1726336 (Refugee) - [2019] AATA 6766

1726336 (Refugee) [2019] AATA 6766 (25 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1726336
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Alison Murphy
DATE:25 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 25 September 2019 at 10:59am

CATCHWORDS
REFUGEE – protection visa – Iraq – imputed political opinion – opposed militia – Mahdi Army and Shia extremist groups – particular social group – wealthy businessmen in Iraq – feared harm for refusing to cooperate with militia – incorrect information – voluntarily returned to Iraq seven times without issues after granted protection visa – returned for short periods to visit elderly parents – death of father – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 46A (1), 101, 107, 108, 109, 140, 375A, 438
Migration Regulations 1994 (Cth)

CASES
Minister for Immigration and Citizenship v Brar [2012] FCAFC 57
Rani & Ors v MIMA (1997) 80 FCR 379
Saleem v Migration Review Tribunal [2004] FCA 234
SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27
Zhao v Minister for 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

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The first named applicant is a [male] from Basra, Iraq (the applicant). The second named applicant is his wife and the third to eighth named applicants are their children, aged [specific ages] respectively. Of those six children the elder five were born in Iraq, while the youngest was born in Australia [before] her parents were granted protection visas. The applicant and his wife have two other children born in Australia, now aged [specified ages]. As the applicant and his wife were permanent residents at the time their youngest child was born, those children are Australian citizens and not the subject of this review. The applicant’s eldest daughter also has an Australian citizen child born in Australia since her arrival, now aged [a certain age].
According to the delegate’s decision (a copy of which was provided to the Tribunal by the applicant), the applicant arrived in Australia [in] November 2011 by boat and was granted a protection visa 11 September 2012. The delegate’s decision also records that the applicant’s visa was granted on the basis of claims he made in the application for a protection visa (the visa application) that he feared persecution in Iraq for reasons of his imputed political opinion and his membership of the particular social group ‘wealthy businessmen in Iraq’. This was on the basis of findings by an Independent Merits Reviewer (IMR) on 1 June 2011 that the applicant and his family faced a real risk of serious harm for refusing to cooperate with the militia, with the result they were imputed to hold a political opinion opposing the militia.
The Department subsequently formed the view that the statements made by the applicant in his visa application were not correct, because the applicant voluntarily returned to Iraq on seven occasions for periods totalling six months after he was granted the protection visa. The applicant was sent a Notice of Intention to Consider Cancellation (s.107 notice) of the visa dated 19 June 2017 and a delegate decided to cancel the applicant’s visa on 19 October 2017.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.[1] At hearing this issue was discussed with the applicant’s representative who agreed this was the case.
[1] Rani & Ors v MIMA (1997) 80 FCR 379, Tien & Ors v MIMA (1998) 89 FCR 80 at 96, Farah v MIAC [2011] FCA 185.
ISSUES FOR DETERMINATION
The issues in this case are:
·    whether the s.107 notice sent to the applicant is valid;
·    if so, whether the ground for cancellation is made out; and
·    if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that while the s.107 notice sent to the applicant was valid, the ground for cancellation is not established and the decision to cancel the applicant’s visa should be set aside.
HISTORY OF PROCEEDING
The applicant was represented by his registered migration agent.
The applicant appeared before the Tribunal on 12 September 2019 to give evidence and present arguments, accompanied by his family. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Non-disclosure certificate
The Tribunal has before it the applicants’ departmental files, including the files relating to their visa cancellations. 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. The departmental files contain several certificates purporting to restrict the disclosure of information contained on the departmental files.
A departmental officer first issued two non-disclosure certificates regarding departmental files [File 1] and [File 2] [in] November 2017 under s.375A of the Act. Those certificates were each revoked on 7 November 2018 on the basis that they were invalid because s.375A relates to Part 5 reviewable decisions, while the decision under review relates to a Part 7 reviewable decision.
On 21 November 2018 a further non-disclosure certificate was issued pursuant to s.438(1)(b) of the Act in respect of departmental file [File 1]. That certificate sought to restrict material contained at folios 51–72, 102–120, 85–92 and 145–162 of the file. On the same date a non-disclosure certificate was issued pursuant to s.438 in respect of highlighted parts of folios 30–37, 39–41, 28 and 42–47 of [File 2]. On 12 December 2018 a further certificate was issued under s.438 in respect of folios 343–380 of [File 3].
Copies of all of the above certificates, including those since revoked, were provided to the applicant’s representative at hearing.
Where a certificate is issued under s.438, the Tribunal may, if it thinks it appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.
Having regard to the material covered by the certificate on departmental file [File 1], I am satisfied the certificate is valid on its face. However it is apparent from the submissions of the applicant’s representative that some of the documents covered by that certificate have already been provided by the applicant under FOI provisions:
·the representative’s submissions dated 27 May 2019 attach a copy of the IMR’s decision dated 30 April 2012 which appears at folios 102–120 as covered by the non-disclosure certificate. The copy produced by the applicant to the Tribunal is marked ‘Release by Home Affairs under FOI Act’;
·Similarly the email correspondence identified in the non-disclosure certificate at folios 86–92 has also been produced to the applicant under the FOI Act and submitted to the Tribunal by his representative marked ‘Release by Home Affairs under FOI Act’.
As the applicant already has been provided with a copy of the pages subject to the s.438 certificate by the Department, the Tribunal has not provided those again.
Folios 51–72 on departmental file [File 1] are stated in the non-disclosure certificate to include sensitive information provided in confidence from a third party where the disclosure of such information could have adverse consequences for the safety of that person. Folios 145–162 are stated to contain information which could disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law, which would be likely to prejudice the effective use of those methods. The information provided in confidence by the third party, if true, is both serious and highly prejudicial to the applicant.
The departmental file indicates the information was referred for further investigation at the time it was received in 2017, but contains no indication of what investigations may have been conducted or their results, if any. However given the seriousness of the allegations and the undoubted public interest in having those allegations thoroughly investigated, I have decided not to provide a copy of this information to the applicant, nor otherwise discuss the contents of that information with the applicant or his representative beyond providing them with a copy of the relevant certificates.
Having regard to the material covered by the certificate on departmental file [File 2] at folios 39–41, 28 and 42–47, I am satisfied the certificate is valid on its face. Those folios contain correspondence between departmental officers and other working documents which include information provided in confidence by a third party as well as details of investigations undertaken by the Department in relation to the applicant. The substance of that information relates to the third-party information referred to above and for the same reasons, I have decided not to disclose it beyond providing a copy of the certificate.
Having regard to the material covered by the certificate on departmental file [File 3] at folios 343–380, I am satisfied the certificate is valid on its face. Those folios contain the IMR’s decision dated 30 April 2012. As noted above, the Department has already disclosed this document to the applicant pursuant to FOI provisions.
LEGISLATIVE FRAMEWORK
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s.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.
Did the notice comply with the requirements in s.107?
The applicant was issued with a s.107 notice dated 19 June 2017. That notice stated that he arrived in Australia as an illegal maritime arrival [in] November 2010 and applied for refugee status assessment on 29 January 2011. It stated that on 30 April 2012, an IMR found him to be a person to whom Australia owed protection obligations.
The s.107 notice sets out the information provided by the applicant to the RSA delegate and the IMR delegate as follows (in summary):
·That he and his family lived in Basra in a compound with [numerous] houses owned by the applicant, his father and his [siblings] and they are now all scattered around Iraq;
·That he feared death and he had hidden for four years in Iraq because of his fear of being seriously harmed or killed. If he returned to Iraq, he would confine himself to one place where no one can see him because he was scared;
·He had a very strong family in Iraq and would not have left them with no prospect of return for no reason. He felt he had no choice and he and his family had to leave Iraq for their own safety.
The s.107 notice sets out the information provided by the second named applicant as follows (in summary):
·Her husband was a [Occupation 1] with [certain items]. The Mahdi Army used to track them and threaten them and this was when their difficulties in Iraq started. She did not fear for herself but feared for her husband and children;
·She believed that if they returned to Iraq, her husband would be killed. She also feared for the security of their children and that they might be kidnapped.
The s.107 notice went on to say that the IMR found that the significant and essential reason for the harm feared by the applicant was his imputed political opinion and membership of the particular social group of ‘wealthy businessmen in Iraq’. The IMR accepted he and his family faced a real risk of serious harm because they had been targeted by and refused to cooperate with the militia in the past and would be perceived to hold an opposing political opinion to the militia. The IMR accepted the applicant would not be protected by the State of Iraq and could not reasonably relocate to any other part of the country.
The s.107 notice sets out that upon receiving the IMR’s recommendation the Minister lifted the bar under s.46A(1) and allowed the applicant to apply for a protection visa. The applicant later completed a Form 866C and provided a written statement of claims dated 29 January 2011 in which he stated (in summary):
·He is a Shia Muslim and a citizen of Iraq who feared returning to that country;
·In 2006 the Mahdi Army approached the applicant to join them because his family was wealthy and the applicant owned a [business]. The applicant stated that whoever refused them would be killed;
·Two weeks later, [a number of] people came to his house and said that [certain people] had sent them to collect money. It was obvious they were from the Mahdi Army. They demanded money but did not say how much. He knew they would not leave him alone so the next day he gave them[an amount of money];
·He went to [Named person] to challenge him over this incident. He stated that [the person] told him to pay them or they would harm him. [A number of] days later, some people came to his house and demanded [a larger amount of money];
·The applicant refused to pay and less than a month later the Mahdi Army burned one of his [possessions]. [A number of] days later a group of masked men drove towards him. He knew he was in trouble and when he got out of the car they shot him in the [limb];
·He told the police and the doctor that the Mahdi Army had shot him. The police told him to shut up and the doctor did not want him to stay in hospital;
·He stayed at home because he feared the Mahdi Army would target him again. He left Iraq because he could not continue to live like this;
·He believed if he returned to Iraq the Mahdi Army would target him again. He stated they had seats in the government and he couldn’t live there while they are in power and there was no safe place for him in Iraq;
·He left Iraq out of fear for his life. He risked his life to enable his children to live in a safer place.
The s.107 notice stated the Department had subsequently received information that raised concerns about the information the applicant provided to the Department during the visa application process. In summary, that information concerned departmental records showing the applicant had travelled out of Australia on seven occasions since the grant of his visa:
- Movement records show the applicant departed Australia [in] March 2013 and returned [later in] March 2013 (approximately two weeks). In his outgoing and incoming passenger cards the applicant stated the country where he would/did spend most time abroad was Iraq.
- Movement records show the applicant departed Australia [in] September 2013 and returned [in] October 2013 (approximately three weeks). In his outgoing and incoming passenger cards the applicant stated the country where he would/did spend most time abroad was Iraq.
- Movement records show the applicant departed Australia [in] November 2014 and returned [in] December 2014 (approximately three weeks). In his outgoing and incoming passenger cards the applicant stated the country where he would/did spend most time abroad was Iraq. On his return to Australia on [in] December 2014 a departmental officer at [Named] Airport found the visa holder had in his possession a current Iraqi passport ([number]) issued [in] 2010 to [Mr A], date of birth [specified] and his own Australian Titre De Voyage (No [specified]) which included an Iraqi Entry stamp dated [November] 2014 and an Iraqi Departure stamp dated [December] 2014. The applicant informed the departmental officer that he brought the Iraqi passport to Australia for a friend who is in the [detention] centre. His friend’s parents gave him the passport when he was in Iraq. He stated that his life is still threatened by the political parties in Iraq, which is why he only returns to Iraq for short periods to visit his elderly mother and father;
- Movement records show the applicant departed Australia [in] March 2015 and returned [in] April 2015 (approximately six weeks). In his outgoing passenger card he stated the country where he would spend most time abroad was Iraq;
- Movement records show the applicant departed Australia [in] July 2015 and returned [in] August 2015 (approximately two weeks). In his outgoing passenger card he stated the country where he would spend most time abroad was Basra;
- Movement records show the applicant departed Australia [in] November 2015 and returned [in] December 2015 (approximately six weeks). In his outgoing and incoming passenger cards he stated the country where he would/did spend most time abroad was Iraq. On his return to Australia with his family [in] December 2015 the applicant informed a departmental officer that he had travelled with his family to Iraq for [a number of] days. He and his family had in their possession:
oAustralian Titre De Voyage ([Document 1]), issued on [in] September 2014 to the applicant, with Iraqi Entry stamps dated [March] 2015, [July] 2015, and [November] 2015, and Iraqi Departure stamps dated[in] April 2015, [August] 2015, and [December] 2015, and an Australian Arrived stamp dated [April] 2015;
oAustralian Titre De Voyage ([Document 2]) issued [in] September 2014 to [Ms B], date of birth [specified], with Iraqi Entry stamp dated [November] 2015 and Iraqi Departure stamp dated [December] 2015;
oAustralian Titre De Voyage ([Document 3]) issued [in] September 2014 to [Mr C], date of birth [specified];
oAustralian Titre De Voyage ([Document 4]) issued [in] September 2014 to [Mr D], date of birth [specified], with Iraqi Entry stamps dated [March] 2015 and [November] 2015, and Iraqi Departure stamps dated [April] 2015 and [December] 2015;
oAustralian Titre De Voyage ([Document 5]) issued [in] September 2014 to [Mr E], date of birth [specified], with Iraqi Entry stamp dated [November] 2015 and Iraqi Departure stamp dated [December] 2015;
oAustralian Titre De Voyage ([Document 6]) issued [in] October 2014 to [Mr F], date of birth [specified], with Iraqi Entry stamps [March] 2015 and [November] 2015, and Iraqi Departure stamps dated [in] April 2015 and [December] 2015;
oAustralian Titre De Voyage ([Document 7]) issued [in] October 2014 to [Mr G], date of birth [specified], with Iraqi Entry stamps dated [in] March 2015 and [November] 2015, and Iraqi Departure stamps dated[April] 2015 and [December] 2015;
oAustralian Titre De Voyage ([Document 8]) issued [in] November 2014 to [Ms H], date of birth [specified], with Iraqi Entry stamp dated [in] November 2015 and Iraqi Departure stamp dated [in] December 2015;
oAustralian Passport ([Document 9]) issued [in] October 2014 to [Mr I], date of birth [specified], with Iraqi Entry stamp dated [November] 2015, and Iraqi Departure stamp dated [December] 2015.
- Movement records show the applicant departed Australia [in] February 2016 and returned [later in] February 2016 (approximately [a number of days]). In his outgoing passenger card he stated the country where he would spend most time abroad was Iraq. On his departure from Australia [in] February 2016 he informed a departmental officer that he was returning to Iraq to visit his sick father. The departmental officer noted the applicant’s flight details were to fly to Basra, Iraq, [in] February 2016 and stay until [later in] February 2016. On his return to Australia [in] February 2016 the applicant informed a departmental officer that:
At the time of the interview the applicant had the following documents in his possession:

The s.107 notice went on to state:
. . . since the grant of your protection visa on 11 September 2011 [sic], you have voluntarily returned to Iraq on seven occasions and stayed in Iraq for a total of 23 weeks, and on two occasions, your family voluntarily returned with you to Iraq, and stayed in Iraq for a total of 12 weeks. Your return to Iraq on these occasions has involved you in multiple contacts with the Iraqi border authorities, and you stayed in Iraq for a total of 23 weeks, without any apparent issue of your protection claims arising for you or your family.
The s.107 notice concluded (in summary) that:
·the applicant provided incorrect information in response to question 42 in his Form 866C when he stated that he left Iraq because the Mahdi Army was targeting him there. This information was incorrect because his voluntary returns to Iraq, including with his family on two occasions, without any apparent issue, indicate he did not hold the adverse profile he claimed to hold in his protection visa application for reason of his political opinion or because he was a wealthy businessman targeted by the Mahdi Army in Iraq;
·the applicant provided incorrect information in response to question 44 in his Form 866C when he stated that he stayed in his home from 2006 until he came to Australia because he was targeted by the Mahdi Army after he refused to join them, the Mahdi Army demanded money from him and he paid them [an amount of money] and they burned his [possession] when he refused to pay more money. This information was incorrect because his voluntary returns to Iraq, without any apparent issue, indicate he did not hold the adverse profile he claimed to hold in his protection visa application as a person previously harmed or targeted by the Mahdi Army in Iraq;
·the applicant provided incorrect information in response to question 45 in his Form 866C when he stated that he feared if he returned to Iraq, the Mahdi Army would harm or kill him. This information was incorrect because his voluntary returns to Iraq, without any apparent issue, indicate he did not hold the adverse profile he claimed to hold in his protection visa application as a person at risk of being harmed by the Mahdi Army were he to return to Iraq;
·the applicant provided incorrect information in response to question 46 in his Form 866C when he stated that he thought the Mahdi Army would harm or mistreat him if he returned to Iraq. This information was incorrect because his voluntary returns to Iraq, without any apparent issue, indicate he did not hold the adverse profile he claimed to hold in his protection visa application as a person who would be targeted and harmed by the Mahdi Army were he to return to Iraq;
·the applicant provided incorrect information in response to question 47 in his Form 866C when he stated that he thought the Mahdi Army would harm or mistreat him if he returned to Iraq because of his political opinion and for being a wealthy businessman. This information was incorrect because his voluntary returns to Iraq, without any apparent issue, indicate he did not hold the adverse profile he claimed to hold in his protection visa application for reason of his political opinion or because he was a wealthy businessman in Iraq;
·the applicant provided incorrect information in response to question 48 in his Form 866C when he stated that the authorities of Iraq would not protect him because the Mahdi Army had extensive influence within the police force and across Iraq. This information was incorrect because his voluntary returns to Iraq, without any apparent issue, indicate he received the protection the Iraqi government gives to all Iraqi citizens and indicates he did not hold the adverse profile claimed in the protection visa application.
Is the s.107 notice sufficiently particularised?
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’.
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’ docume;nts 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.[2]
[2] Saleem v Migration Review Tribunal [2004] FCA 234 (30 March 2004) at [43].
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.[3]
[3] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 at [25]–[26].
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’.[4]
[4] Minister for Immigration and Citizenship v Brar [2012] FCAFC 57.
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.[5]
[5] SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27 at [38].
I note that the s.107 notice set out in detail the information given by the applicant in his protection visa application that is now said to be incorrect, as well as particulars of the basis on which that information is now said to be false. I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.
In this case, the validity of the notice is challenged on another ground. The applicant’s representative submits the s.107 notice issued to the applicant was defective because the delegate issuing the notice could or should not have been satisfied that the second named applicant did not make an application for a protection visa in her own right (and potentially in the names of all the other review applicants born at that time) that was potentially granted to her and her secondary applicants upon the decision of the IMR.
The applicant’s representative submits that as such, the s.107 notice should have raised the possibility that the applicant’s wife and secondary dependants had an outstanding application for a protection visa. It is submitted that the possibility that the second named applicant had made an application for a protection visa in her own right was a matter about which the applicant might have provided comment to show why his visa should not be cancelled.
In support of that submission, the applicant’s representative lodged copies of documents provided under FOI provisions from the departmental file which indicate that the delegate corresponded with other departmental officers who were unable to locate a protection visa decision for the second named review applicant (and any dependants who may have been included), leading the delegate and other officers to canvass the possibility that the second named review applicant may have an outstanding protection visa application.
I accept it may be the case that the second named applicant made her own application for a protection visa (with or without secondary applicants), although I am not able to determine that from the documents available to me. If that were the case, it may also be correct that her claims for protection were not separately assessed by the Department once her husband was found to engage Australia’s protection obligations, rather she and the children were simply granted protection visas as members of their husband and father’s family unit without a separate assessment of their claims. Indeed this Tribunal has observed the Department to proceed in such a manner in other cases.
In my view the submission that the s.107 notice is invalid because it does not raise the possibility that the second named applicant may have an outstanding protection visa application pending cannot succeed. If that submission were correct, a s.107 notice would be invalid unless it contains or references all matters on which an applicant might conceivably wish to provide comment to show why his or her visa should not be cancelled. Neither the terms of s.107 nor the case law referred to above impose any such requirement.
Rather the terms of s.107(1)(a) relevantly require the Minister (or his authorised delegate) to give to the visa holder particulars of the possible non-compliance. The case law referred to above makes clear that the matters set out in the notice must fairly inform the visa holder of the basis upon which cancellation is being considered. The notice must also provide sufficient particulars of the basis upon which the falsity is alleged in enough detail to allow the recipient a real opportunity to understand and attempt to answer the non-compliance allegation.[6]
[6] SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27 at [38].
For the reasons set out above I have found the s.107 notice set out in enough detail the information given by the applicant in his protection visa application that is now said to be incorrect, as well as particulars of the basis on which that information is now said to be false. I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.
In the present matter, I am 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 next issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
As set out in detail above, the s.107 notice summarised the applicant’s protection claims and noted he was granted a protection visa on the basis of the claims made. In essence the notice alleges his protection claims are inconsistent with his voluntary return to Iraq on seven occasions, including twice with his family, for a total of 23 weeks since the grant of his protection visa. The s.107 notice alleges his return to Iraq on these occasions involved the applicant in multiple contacts with the Iraqi border authorities, without any apparent issues arising relating to his protection claims. The s.107 notice alleges that these voluntary returns and contacts with the Iraqi border authorities, without apparent incident, indicate the information provided by the applicant in his protection claims was incorrect.
The applicant responded to the s.107 notice on 12 July 2017. He agrees he returned to Iraq on each of the dates claimed in the s.107 notice, but states that his returns are not inconsistent with the claims he made in his protection visa application:
·He returned to Iraq on several occasions, but stayed for short periods each time (between 1 and 6 weeks);
·The purpose of his return visits to Iraq were to visit his sick father and he remained inside the family compound during those visits, which is entirely consistent with the information provided in his protection visa application;
·This is consistent with information provided to departmental officers when interviewed at [Named] Airport in February 2016;
·He has consistently stated that he did not travel freely around Iraq, but remained inside the family compound during his stays. He did this to reduce contact with the authorities and other individuals who may have alerted the Mahdi Army or other parties to his presence in Iraq;
·He spent the vast majority of his time comforting and spending time with his sick father;
·During his returns to Iraq, he was not employed and his children did not attend school;
·There was no condition attached to his visa that prohibited him from returning to Iraq, and his return to Iraq did not constitute ‘incorrect information’ such as would enliven s.101.
In submissions made to the Tribunal and his oral evidence at the Tribunal hearing on 12 September 2019, the applicant provided further information about the circumstances of his returns to Iraq.
The applicant’s returns to Iraq
Were the applicant’s returns to Iraq inconsistent with his claims for protection?
The delegate considered the above matters and nonetheless found that there had been non-compliance in the way described in the s.107 notice. For the following reasons, I have reached a different conclusion on this point.
A mere suspicion is not sufficient to establish the ground for cancellation. Rather before the visa can be cancelled, a decision maker must reach a real state of satisfaction that a ground for cancellation exists. A visa cannot be cancelled because the decision-maker has identified a possible ground for cancellation which the visa holder has not been able to rebut.[7]
[7] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
At hearing I discussed with the applicant at length the reasons for and circumstances of each of his returns to Iraq since 2013. Consistently with his response to the s.107 notice, the applicant freely acknowledged returning to Iraq on each of the occasions set out in the s.107 notice. In summary he stated:
First return – March 2013 (2 weeks)
·He returned to Iraq on his own for two weeks in March 2013 after his father had a relapse of his [Medical Condition 1] and [Medical Condition 2], leading to his hospitalisation with [Medical Condition 3]. He called the Department’s call centre and advised of his plans before travelling. He flew into Basra, where he entered Iraq using his Australian Titre de Voyage. His [sibling] and cousins came in two cars to collect him from the airport and drove him to the family compound in an area called Al Qurna, about 80km west of Basra;
·The family compound comprises the village of [Village 1], named for his grandfather. Resident in that compound are his grandfather’s sons (the applicant’s father and paternal uncles), their adult children and their families. There are now approximately [a number of] adult males and their families living in [a number of] houses in the village or compound and there are no strangers there. It is unusual even for the women to marry outside of the family and so all of those living in the family compound are relatives. As evidence of this the applicant showed me his grandfather’s Iraqi citizenship certificate stating his name [and] his Australian Titre de Voyage, which recorded his entry to and exit from Iraq [in] March 2013 and [later in] March 2013 respectively;
·He experienced no difficulties during his return to Iraq and his family were overjoyed to see him, especially as they had been wrongly advised that the boat on which he and his family had travelled to Australia had sunk at sea. Although he had some fears of returning to Iraq at that time, he was reassured by knowing his brothers had arranged his travel and would be receiving him at the airport and no one outside the family knew he was returning.
Second return – September 2013 (3 weeks)
·He returned because his father asked him to, having been hospitalised for [a number of] days. Again he entered and exited Iraq on his Australian travel document and his [siblings] and cousins collected him from the airport and brought him to the family compound. He was able to move freely around the family compound because there were no strangers around, but it was impossible for him to walk in the street outside the family compound if he was not accompanied by his [siblings] and cousins. He experienced no difficulties during his return other than fear for his father’s health.
Third return – November/ December 2014 (3 weeks)
·He next returned for three weeks just over a year later when his father again became extremely ill. His father was the head of the whole family and the applicant couldn’t refuse his request. The arrangements were the same as his earlier trips and he remained in the family compound and never walked in the streets outside the compound or village;
·At hearing I asked the applicant about his interview by an airport officer on his return to Australia who found in his possession a current Iraqi passport in the name of [Mr J] (DOB [Specified]). The applicant said he met Mr [A] in immigration detention in Australia. Mr [A] became very sick and had to undertake [serious] surgeries, [and] then more serious surgeries until they were desperate for his survival. The Department didn’t know how to decide his case because Mr [A] didn’t have any documents in Australia so his family gave Mr [A]’s passport to the applicant while he was in Iraq and asked the applicant to take it to Australia and give it to Mr [A]. The applicant is recorded in the departmental file as stating during this interview that his life was still threatened by political parties in Iraq, which is why he returned only for short periods to visit his elderly parents;
·The applicant gave evidence at hearing that he was interviewed at the airport about that passport before it was taken from him and he was given some kind of receipt for it which he no longer has. A few days later the applicant heard the passport had been delivered to its owner at the detention camp. If it had not been taken from him, he was going to post it to Mr [A]. The applicant gave evidence he has not had contact with Mr [A] since 2017. His family have since contacted the applicant telling him they have lost all contact with Mr [A], after which the applicant tried to contact Mr [A] through his case officer, who told him his mental state had deteriorated very badly and he had been transferred to a mental health institution. The applicant has heard nothing further from or about Mr [A] since that time. Movement records for Mr [A] indicate he arrived in Australia by boat [in] August 2013 and (as at the time of the Tribunal decision) not departed.
Fourth return – March/ April 2015 (5 weeks)
·The applicant returned to Iraq with his family for approximately five weeks at the request of his father. He was reassured about their safety given his earlier returns to Iraq without difficulty. He and his family were collected from the airport by their relatives and taken to the family compound. His parents and extended family were delighted to see the applicant and his family, his mother having played a significant part in raising the applicant’s children before their departure from Iraq in 2010. They experienced no difficulties during their return.
Fifth return – July/ August 2015 (2 weeks)
·The applicant returned to Iraq on his own following the death of his [aunt] and his father’s hospitalisation. The arrangements for his travel and accommodation were the same for his earlier trips and he experienced no difficulties during his return.
Sixth return – November/ December 2015 (6 weeks)
·The applicant returned to Iraq with his family at the request of his father who believed he was about to die. It was the last time his children saw his father before his father died. It was an important religious occasion where the family celebrated the martyrdom of Hussain. The arrangements for his travel and accommodation were the same as for his earlier trips and the family experienced no difficulties during his return.
Seventh return – February 2016 (1 week)
·The applicant returned on his own following a deterioration in his father’s health. The arrangements for his travel and accommodation were the same as for his earlier trips and he experienced no difficulties during his return;
·The departmental file records the applicant was interviewed on arrival in Australia and he is recorded as stating that he had been to see his family because his father was sick. He is recorded as stating that he stayed at his father’s house in the country outside Basra in the province of [Province 1]. He is recorded as stating he had been back to Iraq many times, where he travelled secretly and hid, and where there were no strangers around and he was always inside;
·At hearing the applicant gave evidence that when they interviewed him and asked where he had been, he gave them some information that the area where his family lived was called [Location 1] and the district is called [Province 3] which is situated to the west of Al Qurna. He said the province is not called [Province 1] as recorded in the departmental file but [Province 3] (pronounced [specified]). The family compound is located in [Location 1] and carries the family name of [Village 1], which is part of the [Province 3] district. It is part of the governorate of Al-Basra.
Eighth return – October 2018 (2 weeks)
·The applicant returned to Iraq at the request of his father, shortly before his father’s death. His father had asked him to return with his family, but he had been advised by his representative that he should not return himself or take his family given that his visa cancellation was by that time under consideration. The applicant could not refuse his father, but returned alone without his family. His father’s condition was very bad and he didn’t recognise the applicant initially. After a few days, his father’s condition improved slightly and they were able to have some conversations together. The arrangements for his travel and accommodation were the same as for his earlier trips and the family experienced no difficulties during his return;
·Prior to the Tribunal hearing the applicant submitted to the Tribunal a copy of his father’s death certificate and English language translation. That certificate indicates the applicant’s father [died] in hospital in Basra [in] June 2019 from ‘[Medical Condition 4] and complications; [Medical Condition 3], [Medical Condition 2]’ over a period of years.

In assessing the applicant’s evidence as to the circumstances of his returns to Iraq between 2013 and 2018, I have had regard to the information covered by the certificates referred to in paragraphs 18–20 above. As noted above the third party allegations are both serious and highly prejudicial. To the extent that information might be taken to suggest the applicant returned to Iraq for reasons other than those given by the applicant during the cancellation process (and therefore be relevant to the issue of whether the applicant gave incorrect information in his protection visa application), I have no details before me other than the bare assertions and no way of testing or verifying those assertions. Given the serious nature of the allegations, I would expect that attempts have been made by the appropriate authorities to verify or disprove those allegations in the intervening two years, however there is no information before me as to any investigations that may have been undertaken or their outcome.
The applicant’s evidence at the Tribunal hearing is materially consistent with his claims in his protection visa application in 2011 and 2012, his contemporaneous recorded statements to airport officials who interviewed him on his re-entry to Australia in December 2014 and February 2016, medical records submitted to the Department and the Tribunal and the death certificate relating to the applicant’s father. In such circumstances the balance of evidence weighs strongly in the applicant’s favour, notwithstanding the seriousness of the allegations against him. I further note that should investigations or other material not available to me substantiate the allegations that have been made, the Department has open to it a range of other legal options, including the potential cancellation of the applicant’s visa on other grounds.
Based on the evidence available to me, I find the applicant returned to Iraq on each of the occasions outlined above to see his elderly and ailing father and other family members. I find that on each occasion he stayed at the family compound, which in effect comprised a village in which only members of the applicant’s family resided. I find the applicant experienced no difficulties during his returns to Iraq, either from militia groups or the Iraqi authorities. I find that he disclosed his travel to Iraq to the Australian authorities in his incoming and outgoing passenger cards and at interviews with Australian airport officials.
I note that in his application for refugee status, the applicant claimed to fear harm in Iraq related to his fear of the Mahdi Army and other Shia extremist groups, not the Iraqi authorities. As set out in the s.107 notice, the applicant stated in his visa application that the incident that led to the applicant’s departure from Iraq took place in 2006, four years before his departure from Iraq. In essence he claimed that he was approached to join the Mahdi Army because his family was wealthy and the applicant owned a [business], but he refused to join. He claimed that two weeks later people arrived and demanded money from him and the next day he gave them [an amount of money]. Several weeks later the people returned and demanded [a larger amount of money] and the applicant refused to pay. He claimed that less than a month later the Mahdi Army burned one of his [possessions] and [a number of] days later a group of masked men shot him in the [limb]. As set out in the s.107 notice, the applicant stated in his protection visa application that he had stayed at home in his family compound from 2006 until 2010 for fears the Mahdi Army would harm or kill him.
In relation to his returns to Iraq between 2013 and 2018, the applicant has consistently stated that he did so to see his family and in particular his elderly parents and that on each occasion he stayed at the family compound and did not venture outside. This is consistent with statements made by the applicant to airport officials when he was interviewed on return to Australia in 2014 and 2016. The s.107 notice sets out that in an interview with an airport officer on 6 December 2014, the applicant maintained his life was still threatened by political parties in Iraq which is why he returned for short periods to see his elderly parents. In a similar interview on arrival in Australia [in] February 2016 the applicant stated that he had been to see his family in the [Province 1] and stayed at his father’s house in the country. He stated that he had been back to Iraq many times and stayed at his father’s house in the country where there were no strangers around and he was always inside.
I do not consider the applicant’s returns to Iraq between 2013 and 2018 are capable of establishing that the statements made in his protection visa and associated documents and interviews were incorrect. Rather his returns for short periods to his family compound between 2013 and 2018 are consistent with the information he earlier provided in his visa application, namely that he was targeted and extorted by the Mahdi Army because he was a wealthy businessman and after being shot in 2006 he avoided further harm by remaining in hiding inside the family compound for four years, leaving Iraq when he was unable to afford to remain at home without employment.
I note the s.107 notice suggests that the applicant’s returns to Iraq between 2013 and 2018, which necessarily involved him in multiple contacts with the Iraqi border authorities ‘without any apparent issue’, is inconsistent with his claims to fear harm from the Mahdi Army in his protection visa application. This appears to misapprehend the nature of the Mahdi Army, which was a Shia militia group rather than an organ of the Iraqi state. Country information cited in the IMR decision dated 30 April 2012 reported that the Mahdi Army’s militia activity decreased somewhat from 2008.
The fact the Mahdi Army or other militia groups did not seek to harm the applicant during his brief returns to Iraq between 2013 and 2018 does not on its own demonstrate that he gave incorrect information about the incidents he said occurred in Iraq between 2006 and 2010. Rather there are several reasons for considering the threat to the applicant’s safety may have subsided somewhat since his first departure from Iraq:
·Firstly, a considerable period of time had elapsed between the most serious of those incidents, being the burning of his [possession] and the shooting attack on the applicant in 2006 and his first return to Iraq in 2013. It is not implausible that by the time of the applicant’s return, the passage of time meant that he did not have a current or sufficiently adverse public profile as would attract attention from the Mahdi Army or other militias operating in Iraq;
·Secondly, the applicant’s protection claims were linked closely to his employment and business interests at the time, which were no longer in existence at the times of his returns between 2013 and 2018. During each period of return he stayed in the family compound in Basra, which is the same place he was able to take shelter between 2006 and 2010 without further incident;
·Thirdly, the applicant was collected on each occasion from the airport by his family and stayed during his visits at the family compound, in effect a village comprising [a number of ] households of the applicant’s direct paternal relatives. In such circumstances I accept the chances of being discovered by the militia groups who targeted the applicant in 2006 were significantly reduced.
I note the applicant’s travel to Iraq was disclosed to the Department in his passenger cards and airport interviews and was not in breach of any visa condition. The contemporaneous records of his airport interviews are materially consistent with both the claims in his protection visa application and the circumstances he now describes about his returns. I accept that while he had some concerns for his personal safety during these periods of return, those concerns were ultimately outweighed by the arrangements made by his family to protect him during his returns and his concerns for and obligations to his family, particularly his elderly and ailing father.
For these reasons, I am not satisfied the applicant gave incorrect information in his protection visa application as to the events he says occurred in Iraq prior to his departure from that country in 2010, his claimed adverse profile as a wealthy businessman or his fear of harm from the Mahdi Army in Iraq. While his desire to see his family has at times outweighed his fear of harm in that country, I do not consider his returns to visit his family between 2013 and 2018 indicate he gave incorrect information about events that occurred in Iraq between 2006 and 2010, nor that he did not fear harm from the Mahdi Army in Iraq when he made his claims for protection upon arriving in Australia in 2011. It follows that I do not accept the applicant provided incorrect information about his profile or his fear of harm in Iraq in his protection visa application.
Conclusion on non-compliance
For the above reasons, I find that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
The second, third, fourth, fifth, sixth, seventh and eighth review applicants
As I have noted above, it may be that the second named review applicant has an outstanding protection visa application before the Department, with or without the other applicants. I am not able to determine whether that is the case from the information before me. Even if it is the case, there is no reviewable decision before me that would enliven the Tribunal’s jurisdiction to review any separate decision made in relation to that matter.
For the reasons set out above and for the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.[8]
[8] Rani & Ors v MIMA (1997) 80 FCR 379, Tien & Ors v MIMA (1998) 89 FCR 80 at 96, Farah v MIAC [2011] FCA 185.
However I note the Department’s Policy Guidelines which relevantly state:
Set aside of s109 cancellation decisions
Section 114(1) of the Act states that if a s109 cancellation is set aside by the Federal Court, Federal Circuit Court, the AAT, the visa is taken never to have been cancelled.
The Act does not expressly set out how this affects any consequential s140 cancellation. It is policy, however, that a consequential s140 cancellation would also be set aside in the same manner as the s109 cancellation. That is, any visa that was consequentially cancelled under s140 would be taken to never have been cancelled.
In view of the Department’s Policy Guidelines, I understand that cancellation of the visas of the second and third named review applicants will be set aside in the same manner as the current cancellation.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
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.