1718259 (Refugee)

[2019] AATA 792

1718259 (Refugee) [2019] AATA 792 (10 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718259 & 1710682

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Alison Murphy

DATE:10 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decisions under review and substitutes decisions not to cancel the applicants’ Subclass 866 (Protection) visas.

Statement made on 10 April 2019 at 11:54am

CATCHWORDS

REFUGEE – cancellation – protection visa – Iraq – religion – Shia Muslim – imputed political opinion – family member of informer against Sunni extremists – incorrect answers on form – multiple visits to Iraq after protection visa granted – incorrect date given of death of relative – best interests of the child – contribution to the Australian community – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 36, 101, 107, 109, 119, 438, 499

Migration Regulations 1994 (Cth), r 2.41

CASES
DMH16 v MIBP [2017] FCA 448
Gido-Christian v MIAC [2007] FMCA 825
MIAC v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
Saleem v Migration Review Tribunal [2004] FCA 234
Sheptitskaya v MIBP [2015] FCCA 159
SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27
Zhao v Minister for Immigration and Multicultural Affairs [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 applicants’ Subclass 866 (Protection) visas under s.109(1) of the Migration Act 1958 (the Act).

2. The applicants are a father and son from Basrah, Iraq and are aged [age] and [age] respectively. They arrived in Australia by boat in November 2010 and each made their own claims for protection. They were separately assessed to be refugees and granted protection visas on 7 July 2011.

3. In 2017, a delegate of the Minister decided to cancel their visas. In each case the delegate cancelled the visas on the basis that the applicants breached s.101 of the Act by providing incorrect answers in their protection visa applications about their adverse profile and fear of persecution in Iraq.

4. The cancellation cases were separately considered and determined by the delegate. At the request of the applicant’s representative, and in light of the similar facts and serious health concerns in respect of the applicant father, the Tribunal heard and determined both matters together.

5. The applicants appeared before the Tribunal on 27 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [name], the wife of the second named applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

   ISSUES FOR DETERMINATION

7. The issues in this case are:

   ·    whether the s.107 notices sent to each applicant are valid;

   ·    if so, whether the ground for cancellation is made out in respect of either or both applicants; and

   ·    if so, whether the visas should be cancelled.

8. For the following reasons, the Tribunal has concluded that the decisions to cancel the applicants’ visas should be set aside.

   LEGISLATIVE FRAMEWORK

9. 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.

10. 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.

    Non-disclosure certificate

11. The Tribunal has before it the applicants’ departmental files, including the files relating to their visa cancellations. In the case of the applicant son, the delegate has placed restrictions on some of the material given to the Tribunal by the Department by certifying that disclosure of the material is contrary to the public interest under s.438 of the Act.

12. Where a certificate is issued under s.438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.

13. A copy of the non-disclosure certificate was provided to the applicant son at hearing and he was invited to comment on its validity. I have not provided a copy of the certificate information to the applicants, however at hearing I advised the applicants the certificate related to information received from an apparently anonymous informant received in November 2016. The information suggested the applicant son had given false information to the Department when he arrived in Australia, that the applicant son’s mother, [and siblings] remained living in Iraq and the applicant son and his father had returned to Iraq looking for a way to bring the rest of the family to Australia to join them. At hearing the applicant son said he believed that information may have been provided by a disgruntled former employee who had also made complaints to Worksafe, which had conducted an investigation before dismissing those complaints.

14. In post hearing submissions the applicants’ representative acknowledged that the s.438 certificate appeared to be valid on its face, but urged the Tribunal to give the information covered by that certificate no weight on the basis it appeared to be malicious and anonymous.

15. I am satisfied the s.438 certificate is valid. The information covered by the certificate appears to be a database entry containing information from an unidentified informant in November 2016. I am unable to ascertain from the database entry whether the informant identified him or herself at the time of providing the information or whether that information was received in writing, by phone or in person.  Much of the information relates to matters which are either not in dispute (such as the applicants’ returns to Iraq and their desire to bring their remaining family members to Australia) or not relevant to these proceedings. In such circumstances I give that information little weight.

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

16. The applicants were issued separate s.107 notices.

    The applicant son

17. The s.107 notice was issued to the applicant father on 7 March 2016.  It stated that he arrived in Australia as an illegal maritime arrival [in] November 2010 and applied for a protection visa on 1 July 2011. It stated that as part of this application he provided a completed Form 866 – Application for a Protection (Class XA) visa.

18. The s.107 notice set outs the applicant’s responses to the questions in the Form 866, noting they referred to all information provided in support of his request for refugee status assessment including (but not limited to) the applicant’s statutory declaration made 24 February 2011 and his interview on 25 February 2011. It sets out verbatim the full text of that statutory declaration, which runs to three pages. The information in that statutory declaration can be summarised as follows:

    ·He believes he is owed protection by Australia because he has suffered and continues to fear persecution on the basis of being a family member of a person who was an informer against the Sunni extremists and because of his religion.

    ·He was born in Basrah on [date] and he is a Shia Muslim and a Sunni extremist. His father was a [Occupation 1] for 35 years at [a location] and his mother was a house wife. Life was peaceful growing up and he has [several] siblings. He fled Iraq together with his father for their safety  [in October] 2010, arriving at Christmas Island [in November] 2010;

    ·From about September 2010 there were serious problems for his family after his brother [Mr A] who worked as a [Occupation 2] saw a Sunni exremist setting an explosive and reported him to the police.  He told some of his passengers what had happened and the family was later threatened by Sunni extremists who came to their home. [Later in] September 2010 his brother drove his car to work when it exploded, after Sunni extremists planted a bomb in it in retaliation for informing to the police. The family buried his brother the same day and while they were away the extremists returned to the house and wrote threats on it. When the family were returning home they were stopped by neighbours who warned them not to go home. That night the house was burned down and the family fled to a friend’s house in [City 1], [near] Basrah;

    ·His father arranged for he and his father to leave Iraq [in] October 2010. The rest of the family remained in [City 1] as they could not afford to take all of them. When his father calls his friends to check on his family they are told that Sunni extremists are still looking for them and if they knew where the family was they would be in great danger;

    ·The Iraqi government cannot protect them because it does not have control in Iraq. Extremist groups are free to carry out attacks against Shias. There is nowhere he can move to in Iraq to be safe as Sunni extremists are active across most of the country. Even if it were safe it is not possible for them to live elsewhere because they do not have connections or networks in other parts of Iraq. His father has done the same job for 35 years and would find it difficult to get employment elsewhere in Iraq.

19. The s.107 notice sets out that based on the above information, the applicant was granted a protection visa on 7 July 2011. He was interviewed on 14 April 2015, at which time he confirmed he had returned to Iraq for [surgery] and he had stayed with his mother in Basrah. Movement records and entry and exit stamps showed he had returned to Iraq between [November] 2013 and [January] 2014, [April] 2014 and [May] 2014 and [January] 2015 and [April] 2015, periods totalling 7 months.

20. The s.107 notice stated:

    Given this information it appears you do not have an adverse profile as claimed in your protection visa application. Given you have voluntarily returned to Iraq on three occasions for a significant amount of time without hindrance, it appears that you did not hold an adverse profile at the time of your RSA and protection visa application. It appears that you have provided incorrect answers on the Form 866, at questions 42, 43, 44, 45 and 46. As you have voluntarily returned to Iraq, the country from which you sought protection, it appears that you do not have a genuine fear of harm if you return to Iraq.

    Your protection visa was granted on the basis that you satisfied the Minister you engaged Australia’s protection obligations under the Refugees Convention. This determination was based on the information you provided in the statutory declaration and the Form 866. As the incorrect information provided was material to this determination it appears you may not have engaged Australia’s protection obligations.

    I consider that you have not complied with s.101(b) of the Act as you have provided incorrect answers to questions in your application and in information provided in support of your application for a protection visa. By failing to comply with s.101(b) of the Migration Act 1958 your subclass 866 Protection visa is liable for cancellation.

    The applicant father

21. The s.107 notice was issued to the applicant father on 27 July 2016.  It stated that the applicant arrived in Australia as an illegal maritime arrival [in] November 2010 and applied for a protection visa on 1 July 2011. It stated that as part of this application he provided a completed Form 866 – Application for a Protection (Class XA) visa.

22. The s.107 notice set outs the applicant’s responses to the questions in the Form 866, noting they referred to all information provided in support of his request for refugee status assessment including (but not limited to) the applicant’s statutory declaration made 24 February 2011 and his interview on 25 February 2011. It sets out the full text of that statutory declaration, which runs to three pages. The information in that statutory declaration can be summarised as follows:

    ·He believes he is owed protection by Australia because he has suffered and continues to fear persecution on the basis of his imputed political opinion and his religion and due to the consequences of a member of his family have informed against a Sunni extremist group;

    ·He was born in Basrah on [date] and lived there all his life. His father was a [Occupation 3] and his mother was a house wife and his life was peaceful growing up. When he grew up he became a public servant where he worked for 35 years as a [Occupation 1] at [a location]. He worked with the government and coalition forces and his security pass was issued by the coalition forces;

    ·He was unable to continue working because he and his family were threatened when his son saw a masked man plant a road bomb and reported it to the police [in September 2010]. The Sunni extremists learned of this through informants and came to the house and threatened to kill the family if they did not leave. They thought his son was supporting the government and coalition forces because of him having gone to the police. He believes the extremists were Wahabi, a Sunni group within Al Quaeda, and as a Shia family they were at great risk;

    ·[Later in] September 2010 his son [Mr A] got in his car which [exploded] down the road because the extremists had planted a bomb in the car. The family held a funeral on the same day. Neighbours told them the extremists had come back to the family home during the funeral. The family stayed with neighbours and that night their house was burnt down. [Later in] September 2010 the family left for [City 1] where they stayed with a friend while the applicant and his son [name] made arrangements to travel to Australia, beginning that travel [in] October 2010.

23. The s.107 notice sets out that based on the above information, the applicant was granted a protection visa on 7 July 2011. He then voluntarily returned to Iraq on four occasions for periods of one year, seven months, one year and three months between [September] 2011 and [March] 2016. He was interviewed by DIBP staff at Melbourne Airport [in] September 2012, [July] 2013, [February] 2015 and [March] 2016, confirming on each occasion he had returned to Iraq.  At the interview [in] February 2015 he also advised that he returned to see his wife and children, to spend time with his family and to apply for visas for his family to come to Australia.

24. The s.107 notice stated:

    Given this information it appears you do not have an adverse profile as claimed in your protection visa application. Given you have voluntarily returned to Iraq on four occasions for a significant amount of time without hindrance or issue, it appears that you did not hold an adverse profile at the time of your illegal maritime arrival and protection visa application. It appears that you have provided incorrect answers on the Form 866, at questions 42, 43, 44, 45 and 46 completed on 1 July 2011, specifically where you referred to the statutory declaration made on 22 February 2011. As you have voluntarily returned to Iraq, the country from which you sought protection, it appears that you do not have a genuine fear of harm if you return to Iraq as claimed in your protection visa application.

    Your protection visa was granted on the basis that you satisfied the Minister you engaged Australia’s protection obligations under the Refugees Convention. This determination was based on the information you provided in the Form 866. As the incorrect information provided was material to this determination it appears you may not have engaged Australia’s protection obligations.

    I consider that you have not complied with s.101(b) of the Act as you have provided incorrect answers to questions in your application and in information provided in support of your application for a protection visa. By failing to comply with s.101(b) of the Migration Act 1958 your subclass 866 Protection visa is liable for cancellation.

    Is the s.107 notice sufficiently particularised?

25. In the present case, there is a question as to whether the notices issued by the Minister’s delegate complied with s.107.  Section 107 of the Act states the requirements of a notice issued under that provision. If the Minister is of the view that a visa holder did not comply with s.101 of the Act (as asserted in the present case) subsection (1)(a) requires the notice to give “particulars of the possible non-compliance”.

26. In considering whether the NOICC in this case is sufficiently particularised, I note the Full Federal Court’s remarks in Zhao v Minister for Immigration and Multicultural Affairs:

    Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as maybe open . . . The overall purpose to be served by s 119 is procedural fairness and it is that which informs the construction and application of the section.[1]  

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

27. While Zhao dealt with s.119 of the Act rather than s.107 of the Act, the Full Federal Court noted in Minister for Immigration and Citizenship v Brar that the statements in the Zhao case “are of assistance in terms of the proper interpretation and application of s 107”.[2]  

    [2]    Minister for Immigration and Citizenship v Brar [2012] FCAFC [57].

28. The Court in SZEEM v Minister for Immigration went on to state:

    . . . the requirement of ‘particulars’ must, in my opinion, also encompass particulars of the basis upon which the falsity is alleged, and these must be given with enough detail to allow the recipient a real opportunity to understand and attempt to answer the non-compliance allegation.[3]

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

29. At hearing I discussed with the applicants the issue as to whether the s.107 notices were sufficiently particularised. It was submitted that the Tribunal ought to find the notices were sufficiently particularised, but that the ground for cancellation was not made out. It was submitted that while it was conceded that the Tribunal may conclude that the applicants’ breached s.101 of the Act by providing incorrect information in relation to the death of [Mr A/Mr B] (the eldest son of the family), the Tribunal ought not find the review applicants provided incorrect information in respect of their fears of returning to Iraq. Rather the Tribunal ought to conclude that the applicants’ return trips to Iraq were made in spite of those genuine fears, and in the interests of their family remaining in Iraq. I have considered carefully those submissions and the authorities cited.

1. The Federal Court of Australia explains the requirement for proper particulars in a notice under s.107(1)(a) as follows:

   It can readily be accepted that the cancellation of a visa, especially one granting permanency of residence, is a serious matter. It is against that background that one comes to ss. 107 and 109 of the Act. The provision of incorrect or false information and the use of ‘bogus’ documents being the matters, broadly stated, that are covered by ss.101, 102, 103, 104, 105 and 107(2) are also potentially very serious matters. It is easy to understand why the Parliament required some precision and specificity in the notice: s 107(1)(a). Particulars of non-compliance with ss.101, 102, 103, 104, 105 and 107(2) are what is called for. One does not give particulars of non-compliance with s.101 by saying . . . that s.101 has not been complied with. It is specifics (the particulars) of that non-compliance that are required to be given[4].

   [4] Saleem v Migration Review Tribunal [2004] FCA 234 (30 March 2004) at [43]

2. The Federal Magistrates Court held in Gido-Christian v MIAC [2007] FMCA 825 to the effect that when determining whether the notice is sufficiently particularised, a common sense application of s.107 should be applied.

3. For the following reasons I am doubtful that either of the s.107 notices contain sufficient particulars to comply with s.107(1)(a):

   ·The s.107 notices refer in each case to the applicants’ responses on the Form 866 at questions 42, 43, 44, 45 and 46. The applicant son responded to each of these questions with the statement “Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made on 24 February 2011 and my interview on 27 February 2011”. The applicant father provided an identical response, save that the dates of his interview and statutory declaration differed by a few days;

   ·As noted above, each s.107 notice reproduced the entire contents of the applicants’ statutory declarations. Significant parts of each statutory declaration relates to biographical information which is uncontroversial. The s.107 notice does not identify any particular part of those statutory declarations that is said to be incorrect. Rather it states in the most general terms that the applicants’ voluntary returns indicate they did not hold an adverse profile and provided incorrect information in their protection visa application and it appears they do not have a genuine fear of harm if they return to Iraq.

4. The s.107 notices lack any particulars about which of the applicants’ prior statements in their statutory declarations are now said to be incorrect. This raises doubt in my mind as to whether the notices comply with s.107(1)(a).

5. However I am mindful of the court’s statements in Gido-Christian v MIAC[5], in which the court held in the particular circumstances of that case that the s.107 notice provided sufficient information about the central notion of whether the claimed relationship was genuine, even though it did not identify a specific incorrect answer in the applicant’s material.

   [5] [2007] FMCA825

6. Applying the same reasoning in these cases, I find that the s.107 notices provided sufficient information about the central notions identified in the notice as being potentially incorrect, being whether the applicants had adverse profiles in Iraq at the time they arrived in Australia and made their protection visa applications and whether they had a genuine fear of harm in that country. For these reasons I accept the s.107 notices to be valid.

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

7. The notices under s.107 were sent to the applicant father and applicant son on 27 July 2016 and 7 March 2016 respectively. As set out above, they reproduced the statutory declarations lodged with their protection visa applications and noted they were granted protection visas on the basis of the claims made. The notices stated their protection claims appeared inconsistent with their voluntary returns to Iraq which suggested they did not hold the adverse profiles they had claimed to hold at the time they arrived in Australia and made their protection visa applications and they did not have a genuine fear of harm in that country.

8. The applicants were represented during the visa cancellation process. In each case their representative responded to the s.107 notices in the first instance by requesting more time to obtain the applicants’ immigration records and prepare a response. In each case the delegate responded to the effect that the provisions of the Migration Act did not allow for an extension of the response period, but noted that any information provided prior to the decision would be taken into consideration.

9. International Treaties Obligation Assessments (the ITOAs) were finalised in each case on 8 March 2017. Those assessments each state that a procedural fairness letter was sent to the applicants on 17 January 2017 (the ITOA letters), which set out among other things that information before the Department indicated the applicant father had lodged (or in the applicant son’s case, had been included in) an application for a subclass 202 (Global Special Humanitarian) visa on 18 May 2007 in which it was stated that the applicant father’s son [Mr B] was killed in a bomb blast after he reported suspicious activity to the Iraqi police, in contrast to his statement in his protection visa application that his son [Mr A] was killed in the same circumstances in 2010.

10. The ITOA letters went on to state that the fact the applicants made the same claim some three years apart led the author to question the credibility of those claims. This was said to be a reason to question whether the applicant had provided the department with truthful information.

11. The applicants responded to the letters seeking to explain the apparent discrepancies. In particular the applicant son provided a statutory declaration dated 2 March 2017 explaining that his brother was known both as [Mr B] and as [Mr A] and that he had died in the circumstances described by the applicants in their protection visa applications, but that the incident in which he died took place in December 2006, rather than 2010 as stated in the visa applications. He stated that after the death of [Mr A/Mr B], the family fled [to City 2, Country 1] where they remained for three years, before returning to Iraq and relocating to [Village 1] where his mother and siblings continue to live.

12. The author of the ITAOs did not accept their explanations, stating they were ‘vague and unpersuasive’ and noting the applicants had acknowledged that the death of their son and brother took place in 2007 (sic) rather than 2010. The author of the ITOAs concluded that each of the applicants had provided ‘misleading and/ or incorrect information to the Department’ and that the author had reached ‘a positive state of disbelief’ in relation to their testimony. The author found they were not credible or reliable witnesses and stated that she was not satisfied that they or their family had in the past or would be in the future targeted for harm by the men who purportedly sought revenge against their brother and son.

13. At hearing I heard evidence from the applicants about the circumstances in which their son/ brother was killed which I consider credible. In essence that evidence is that the son and brother they describe as [Mr A] in their protection visa applications is the same person as the son and brother described as [Mr B] in the earlier humanitarian visa decision. They gave evidence that as the eldest son in the family, [Mr A] was called [Mr B] by his family and this was the name used in the description of his death in the earlier visa application. I note that the 2007 humanitarian visa application describes [Mr A’s/Mr B's] death as occurring in similar circumstances, being that he was killed by a bomb planted by extremists after he reported suspicious activity to the police.

14. The applicants now acknowledge that when applying for the protection visas in 2010, they incorrectly stated [Mr A] was killed in 2010 rather than in December 2006. Their stated reasons for this were that it would be ‘less complicated’ if they described their story as though [Mr A] had been killed immediately before they came to Australia, which I take to mean that they thought that by locating [Mr A]’s death in the immediate past, they would more readily be granted protection.

15. Having heard the evidence of the applicants, I accept that [Mr A] and [Mr B] are the same person and that [Mr A] was killed in the circumstances set out by the applicant son in his statutory declaration dated 2 March 2017. I accept that this incident occurred in or about December 2006, rather than 2010 as stated in the applicants’ statutory declarations. I accept that while the family were at [Mr A]’s funeral, the family home was attacked and later destroyed. I accept the family fled their home in Basrah, first to [Village 1] and then on to [Country 1] where they remained for three years.

16. I am satisfied the applicants failed to disclose in their protection visa applications their residence in [Country 1] between 2007 and 2010. I am satisfied that in respect of the timing of [Mr A]’s death and the family’s residence in [Country 1], the information provided by the applicants in response to their protection visa application was incorrect and the applicants failed to comply with s.101. Apart from these matters, I accept the statements of the applicants in their statutory declarations and protection visa applications to be true.

17. At issue in this case is whether there was non-compliance in the way described by the s.107 notice. It is not open to the Tribunal to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[6] However the Tribunal is not precluded from considering evidence relevant to the non-compliance, as particularised, that was not referred to in the s.107 notification.[7]

    [6] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004) at [59] - [63].

    [7] Sheptitskaya v MIBP [2015] FCCA 159 (Judge Street, 27 January 2015) at [10]-[16].

18. The applicants do not dispute that they returned to Iraq for the periods specified in the s.107 notices. However they deny their returns to Iraq indicate that they did not hold the claimed profiles in Iraq or that they provided incorrect information in respect of their fears of returning to that country.  Rather they claim they returned to Iraq despite their genuine fears of harm and out of concern for their remaining family members still residing there. It is submitted by the applicant’s representative that for these reasons there has been no relevant non-compliance in the way described by the s.107 notice.

19. I do not accept that submission. For the reasons set out above I have concluded that the s.107 notices were sufficiently particularised. Those notices reproduced the whole of the applicants’ statutory declarations supporting their protection visa applications, identifying the contents of those statutory declarations as information that was potentially incorrect. While the applicants deny providing incorrect information about their profile and fears of returning to Iraq, they concede that their statements in their statutory declarations and applications for protection about the timing of [Mr A]’s death and the family’s residence between 2007 and 2010 was in fact incorrect. In such circumstances I find there was non-compliance in the manner particularised in the s.107 notice.   

    Should the visa be cancelled?

20. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

21. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations.

22. The correct information: I consider the correct information is that the applicants’ son/ brother [Mr A] was killed by Sunni extremists in Basrah in December 2006, rather than 2010 as stated in their protection visa applications. The family then fled [to City 2], where they remained for three years before returning to Iraq but they omitted that information from their statutory declarations and visa applications. The applicants departed Iraq in 2010, leaving the rest of the family in [Village 1], a village outside of Basrah.

23. The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the section 107 notice relied solely on section 101, not on section 103 (relating to bogus documents).

24. Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: I accept that the decision to grant the applicants’ protection visas was based at least in part on the circumstances of [Mr A]’s death. I accept that the applicants’ gave correct information about the circumstances of [Mr A]’s death in their protection visa applications, save as to the timing of that event.

25. It is difficult to say now to what extent, if any, the decision to grant the visas was based on the timing of [Mr A]’s death. It may be that had the delegate known that incident took place in 2006 rather than 2010, the delegate would have formed the view that the passing of time since that event meant that the applicants did not hold a profile such as would create a real chance of serious harm or a real risk or significant harm if they were returned to Iraq. It may also be that the delegate would not ultimately have found the timing of that event to be significant, given the applicants immediately fled Basrah for [Country 1] where they remained for three years before travelling to Australia. 

26. In any event, the applicants were Shia Muslims from Basrah at a time when that city was widely reported to be under constant attack from Sunni insurgents. In the decision to grant the protection visas, the delegate cites country information from the UK Home Office, the UNHCR and the department’s own country research. The information cited reports that a person was being assassinated in Basrah every hour in 2006, that insurgents were increasingly targeting Iraqis who had been critical of terrorism or who were supportive of the Iraqi authorities or coalition forces, that the Iraqi police were infiltrated by armed groups and that vehicle bombs were widely used by insurgents, who targeted locations where Shias congregated[8].

    [8] See information cited in the delegate’s decisions dated 9 &10 May 2011

27. Notwithstanding my findings that the applicant’s gave incorrect information in their protection visa applications, I accept they genuinely feared returning to Iraq at the time they made their applications for protection. I consider that even if the correct information had been known to the delegate when the decision to grant the visas was made in 2011, the applicants would still likely have been recognised as refugees.

28. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicants in their visa applications, their accompanying statutory declarations and at interviews conducted in respect of their protection claims. 

29. The present circumstances of the visa holder: Medical documents before the Tribunal indicate the applicant father suffers significant health issues. He has been diagnosed with Post Traumatic Stress Disorder and major depression as a result of his traumatic experiences in Iraq, the death of his son [Mr A] and the long period from which he has been separated from his wife and younger children. He also suffers from a range of physical health issues including a [specific condition] for which he is awaiting surgery.

30. I accept that his returns to Iraq since his protection visa was granted occurred in the context of his fear for the safety of his family remaining in Iraq, his significant mental health issues and his desire to be reunited with his family. In Australia he lives with the applicant son and the applicant son’s wife who act as his carers.

31. The applicant son married in December 2017 and his wife is a permanent resident of Australia. Their Australian citizen son was born on [date].  He has built a business since his arrival in Australia. Further details of his family and business are set out below.

32. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: Subdivision C of Division 3 of Part 2 of the Act relates to the applicants’ obligations not to provide incorrect information or bogus documents and to notify any relevant changes of circumstance. Other than the non-compliance out already referred to, there is no information before the Tribunal that would indicate any instances in which the applicants have failed to meet their obligations under this subdivision.

33. Any other instances of non-compliance by the visa holder known to the Minister: The delegate’s decision indicates there are no other instances of non-compliance by the applicant known to the Minister. There is nothing in the material before the Tribunal that indicates there are other instances of non-compliance.

34. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicants made their visa applications in 2010 and approximately nine years have elapsed since then.

35. Any breaches of the law since the non-compliance and the seriousness of those breaches: The delegate’s decision records there are no known breaches of the law since the non-compliance occurred. There is nothing in the material before the Tribunal that indicates either of the applicants have breached the law since the non-compliance.

36. Any contribution made by the holder to the community: The applicant son has made a significant contribution to the Australian community. He has established a registered business, [named], which employs [a number of] people and continues to grow. Tax returns submitted to the Tribunal indicate that business generated total sales of [an amount] in the 2018 financial year, posting a profit before income tax of [an amount] and paying income tax of [an amount].

    Other factors to be considered

37. While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Policy Guidelines ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

38. If the applicants’ visas are cancelled, they will become unlawful non-citizens and be liable to be detained. If detained, they are required to be removed from Australia as soon as reasonably practicable, notwithstanding any finding that they are owed non-refoulement obligations by Australia[9].

    [9] Section 197C and DMH16 v MIBP [2017] FCA 448

    Best interests of the child and the Convention on the Rights of the Child

39. As noted above, the applicant son has a [son] who is an Australian citizen.

40. The Department’s Policy Guidelines set out that in deciding whether to cancel, a decision maker is obliged to treat as a primary consideration the best interests of any children in Australia and to consider Australia’s obligations under the Convention on the Rights of the Child (CROC). The CROC contains principles that should be applied when a decision maker takes actions that affect a child, including that their best interests be treated as a primary consideration and the child’s right to know and be cared for by their parents means that decision makers should take appropriate measures to prevent children being separated from their parents. When assessing the best interests of a child, the Policy Guidelines set out the factors to be considered when exercising a discretionary power, including the child's age and the degree of their integration into the Australian community as well as the child's ability to resettle and integrate in the country of citizenship[10].

    [10] Departmental Policy Guidelines, Guiding Principles – Treatment of Children at A122

1. The applicant son’s wife attended the hearing and gave evidence. She is also an Iraqi citizen and she and her family fled Iraq when she was a child and were resettled in Australia on global humanitarian visas. I accept her evidence that if the applicant son’s visa remains cancelled and he is returned to Iraq, she will not return with him and the family will be separated.

2. While the applicant son may seek to return to Australia by way of a partner visa, the Department’s website indicates that such visas are currently taking up to 37 months to process during which time the family will remain separated[11]. I accept it is in the best interests of the applicant son’s young child that his father’s visa not be cancelled and the applicant son is able to remain in Australia with his wife and child.

   [11] Departmental website as accessed on 10 April 2019

3. Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations under relevant international agreements: It is submitted that the applicants face a precarious security situation if returned to Iraq, particularly in Basrah where Shia militia groups have free reign, in the absence of a central government. I have considered the country information contained in those submissions, as well as the sources cited below.

4. DFAT’s most recent Country Information Report states that Iraq’s security situation is influenced by the actions of remaining ISIL fighters (and other extremist fighters that have emerged since ISIL’s defeat) as well as other armed groups including the state sanctioned Popular Mobilisation Forces as well as historical intra-Shia and intra-Sunni tensions. It notes that large scale and violent protests occurred in Basrah in 2018 about youth unemployment, infrastructure including water and electricity reliability and quality and public health concerns. Generally though DFAT notes that Southern Iraq, including Basrah, is more secure than other parts of the country, although criminality and drug abuse exist in the region[12].

   [12] DFAT DFAT Country Information Report Iraq 9 October 2018

5. The UK Home Office reports that Iraq’s government declared military victory against ISIL in December 2017, but insurgent attacks by remaining fighters continue to threaten Iraqis as they shift their attention toward recovery and the country’s political future. It reports that security conditions have improved since ISIL’s control of territory was disrupted, but IS fighters are active in some areas of the country and security conditions remain fluid[13].

   [13] UK Home Office Country Policy and Information Note Iraq: Security and Humanitarian Situation November 2018

6. The UK Home Office reported in February 2019 that returnees from the west fall into the category of persons perceived as collaborators in Iraq, although it assesses that in general they face no real risk on this basis[14].

   [14] UK Home Office Country Policy and Information note Iraq: Perceived Collaborators February 2019 at 2.46 – 2.49

7. I accept the security situation in Iraq remains fluid and IS fighters and other armed groups remain active in some parts of the country. However on the evidence before me, I do not accept that there is a real chance that the applicants will suffer persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act or a real risk that they will suffer significant harm as defined in subsection 36(2A) of the Act, if they return to Iraq now or in the reasonably foreseeable future.

   EXERCISE OF DISCRETION

8. I have found that the applicants provided incorrect information in their protection visa applications as to the timing of [Mr A]’s death and their residence in [Country 1] between 2007 and 2010. The provision of incorrect information undermines the integrity of Australia’s visa system and reflects poorly on the applicants.

9. Having given careful consideration to all the relevant circumstances, I consider the matters to which I am required to have regard weigh against cancelling the applicants’ visas.  In particular I give significant weight to my findings below:

   ·Had the correct information had been known to the delegate when the decision to grant the visas was made in 2011, the applicants would still likely have been recognised as refugees;

   ·The applicant father suffers from significant mental health issues as a result of his traumatic experiences in Iraq, the death of his son [Mr A] and the long period from which he has been separated from his wife and younger children. He also suffers from a range of physical health issues including a [specific condition] for which he is awaiting surgery;

   ·The applicant father’s returns to Iraq since his protection visa was granted occurred in the context of his fear for the safety of his family remaining in Iraq, his significant physical and mental health issues and his desire to be reunited with his family. In Australia he resides with the applicant son and his wife and he relies on them for his daily care;

   ·The applicant son has made a significant contribution to the Australian community by establishing a registered business, [named], which employs [a number of] people and generated total sales of [an amount] in the 2018 financial year, posting a profit before income tax of [an amount] and paying income tax of [an amount];

   ·If the applicant son’s visa remains cancelled and he is returned to Iraq, his wife will not return with him and the family will be separated. I have found it is in the best interests of the applicant son’s young child that his father’s visa not be cancelled and the applicant son is able to remain in Australia with his wife and child.

   CONCLUSIONS

10. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Alison Murphy
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)      visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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