmed and killed if he returned to Iraq; that he would have no chance at survival if he went back to Iraq, that the authorities would not protect him and no where is safe for him; and that his son was kidnapped on 3 November 2010 by the Almahdi Army and he paid $[amount] for his release were incorrect because he voluntarily returned to Iraq in September 2012 and March 2015 and his son ravelled to Iraq in September 2012, under their own identities and without apparent harm, and that the applicant and his son have spent a total of 4 months and three months respectively in Iraq soon after being granted protection.
Did the notice comply with the requirements in s.107?
The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107. It finds that the first notice issued under s 107 in August 2016 most likely insufficiently explained how the information provided did not comply with s101, however the Tribunal accepts that the subsequent notice, issued on 11 April 2017, complied with the statutory requirements.
Other information - ITOA Assessment
In November 2016 the Department commenced an International Treaties Obligations Assessment (ITOA) and sent the applicant two procedural fairness letters on 23 and 25 November 2016 inviting comment on several matters, including
·Request for further evidence of stay in Erbil and clarification of the name recorded in the rental agreement provided.
·Query about claim to have stayed in Najaf for Dinars 1500 for a period of one month and request for further evidence of stay in Najaf.
·Report of [Dr B], Psychologist provides details relating to applicant’s history in Iraq which is inconsistent with claims made applicant’s protection visa application.
·Claims to have served in the Iraqi Army and fears of harm from Al Mahdi Army in the protection visa process.
·DFAT country information from 2015 indicates many Iraqis who had sought asylum overseas had returned to southern Iraq and there was no information anyone had faced significant problems.
·DFAT Country Information Report 2015 provides no information that Shia milita are targeting members or former members of the ISF or their families in Basra and that the southern areas of Iraq are predominantly Shia Mulsim and they face low risk of generalised violence and therefore it is safe for the applicant to reside there.
·Photograph dated 2012.12.11 submitted by the applicant’s wife in her Humanitarian visa application in front of a mosque
·Inconsistent information about the applicant’s wife’s residential history provided in her Humanitarian application and the applicant’s protection visa application which suggests that she and the children remained residing in the family home in Basra whereas he claimed they moved from there in December 2010 and were with her father.
·Information about the applicant’s history indicated in a [Welfare Agency 1] letter dated 14 August 2012 provided for the applicant’s wife’s Humanitarian visa application that is inconsistent with claims made in his protection application.
·Evidence of an Iraqi visa issued to the applicant on 12 September 2012 by the Embassy of Iraq, Sydney provided for the applicant’s wife’s Humanitarian visa application which appears to be inconsistent with his claim not to have entered Iraq in 2012.
The applicant provided a response to the ITOA procedural fairness letters on 14 December 2016. The applicant provided responses to the concerns referred to in the letter, clarifying that Dinars 1500 was in fact USD$1500 for the stay in Najaf; confirming that he served in the Iraqi Army and had provided his Minister of Defence ID card from the beginning; and that he remains fearful for his safety in Basra due to his particular history of work with the Iraqi Army and being trained by [coalition forces]. The applicant states, in relation to the photo indicating the date 2012.12.11 provided in his wife’s humanitarian application, that the photo was taken in 2009 or 2010 and was in front of the Imam Hussein Shrine in Karbala. It is submitted his camera had an issue and was recording the wrong years. He reiterates the information he originally provided about his family’s residential history. He does not know why the [Welfare Agency 1] report stated what it did. The applicant said someone facilitated him to enter Iraq with that visa and he entered Iraq and lived in Erbil the entire time of his visit.
The ITOA for the applicant was finalised on 31 January 2017 following consideration of the above matters and the applicant’s responses, with a finding that the non-refoulement obligations are not engaged in respect of the applicant.
On 8 August 2017 a delegate of the Minister made a decision to cancel the visa, having considered the applicant’s response to the NOICC and the matters relevant to exercising the discretion whether or not to cancel the visa.
Evidence before the Tribunal
On 16 November 2018, the Tribunal received a submission from the applicant’s representative. The submission makes the following points (in summary)
·The NOICC issued on 15 August 2016 was invalid for not being sufficiently particularised under s107(1)(a) of the Act. Detailed submissions addressing reasons and authorities in support of this argument are provided.
(The submission does not however address the subsequently issued NOICC dated 11 April 2017 which specifically states that it supercedes the earlier one)
·If the Tribunal’s view is that the NOICC is valid, the submission addresses the delegate’s reasons for cancelling the visa, referring to the response to the NOICC provided to the Department and supporting evidence submitted. The applicant denies he breached s101 because he continues to have fear of persecution in Iraq. The trip to Iraq in 2012 was for the purpose of taking the applicant’s son to see his mother prior to having a significant operation, he stayed in Erbil the entire period; the trip in 2015 by the applicant was in the context of his brother’s serious illness which ended in death. Evidence was submitted to support these claims, including entry and exit stamps fro passports, receipts for accommodation in Erbil and Najaf city, medical reports and death certificate for the applicant’s brother.
·The delegate’s conclusion rejecting the applicant’s claim to have only stayed in Erbil during the first trip and rejecting the evidence provided, was illogical and unreasonable. The applicant provided evidence he flew into and out of Erbil and rented accommodation there and there was no logical basis for rejecting this evidence and concluding that it does not establish he was in Erbil for this period as claimed.
·Regarding the Iraqi visa issued to the applicant in September 2012, it is submitted that the applicant acknowledged that a person facilitated the issue of this visa to him and he used it to enter Erbil so as not to have any trouble at the airport. It was submitted that if he entered elsewhere in Iraq he would not have needed a visa to get into his own country. It is pointed out he did not get a similar visa when he visited Najaf the second time because he did not need a visa.
·Regarding the delegate’s conclusion on the basis of the photograph recording the date 2012.12.11 that the applicant was in Karbala during his 2012 visit, it is submitted that the applicant’s response that this was due to camera error and acknowledgement that the photo was taken in Karbala in 2009 or 2010, is a reasonable and credible explanation and refers to various websites discussing the issue of cameras that wrongly record dates.
·The submission takes issues with a number of the delegate’s conclusions on the basis of them being made without evidence, overlooking relevant evidence and other legal errors.
·The submission argues that the applicant’s travel to Iraq in 2012 and 2015 was not ‘without impediment’ in that he travelled to Erbil in the first trip which is practically not controlled by Shia militias ; his travel to Najaf in 2015 was far from his home town Basra and he travelled on his Australian travel document. Neither of these acts are inconsistent with his original claims for protection which he maintains.
·The delegate’s reliance on the allegedly inconsistent statement regarding past harm in [Dr B]’s report is invalid because this report is not part of the protection visa application, it was an error made by [Dr B], in any event the applicant maintains it was not incorrect as he was imprisoned in 1999 for 3 months also but just never mentioned it in his protection claims because it was not relevant at that time.
·The submission concludes that the applicant did not given any incorrect information in his application. He travelled back to Iraq for a total of 4 months in the past 7 years. He came to Australia due to a well founded fear of persecution in Iraq and continues to have that fear. Country information relating to the circumstances in Basra now is provided, including references to DFAT’s 2018 Country Information Report.
On 22 November 2018, the applicant’s representative provided a substantial number of supporting documents:
·Photo and translation of grave headstone of [an individual who], died 28.3.2008
·Various medical and psychiatrist reports relating to the applicant. eg. reports by [Dr C], dated 24 September 2016 and 10 November 2018
·Various medical and psychiatrist reports relating to applicant’s wife (eg. [a doctor’s report], dated 26 October 2018, Hospital Discharge 30 October 2018 – indicating applicant’s wife is pregnant and due to deliver [later in] 2018
·Various reports relating to applicant’s son, [Child 1]’s medical conditions and [implant] assessment reports, and school welfare reports (including reports dated 13 July 2018 and 31 October 2018 from [a] Consultant Paediatrician setting out the complicated history of his medical issues and conditions and indicating that he needs tertiary medical care unlikely to be offered in his home country of Iraq.
·Letter from [Welfare Agency 2] relating to an assessment undertaken on children of applicant due to child protection concerns, expressing concern for [Child 1] of being removed from Australia due to his hearing and other disabilities and stating that from a child protection perspective, it is in the family’s best interests to remain in Australia where [Child 1]’s needs can be appropriately met.
·Letter from [Welfare Agency 3] regarding the applicant’s active involvement and volunteer community activities with the centre.
·Evidence of applicant’s enrolment at an English course at [a college] in August 2018.
·Document and translation, of separation of applicant and his children from father and brothers dated 8 November 2016.
·Various documents and translations regarding properties in Basra owned by the applicant, including a contract evidencing sale of a property [in] March 2016 (using a [relative] as authorised agent), and another indicating registration of land [in] June 2006.
·Letter dated 19 September 2016 from, [an agent of Welfare Agency 1], referring to applicant’s explanation for visit to Iraq in 2012.
·Australian Citizenship certificate for applicant’s son [Child 2] born [date]
·Photo and translation of grave headstone of [Mr A], died 31.3.2015
·Letter dated 5 November 2018 from [a] Family Support Worker, [Welfare Agency 3], stating that she has worked with the applicant for over 5 years and referring to his reasons for travelling to Iraq in 2012 with his son.
Tribunal hearing
At the hearing the Tribunal took oral evidence from the applicant. He lives [with] his wife and 5 children. His wife gave birth to a baby daughter, [prematurely] , following late stage complications with the pregnancy. She is now at home, but the baby will remain in the hospital for [a short period]. The applicant is not presently working, but has plans to open a new [business] with a business partner soon. He has been attending [college] to obtain skills as [an occupation]. His three eldest children attend [school]. The other two children are infants.

The applicant gave evidence about the circumstances leading to his arrival in Australia and claims for protection. He recounted his background as a soldier with the Iraqi army, having trained under the supervision of [coalition forces from Country 1] and, after completing his training he worked with a brigade that included [forces from Country 2]. He was responsible for taking [Country 2 forces] around his area and because of this members of the Al Mahdi Army militias considered him an informant. In November 2010 his son [Child 1] was kidnapped by the Al Mahdi Army and they demanded a ransom. After his brother negotiated with the kidnappers they paid $[amount] and he was released. Some days later while he was still working for the military, on 15 November 2010, shots were fired at his house. After that the applicant and his family went to live with his wife’s parents but his in laws were not very happy about the situation. The applicant made arrangements to leave Iraq with his son, [Child 1], and they arrived in Australia in July 2011 and sought protection. The Tribunal noted that this account is substantially the same as the claims made in his protection visa and asked him if he maintains the truth of the claims made in his application. He indicated that he did.
The Tribunal asked him why, in the report of his psychiatrist, [Dr C], dated 24 September 2016, under “personal history” it is stated that he ‘refused to enlist in the Iraqi army and spent time in hiding’. It put to him that this appears to be inconsistent with the account he just gave and his claims in his protection visa. In response he stated that the statement in the report is incorrect and he does not know why [Dr C] would have stated this. He maintains that he was enlisted as a soldier and has provided evidence of this in his protection application. He recalls he also discussed with [Dr C] his background as a soldier in Iraq. The representative, in his submissions to the Tribunal, argued that the information in [Dr C]’s report, to the extent that it is incorrect, was not information provided in the applicant’s protection visa application and therefore has no relevance to the issues arising in this cancellation review.
The Tribunal asked the applicant about his return trips to Iraq after he was granted protection. He stated he went back in September 2012 with his son, [Child 1], because of issues his son was having. He had numerous health problems at the time,[details deleted]. His son was also not doing well mentally and the applicant was trying his best to manage. His mother desperately wanted to see her son. All the professionals helping him at the time urged him to take [Child 1] to see his mother. When he went to the Australian authorities he was told he would need to have the consent of his mother to travel. For this reason she had to attend the Australian embassy to provide her consent. The applicant said the Australian authorities were aware of the circumstances underlying this visit at the time and his wife explained at the embassy that they would not be coming to Basra because of the risk to him there, and they would travel only to Erbil.
The applicant said they travelled from Australia to [Country 3] and from there to Erbil. The Tribunal asked the applicant about the visa indicated on his travel document, which was issued in Australia in September 2012. He said he was facilitated to get this by a relative who worked at the Iraqi Embassy. He did not go there himself. He got the visa from here to make it easier to enter Erbil, because he does not speak the language there and did not want problems. He confirmed that he did not go through the same process for his second visit to Iraq in 2015 because he went to Najaf that time and he speaks the language there and had no problems entering.
The applicant said when he was in Erbil in 2012 with his son they remained there the entire period. His wife and [children] met them there, accompanied by the applicant’s [brother]. The Tribunal asked the applicant if he has any other evidence of his stay in Erbil, such as photos of the family there. He said they did not take photos because of their situation, they were worried throughout the time they were there and limited the time they spent outside. They did not do very much and did not travel anywhere else in Iraq. He said they had two photos of the family together taken in a studio for the purposes of his wife’s visa application. He agreed to provide a copy of this to the Tribunal.
In 2015 the applicant went back to Iraq because his mother was very ill and she is very old. He was not thinking rationally at this time and just wanted to see his mother. He travelled from Australia to [Country 3] and from there to Najaf. She came to Najaf to see him. His elder brother [Mr A] also came to Najaf and he saw him there. After [Mr A] left, he returned to Basra and suffered a heart attack and died, in March 2015. The Tribunal asked the applicant how his elderly, ill mother was able to travel so far to Najaf from Basra. He said in reply that she is old and unwell but not unable to travel at all and she came because it is a scared place and she wanted to see him. The applicant stated that he never went to Basra on either of these visits because it is too dangerous for him there.
The Tribunal discussed with the applicant and his representative the issues relating to the validity of the notices to consider cancellation (NOICC) sent by the Department. The applicant confirmed that he received two notices, one sent in August 2016 and one in April 2017. He responded to the first notice through his representative. He was unsure whether a response was made to the second notice, as he relied on the advice of his representative about this.
The Tribunal discussed this issue with the representative, noting that detailed submissions had been made relating to the first NOICC but no mention was made of the second NOICC sent in April 2017 which purported to supersede the earlier one. It put to him that its preliminary view was that this second NOICC was valid. The representative confirmed that this notice was received but submitted that, in his view, the second notice was invalid for the same reasons he argued in respect of the first notice. He argued the second NOICC, though more detailed that the first, still contained insufficient particulars to support the conclusions reached that the applicant’s responses to the particular questions in the Protection visa form and statements made in his Statement of Claims were incorrect. He argued that it failed to indicate with sufficient particulars such as relevant country information to support the conclusion that the information provided by the applicant was incorrect. The representative undertook to provide further submissions on this issue within one week.
The Tribunal explained to the applicant that the first matter it must consider is whether the NOICC issued to him was valid. If it found that it was, then it would proceed to consider whether there has been non compliance in the manner described in the notice. If it accepted the notice as valid and found there was non compliance in the manner described, then it would go on to consider whether the visa should be cancelled having regard to prescribed matters set out in the regulations. The Tribunal noted substantial material addressing the exercise of the discretion had been provided already in submissions and supporting documentation and asked the applicant if there was anything else he wanted the Tribunal to consider.
The applicant said his wife gave birth prematurely as a result of the stress of this situation. He referred the Tribunal to all of the information concerning the health circumstances of himself and his family members. He stated that he has been studying [English] and he is in the process of starting a new business.
The applicant asked the Tribunal to hear a few brief words from his children who were in attendance at the hearing, [Child 3] and [Child 4]. The children pleaded with the Tribunal to please consider their circumstances and help their family because this issue is causing their parents a lot of stress and unhappiness.
On 27 November 2018 the applicant’s representative emailed the Tribunal to advise that, having further considered the NOICC dated 11 April 2017, he agreed with the Tribunal’s preliminary view that it was valid. He also submitted a copy of the family studio photo the applicant referred to during the hearing.
CONSIDERATION
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.
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. In this case two separate notices (NOICC) were issued dated 15 August 2016 and 11 April 2017. The second NOICC specifically stated that it superseded the earlier one and the Tribunal has considered the validity of this latter NOICC.
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.
The questions for determination are therefore:
(1)Was the delegate entitled to issue the notice under s.107, namely is the Tribunal satisfied that the delegate reached the necessary state of mind to engage s.107?
(2)If the answer to (1) is yes, was the notice valid?
(3)Was there non-compliance by the visa holder in the way described in the notice?
(4)If the answer to (3) is yes, how should the discretion to cancel be exercised?
In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. The applicant’s representative initially argued that both of the notices issued by the delegate were invalid on the basis of providing insufficient particulars. Following the hearing, he conceded that the second notice was likely to be valid.
Did the notice comply with the requirements in s.107?
For the following reasons, the Tribunal has reached the conclusion that the notice of 11 April 2017 is valid.
The Tribunal accepts that the delegate reached the necessary state of mind to issue the NOICC because the delegate expressly stated in the NOICC that he has formed the view that there has been non-compliance and there is some basis for his findings (regardless of the strength or logic of this basis). The Tribunal accepts that the delegate reached the required state of mind.
The next question relates to the sufficiency of the notice. That is, whether the notice included particulars of the possible non-compliance. In the present case, as indicated above, a subsequent NOICC was issued by the delegate on 11 April 2017 which superseded the earlier one and therefore it is this NOICC which the Tribunal is assessing for its validity.
The NOICC referred to the applicant’s answers to questions 45-51 in his Protection visa application on 5 December 2011 and accompanying Statutory Declaration setting out his statement of claims. It then referred to evidence of the applicant’s two trips back to Iraq in 2012 and 2015, and his son’s trip back with him in 2012. The NOICC went on to provide particulars of the non compliance with section 101 in the following manner: the applicant claimed in his protection visa application that he was of adverse interest to the Al Mahdi Army in Iraq because they believed he was an informant to the Iraqi Army; that they kidnapped his son and he paid $[amount] for his release; that they shot at his house and he will be harmed and killed if he returned to Iraq and he would have no chance of survival so he cannot return to Iraq. The delegate considered these answers in his application to be incorrect because he voluntarily returned to Iraq in September 2012 and March 2015 under his own identity and without apparent harm and his son also travelled under his own identity and was not harmed. The delegate referred to the applicant having spent a total of 4 months and his son, having spent 3 months, in Iraq since being granted a protection visa on 8 December 2011.
The applicant’s representative argued in his written submissions, in respect of the earlier NOICC issued on 15 August 2016, did not provide adequate particulars of the possible non-compliance alleged and was therefore invalid. The Tribunal notes that the earlier NOICC referred only to “incorrect answers in Form Part C” and provided nothing further under the heading “Particulars of the possible noncompliance.” At the hearing the representative further submitted that the subsequent NOICC issued on 11 April 2017, which it was acknowledged the applicant received, was also invalid for the same reasons. The representative argued that, while this subsequent notice provided further details of specific claims made in the responses to Form Part C questions under the heading “Particulars”, there was no country information or other basis for the allegation that the applicant’s statements were incorrect, other than the fact of the return visits without apparent harm, and on this basis the applicant could not adequately respond to the case against him. However following the hearing he provided no further argument to support this view and conceded that the subsequent notice was probably valid.
The Tribunal has considered the arguments and submissions and relevant case law authorities relating to the issue of the role and sufficiency of particulars. These authorities establish that sufficiency of notification is to be tested by reference to the statutory purpose. It must be sufficient to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open.[1] It would not be enough to generically claim that the visa holder has breached a section of the Act without giving particulars of the facts and circumstances which are said to give rise to the possible breach of the particular provision.[2] Simply identifying the statutory provision not complied with would not be an adequate provision of particulars for s.107(1)(a).[3]
[1] Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25]. In that case the Court was considering the requirements of s.119 notifications for the purposes of Subdivision D cancellation but the principle would be equally applicable to s.107 notifications. The decision was cited with approval by the Federal Court in MIAC v Brar (2012) 201 FCR 240: see [57]-[58], a decision that was concerned with a s.107 notification.
[2] Zhong v MIAC (2008) 171 FCR 444 at [80].
[3] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004) at [43]-[44].
It has also been observed by the Court that consideration of whether particulars provided in a notice under s.107 are adequate to satisfy paragraph (1)(a) cannot be separated from the task of the decision-maker under s.108(b) to decide whether there was ‘non-compliance in the way described in the notice’: SZEEM v Minister for Immigration.[4] In particular, Smith FM (as he was then) observed at [37] as follows:
The scheme of decision making is that the decision-maker must address only the particulars of non-compliance which were formally notified to the applicant in the notice which initiated the cancellation action. The statutory context, in which the person may be deprived of permanent rights of residence and citizenship, explains the legislature’s concerns: (i) that proper notice must be given; (ii) that the notice must contain “particulars”; and (iii) that the power of decision should be defined by reference to a finding based on those particulars and no others.
His Honour further opined at [38]:
In relation to an allegation that a general statement was made falsely, the requirement of particulars must, in my opinion, also encompass particulars of the basis on which the falsity is alleged, these must be given with enough detail to allow this recipient a real opportunity to understand and attempt to answer the non-compliance allegation.
And at [43]:
I therefore consider the Tribunal would fail to exercise its jurisdiction if it decided that there was “non-compliance by the visa holder” by reason of the falsity of statements identified in the s 107 notice, where its conclusions as to falsity relied wholly or in part upon adverse findings concerning matters which had not been squarely raised by particulars provided in the notice. I consider in the present case that s 108(b) required the Tribunal, when deciding whether the applicant’s statements falsely claimed a fear of persecution if returned to Jordan, to confine the basis of its decision to the particular allegations which were raised in the s 107 notice as discussed above.
[4] SZEEM v Minister for Immigration [2005] FMCA 27, relying on Allsop J in Saleem v Migration Review Tribunal [2004] FCA 234
In Saleem, Allsop J found that the Tribunal had purported to exercise a power which was not authorised under s.109 by asking itself the wrong questions under s.108(b). Asking whether the applicant had in fact breached s.101 was in error.[5]
[5] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004) at [61]
The Full Court of the Federal Court in Minister for Immigration and Citizenship v Brar [2012] FCAFA 30, observed at [56]:
A notice under section 107 of the Act is not a criminal charge or a pleading in a civil action. The notice must contain, among other things, particulars of possible non-compliance then the decision-maker under s 108 must decide whether there has been non-compliance in the way described in the notice.
Having regard to the above authorities, the Tribunal considers that the case law established that, if particulars of non-compliance in a notice set out reasons why the information identified is said to be incorrect and therefore in non-compliance with s.101(b), this will be sufficient to satisfy s.107(1)(a). However, it is not enough to set out the information provided by the visa holder and thereby seek to incorporate them as particulars. The NOICC must identify the way in which this information is said to be incorrect. These are the particulars against which the decision-maker must assess s.108(b). The narrower the particulars which ‘describe’ the non-compliance, the more specific the enquiry under s.108(b) as to whether there has been non-compliance in the way described in the notice, although minor or insignificant departures would not invalidate the process.
In this case, the Tribunal finds that the NOICC particularises the possible non-compliance as providing incorrect information that the applicant was of adverse interest to the Al Mahdi Army in Iraq on the basis of their belief he was an informant to the Iraqi army; that his son was kidnapped and his house was shot at; and that he would be harmed and killed and could not go back to Iraq, which was said to be demonstrated to be incorrect by the fact the applicant had returned twice under his own identity and without apparent harm. The Tribunal considers that given that the notice has identified the specific claims that are alleged to be incorrect information and indicated reasons for why it is alleged to be incorrect (ie. his return trips to Iraq under his own name and without apparent harm). Though there may be flaws in the reasoning described in the notice (discussed further below), such flaws do not invalidate the notice.

Accordingly, the Tribunal is satisfied that the NOICC complies with s.107. It contains all of the matters required as set out in s.107 and includes particulars of the possible non-compliance that were sufficient for the applicant to know the case he was required to meet.
For these reasons 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?
The Tribunal now turns to the issue of 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 applicant responded to the NOICC maintaining that he did not provide incorrect answers in his protection visa application, he continues to have a fear of persecution in Iraq and explaining the reasons for, and the circumstances surrounding his return, for which he provided supporting evidence. The applicant also provided additional information and documents relating to the circumstances of his own and his son, [Child 1]’s health and disability, relevant to the exercise of the discretion.
The delegate considered those matters and nonetheless found that there had been non-compliance in the way described in the notice under s.108(b). The Tribunal has formed a different view and its reasons follow.
As indicated in the discussion above, in the present case the Tribunal’s consideration is limited to consider whether there is non compliance with s101(b) in the manner particularised in the s.107, as set out earlier in paragraphs 12 and 41. That is, whether the applicant’s claims that he was of adverse interest to the Al Mahdi Army in Iraq because they believed he was an informant to the Iraqi army, and that his son was kidnapped, and his house was shot at, and that he would be harmed and killed and could not go back to Iraq were incorrect because of his return visits to Iran in 2012 and 2015, under his own name, and without apparent harm.
With regard to the onus of establishing non-compliance, it is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[6] However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal).[7] Although the visa holder must be invited to show that the ground 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. at [25]:
‘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.’ [8]
[6] 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.
[7] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].
[8] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000). While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.
In a case such as the present, in deciding whether the ground for cancellation is made out the Tribunal also considers it is appropriate to bear in mind the nature of the allegations and the gravity of the consequences[9]. In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his protection visa application are serious.
[9] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 and Sun v Minister for Immigration and Border Protection [2016] FCAFC 52. Eg. The Court in Sullivan observed at [120] ‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. 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.’
Having considered the NOICC and the applicant’s response, and evidence given to the Tribunal in submissions and at hearing, the Tribunal makes the following findings.
The Tribunal accepts that the applicant returned to Iraq in September 2012 with his son, [Child 1]. It accepts, on the basis of the written and oral evidence and supporting documents including documentation from the applicant’s son’s school and reports from Dr [D], and Psychologist [Dr B], that the purpose of the trip in September 2012 was primarily for the applicant’s son to reunite with his mother because he was experiencing significant mental health concerns and difficulties settling in Australia and missing his mother and siblings. The Tribunal accepts that a reasonable, compassionate and compelling reason has been provided for the travel back to Iraq in 2012.
The Tribunal accepts on the evidence that the applicant and his son entered and departed from Erbil, in Iraqi Kurdistan, an autonomous region governed by the Kurdistan Regional Government (KRG). Country information before the Tribunal indicates that the security situation in Iraqi Kurdistan was better than other parts of Iraq[10]. The applicant gave written and oral evidence that they stayed in this area throughout their time there and provided a rental receipt and entry and exit stamps from their travel documents in support.
[10] See for example, DFAT Country Report on Iraq 29 November 2013 para 2.17, 2.27 and Danish Refugee Service, The Kurdistan Region of Iraq Access, Possibility of Protection, Security and Humanitarian SituationReport from fact finding mission to Erbil, the Kurdistan Region of Iraq (KRI) and Beirut, Lebanon 26 September to 6 October 2015, para 3.1, p28
The Tribunal notes the delegate was not satisfied of the reasons given by the applicant or his claim that he stayed only in Erbil, on the basis that he did not provide sufficient evidence to support this claim. The Tribunal explored this further with the applicant at the hearing. When asked if he had any other evidence of his stay in Erbil during this period, such as photographs, he told the Tribunal the purpose of their visit was only to see the family and they were very scared for their safety and only went outside in limited periods, and given this context he was not taking photos as one may in an ordinary holiday context. He said the only photo they took was a family studio photo, a copy of which he provided after the hearing. The Tribunal compared this photo with the family photo date stamped 2012.12.11 taken in front of a mosque, provided to the applicant for comment by the ITOA delegate. The applicant argued the latter photo was taken in 2009 or 2010 in front of the Imam Hussein shrine in Karbala and that his camera had a problem with incorrect dates. He repeated this explanation to the Tribunal at the hearing. However, when considering this photo alongside the studio photo provided to the Tribunal that the applicant acknowledged was taken during this trip, the Tribunal has some concerns about the applicant’s assertion that the earlier photo was taken in 2009 or 2010. Specifically, it observes the children appear to be the same age in both photos, contradicting his claim that one was taken 2-3 years prior. It also observes that the applicant’s youngest son,[Child 4], was born in April 2010 and the image of him in the date stamped photo is more consistent with being taken in November or December 2012 than 2009 (prior to his birth) or 2010 (when he would have been an infant) as claimed by the applicant. Therefore, the Tribunal finds that it is more likely the photo date stamped 2012.11.12 was taken during the applicant’s visit at that time. He gave evidence that it was taken in front of the Imam Hussein shrine in Karbala, which indicates that he and his family travelled to Karbala during this visit. However, apart from this, there is no other evidence before the Tribunal to indicate he travelled anywhere else, or more relevantly, to Basra, in this period, and therefore there is no basis for the Tribunal to make a finding that he, or his son, went to Basra during this visit.
In respect of the second trip in 2015, the applicant claims he returned on this occasion to visit his elderly, ailing mother and his brother, who subsequently passed away. He claims he travelled directly to Najaf and stayed there for the entire period of his visit. In support of this he provided evidence of the entry and exit stamps from his travel document and a receipt for accommodation for the full period of stay. The Tribunal is satisfied that this evidence supports the applicant’s claim. While it had some doubts about how his elderly ailing mother was able to travel the distance from Basra to Najaf to meet the applicant, it acknowledges that there is no other evidence before the Tribunal to support a finding that he went to Basra during this period and the applicant adamantly denies that he did and there is no basis for the Tribunal to find otherwise.
Therefore on the evidence and findings above, the Tribunal accepts that the applicant travelled back to Iraq in 2012 and 2015 for a total period of some 4 months. It accepts that legitimate, reasonable and compelling reasons have been provided for the visits on each occasion. There is no evidence before the Tribunal to support findings that he went to, or visited, Basra at any time during those visits.
The Tribunal has also considered the applicant’s claims in his original protection visa application. He maintains that those claims are truthful and correct and he gave the Tribunal at the hearing a substantially consistent account of the reasons he left Iraq and the incidents that occurred at that time. The Tribunal observes that the delegate’s reasons in the original POE assessment indicates his claims were assessed as genuine and credible and consistent with country information as at that point in time. Specifically, country information supported that Iraqis in the applicant’s situation were at risk of persecution by militia groups in the south of Iraq at that time.
The Tribunal considers that the evidence of which he was given particulars in the NOICC issued to him on 11 April 2017 does not reasonably support a finding that the claims made in that application were incorrect. On the findings made above, the Tribunal is of the view that the evidence of his return trips to Iraq do not substantiate a conclusion that he was not of adverse interest to the Al Mahdi Army in Iraq or that his son was not kidnapped, or his house was not shot at, or that he was not at risk of harm upon return to Iraq. The Tribunal accepts that the applicant continued to fear for his safety despite his trips back to Iraq on these occasions. It also accepts, on the evidence before it, that he took appropriate precautions, avoiding Basra, and that he had compassionate and compelling reasons for his travel.
For these reasons, the Tribunal is not satisfied that there was 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. However notwithstanding this, the Tribunal observes that there are significant compelling and compassionate circumstances, particularly relating to the impact of cancellation on the applicant’s five young children that the Tribunal considers weigh significantly against cancellation in the present case. In particular the eldest child has significant medical issues, a profound disability and has made considerable and positive progress in his education and development these past seven years in Australia; his sister and brother have now lived in Australia for five formative years in their young lives, and the two youngest children are Australian born citizens, and the best interests of all of these children in terms of future prospects for their health, education and safety is far more likely to be in Australia than Iraq in the reasonably foreseeable future.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Meena Sripathy
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.

[2018] AATA 5536

3 December 2018

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