1726860 (Refugee)

[2019] AATA 3579

1726860 (Refugee) [2019] AATA 3579 (15 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726860

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Alison Murphy

DATE:15 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 15 August 2019 at 11:25am

CATCHWORDS
REFUGEE – protection visa – Iraq – threat by tribe to kill – threat of fraudulent charges – voluntary return on four occasions despite fears for safety – mere suspicion not sufficient to establish ground for cancellation – decision set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant is a [age] year old male from Najaf, Iraq. He arrived in Australia by boat [in] September 2010 and made claims for protection. He was assessed as being a refugee on 10 January 2011 and granted a protection visa on 5 May 2011.

3. On 31 October 2017, a delegate of the Minister made a decision to cancel the applicant’s protection visa on the basis that the delegate considered he had given incorrect information in his protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 18 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   ISSUES FOR DETERMINATION

7. 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.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Non-disclosure certificate

9. The Tribunal has before it the applicant’s departmental files, being the files relating to his protection visa application and its cancellation. In the case of [the cancellation file], 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.

10. 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.

11. In this case, the certificate dated 21 December 2018 states that the disclosure of the redacted parts of documents identified in the certificate by folio number would be contrary to the public interest because they contain the full names and contact details of departmental officers which have not previously been disclosed to the applicant or his representative. It also states the redacted information was necessary to include in the documents at the time to facilitate the investigation and processing of the cancellation case, it is not relevant to the information relied upon or used for the cancellation case and its non-disclosure is required to ensure the personal safety and privacy of the Department’s officers. A copy of the non-disclosure certificate was provided to the applicant at hearing.

12. The s.438 certificate is misconceived. As the information referred to in the certificate has been redacted in the file provided to the Tribunal, the redacted information is not material given to the Tribunal by the Department for the purposes of s.438. The Tribunal cannot disclose material that is not before it and the circumstances envisaged by s.438 do not arise.

    LEGISLATIVE FRAMEWORK

13. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

    The s.107 notice

14. 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.

15. In the current case, the s.107 notice was issued on 5 August 2016. The notice set out the applicant’s protection claims contained in his visa application and associated statutory declaration made 6 November 2010 as follows:

    Your Protection Visa Claims

    [In] September 2010, you arrived as an irregular maritime arrival at Christmas Island.

    On 6 November 2010, you lodged a Request for a Refugee Status Assessment ('RSA').

    On 10 January 2011, the delegate made a Positive Assessment of the RSA and found you were a person to whom Australia owed protection obligations in relation to Iraq.

    The delegate stated in the RSA that "The claimant fears that members of [Tribe] will kill him if he was to return to Iraq. Furthermore, he is scared that he will be jailed a result of the fraudulent charges against him.'

    On 1 May 2011, you lodged a Form 866 - Application for a Protection (class XA) visa.

    You provided answers to the following questions at Part C — 'Your reasons for claiming protection' of the Form 866.

    Question 41 - 'I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries)

    You stated 'Iraq'.

    Question 42 - 'Why did you leave that country?'

    You stated 'Please refer to my statutory declaration attached to my RSA.'

    Question 43 - 'What do you fear may happen to you if you go back to that country?'

    You stated 'Please refer to my statutory declaration attached to my RSA.'

    Question 44 - 'Who do you think may harm/mistreat you if you go back?'

    You stated 'Please refer to my statutory declaration attached to my RSA.'

    Question 45 - 'Why do you think this will happen if you go back?'

    You stated 'Please refer to my statutory declaration attached to my RSA.'

    Question 46 - `Do you think the authorities of that country can and will protect you if you go back? If not, why not?'

    You stated `Please refer to my statutory declaration attached to my RSA.'

    Your Statutory Declaration declared on 6 November 2010, attached to your RSA, stated:

    ‘(1). Introduction

    I am a citizen of Iraq.

    (2). The reason I left Iraq

    In 2006 I met a girl called [Ms A]. I gave her and her mother a lift home and got her telephone number. Her father was a [occupation] and a member of the Badr Brigade.

    We had to meet in secret. I would call her and when her father went out to work I would pick her up and take her out. We continued to meet in this was until 2009, during this time our relationship developed. We fell in love and decided we wanted to marry.

    In early 2009 my mother and [siblings] went to see [Ms A]'s mother and told her that I wanted to marry her. They said they would give us an answer in 2 or 3 days. About 3 days later they told my mother that [Ms A] did not agree to marry me. I knew this was not true. When I asked her what had happened she said that her father had asked why she was willing to accept me, but had refused the others. l sent people to speak to him on my behalf to try and persuade him to allow us to many. Finally I went to the [building] where he worked and asked [a colleague] to help. He tried to arrange a meeting to discuss the issue, but [Ms A]'s father refused to attend. Instead he went to the Sheik of my tribe to complain about my persistence in trying to marry his daughter. He said that if I continued to pursue [Ms A] there would be war between [my tribe]. The Sheik from my tribe was angry with me and insisted that I stop pursuing [Ms B] and marry a young girl called [Ms B] who was only [age] years old. Her family had also been forced by the tribe to agree to the marriage. I tried to refuse, but the Sheikh threatened to kill me if I did not comply with his orders. Because of this I agreed and we got married in [year]. I married [Ms B] and took her to live with my family, but we never lived together as husband and wife. We took care of her.

    In June 2010 [Ms A] called to say that her father was going to force her to marry someone else. She did not want to marry him and asked for my help. She said that we had to run away together and that if I did not agree she would kill herself. She said that if we lived together and she was no longer a virgin her father would agree to our marriage.

    I rented a house in [Location] in Najaf and two days later we went to live there. For 15 days we lived together at the house. Her family called her on her mobile but she ignored their calls. Then they sent a message saying that she should return home and I should come a couple of days later to ask for her hand and we would not tell anyone about the time we had spent together.

    I did not want [Ms A] to go, and suggested we send someone to talk for us, but she trusted her father and agreed to this arrangement. I dropped her off near her house and that was the last I heard from her. I do not know what has happened to her, but I think she has been killed.

    I tried to call her, but she did not answer. I knew that something had happened and that I would not be safe so on 15 June I left and went to [Town 1]. After I arrived in [Town 1] my [sibling] called to tell me that my family home had been bombed and one of my siblings had been injured. He told me that [Ms A]'s father had come some men with a shoulder carried missile launcher and fired at the house. After that my family went to live in Al Dewanya, but were able to return after they paid money to tribe.

    I stayed in [Town 1] for about two weeks in a hotel, but I had no contacts there      who could help me so I moved to [Suburb] in Baghdad to stay with a friend    called [Mr A]. While I was there [Ms B]'s father called me and told me I had     to divorce his daughter, which I did.

    I did not tell my family where I was, but we were still in contact by telephone.        My friend [Mr B] was the only person who knew where I was. While I was in     Baghdad there was a meeting between my tribe and [Ms A]'s tribe. They      agreed that the problem was with me individually. They signed an agreement        to this affect which also says that they have agreed that I should be killed. My         family was given a copy, which they gave to [Mr C] and he sent me a copy.

    Shortly after this four men came to [Mr A]'s house and asked for me. He told       them l was in [Town 1]. After this I decided to leave Iraq. My friend [Mr A]      helped me to get a false passport and make the arrangements. I told my family I was going to [Country 1]. Only [Mr B] knows where I am.

    About two weeks ago I spoke to my [Mr B] on the phone. He told me that our       shop had been burned down by Badr Brigade members. I asked him to email     them to.

    On [date] the police came to my house and gave my family copies of a court order and warrant for my arrest. Because I did not give myself up as demanded in the documents [Ms A]'s father came to the house about 10 days later with members of the Badr Brigade and searched it. I only found out about this about 10 days ago when I spoke to [Mr D] on the phone. I asked him to give the documents to [Mr B] and he sent them to me.

    What I fear may happen to me if I return:

    I fear that I will be jailed as a result of fraudulent charges which have been           brought against me and that I may be killed.

    Who might harm me if I return:

    I fear [Tribe].

    Why I think that might happen to me if I return:

    I fear persecution for reasons of membership of the particular social group of       people who have transgressed tribal and religious laws.

    Do I think the authorities can protect me if I return?

    The authorities will not protect me as they will not oppose the tribes and at the local level [Ms A]'s father is a [occupation] who belongs to the Badr Brigade and as a result he has considerable power.'

    Based on the information provided for the Form 866, the delegate found you satisfied the criteria for the visa and granted you a subclass 866 Protection visa on 5 May 2011.

16. The s.107 notice went on to state that the Department had subsequently received information which was contrary to the above information, being that since the grant of the applicant’s protection visa, he had voluntarily returned to Iraq on four occasions for a combined period of more than 12 months. The s.107 notice set out detailed reasons for believing the applicant had returned to Iraq between October 2011 and February 2012; September 2013 and January 2014, October 2014 and January 2015 and January 2016 and March 2016. As the applicant agrees he returned to Iraq during each of those periods, it is not necessary to set out those reasons here.

17. The s.107 notice recorded that the applicant had stated in his form 866 that he feared he would be jailed as a result of fraudulent charges which have been brought against him and that he may be killed. He also claimed that on [date] the police came to his house and gave his family copies of a court order and warrant for his arrest.

18. The s.107 notice set out that the applicant’s return to Iraq on a regular basis involved multiple contacts with the Iraqi border authorities without apparent harm to the applicant. The s.107 notice stated that this indicated the applicant did not face any real risks or detrimental consequences as he had claimed to fear if returned to Iraq. Therefore the delegate considered the applicant did not hold the profile or risk and fear of returning to Iraq, for the reasons claimed in his protection visa application.

19. The applicant responded to the s.107 notice by submissions lodged by his representative on 7 April 2017, 13 April 2017 and 12 July 2017.

20. In those responses the applicant agreed that he had returned to Iraq during each of the periods identified by the Department above, however he denies that he provided incorrect information or that his returns indicate he did not genuinely fear harm in that country. Rather he claims that each of his return trips to Iraq since 2011 were for the purpose of ensuring the safety of his wife and mother and trying to arrange their removal to [Country 2] until he could make other plans. He claims that on each occasion he took steps to ensure the Iraqi authorities were not aware of his re-entry and to mitigate his risk of harm.

21. In a written statement dated 6 April 2017, the applicant provided further information about events that had occurred since the visa was granted to him and each of his returns to Iraq (in summary).

    ·In late 2011, he received a panicked phone call from his mother who told him [Ms A] had arrived at his family home in Najaf and both women were distressed and panicjed. He suggested his mother and [Ms A] flee to [Town 1], but his mother didn’t believe that was safe. His mother took [Ms A] to her [sibling]’s home in Erbil, in Iraq’s autonomous Kurdistan region;

    ·Between October 2011 and February 2012, the applicant returned to Iraq to check his mother and [Ms A] were safe. He flew into Erbil airport, which is administratively separate from the rest of Iraq and has its own entry and exit procedures. He believes his mother and [Ms A] were sponsored by his [relative]. [Ms A] was very unwell with a broken arm, [medical condition] and undernourished. All her documents remained in her father’s custody and the applicant was afraid that if they made contact with the Iraqi authorities to have her documents re-issued, her father would be alerted. He spent his time during his first trip getting [Ms A] medical treatment and trying to arrange false documents that would allow [Ms A] to leave Iraq. He was unable to resolve these issues during his stay;

    ·His mother and [Ms A] remained living in Erbil between the applicant’s first and second trips to Iraq. The applicant returned between September 2013 and January 2014, again flying into Erbil. He continued to try and and get [Ms A] to [Country 2] but the land borders with [Country 2] and [Country 3] were strongly guarded and [Country 4] was not safe. He again spent his time trying to arrange travel documents for Khadjia, paying $2000 to a man who promised to get a passport within 2 days. The passport did not eventuate and [Ms A] was still without documents at the time he returned to Australia;

    ·He returned for the third time between October 2014 and January 2015, by which time his mother and [Ms A] had relocated to [Town 1] as the authorities in Kurdistan were making it more difficult for Arabs to remain in Erbil. The purpose of his trip was to try and arrange documents that would allow [Ms A] to leave the country. His [sibling]’s friend, [Mr E], was a customs officer working in the airport authority in Southern Iraq. He worked mainly in [Town 1] but warned he could be posted to other airports at short notice. They arranged that [Mr E] would escort the applicant through airport security on arrival in [Town 1]. The applicant arranged his return flight to coincide with a time that [Mr E] was working, but when he contacted [Mr E] from [Country 1] [Mr E] told him he had been station in Najaf that day so that applicant had to miss his original flight and buy a connecting flight to Najaf. When he arrived in Najaf he sought out [Mr E] at the counter who stamped his passport and let him through and his [sibling] collected him and drove him straight to [Town 1];

    ·He returned to Iraq for the fourth time between January and March 2016, flying into [Town 1]. His [sibling] found a person called [Mr F] who said he could national identity documents issued for [Ms A] in another name and he paid [Mr F] $40,000 in three instalments for those documents. They arranged that [Mr F] would produce the National Identity Card and marriage certificate first and a citizenship certificate later. The documents were delivered about a week before the applicant left Iraq;

    ·While the applicant was in a market in [Town 1] arranging a money transfer to his [sibling] for the documents, he saw one of [Ms A]’s [relatives] at the market. That person recognised him immediately and began to shout at him before pushing him out of the shop and calling others towards them. The applicant ran away and managed to return home. He had been intending to stay in [Town 1] longer, but cut short his trip and changed his ticket to the next available date, flying out two days after this incident;

    ·After [Ms A]’s family realised the applicant had returned to Iraq, they began threatening his [sibling]. The police also served another warrant for the applicant’s arrest on his [sibling]. In response, the applicant’s clan issued a notice saying they had excluded the applicant from their clan. The two clans had a further attempt to mediate the dispute, with the clans agreeing that it had gone too far and the applicant’s [sibling] had to be left out of it. This is the only reason his [sibling] has been able to continue to live in Najaf;

    ·If the applicant is returned to Iraq, at some stage [Ms A]’s family will locate them. The applicant will come into contact with the police who will imprison him.

1. At hearing the applicant gave evidence that was broadly consistent with the events outlined above. He stated that [Ms A] and his mother had fled [Town 1] for [Country 2] 3-4 months earlier. They left Iraq after his mother told him that someone had called asking for her address, telling her that he had a few things which the applicant had asked be delivered to his family. The applicant told his mother he had not sent her anything. Upon realising his mother had told that person their address, he called a friend to collect his mother and his wife who travelled to [Country 2] from [Town 1]. The applicant sends money to them as does his [sibling]. His mother is sick from the stress and has suffered a strike in [Country 2].

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

2. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

3. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

4. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 in the following respects (in summary):

   ·that the applicant had stated in his form 866 that he feared he would be jailed as a result of fraudulent charges which have been brought against him and that he may be killed. He also claimed that on 20 September 2010 the police came to his house and gave his family copies of a court order and warrant for his arrest;

   ·that the applicant’s return to Iraq on a regular basis involved multiple contacts with the Iraqi border authorities without apparent harm to the applicant. The s.107 notice stated that this indicated the applicant did not face any real risks or detrimental consequences as he had claimed to fear if returned to Iraq. Therefore the delegate considered the applicant did not hold the profile or risk and fear of returning to Iraq, for the reasons claimed in his protection visa application.

5. In essence, the applicant denies providing any incorrect information in his protection visa application and claims that he continues to hold serious fears for his safety in Iraq from [Ms A]’s family and the Iraqi authorities. He maintains he returned to Iraq despite these fears in order to ensure the safety of his mother and wife [Ms A]. He claims he was able to avoid arrest on return by flying into the autonomous region of Kurdistan in 2011 and 2013, and paying a customs officer to allow him passage through Najaf and [Town 1] airports in 2015 and 2016.

   The applicant’s returns to Iraq in 2011, 2013, 2014 and 2016

6. The applicant returned to Iraq using a combination of his Iraqi passport and a number of Australian Titre de Voyages issued to him, copies of which are contained on the departmental file (save for the earlier Titre de Voyage). Those documents contain a number of entry and exit stamps for his returns to Iraq, although on the copies before the Tribunal the dates of some of those stamps are illegible.

7. I note though that the ITOA delegate accepted that the applicant entered Iraq via Erbil, Kurdistan on his first and second returns, exiting through Erbil on the first occasion and [Town 1] on the second occasion. The digital copy of the applicant’s Australian travel document submitted to the Tribunal after the hearing confirms he exited Iraq through Kurdistan on 18 February 2012. I accept the applicant entered Iraq via Erbil in 2011 and 2013, exiting through Erbil on the first occasion and [Town 1] on the second occasion.

8. Country information cited in the ITOA decision (and reproduced in the delegate’s decision) records that the Kurdistan Region of Iraq (KRI) is autonomous of the Iraqi federal government. The ITOA delegate accepted that the applicant’s return to Iraq through Kurdistan could have insulated him from the harm he feared from the Iraqi authorities.

9. At hearing I discussed with the applicant country information suggesting that while the KRI is autonomous and operates its own entry and exit procedures, the Kurdistan Regional Government authorities have been given access to the database of the Iraqi federal government[1]. I also discussed with the applicant DFAT”s latest report issued in October 2018, which suggests that authorities at all international airports in Iraq, including the Kurdistan Region, record the identity information of all passengers and will arrest an Iraqi on return if a warrant has been issued on their arrest[2]. That information tends to suggest that the KRG authorities would have been aware of the applicant’s extant arrest warrant issued by the Iraqi authorities and arrested him on arrival.

   [1] The Danish Immigration Service and LandInfo ‘Northern Iraq: Security Situation and the Situation for Internally Displaced Persons in the Disputed Areas including the possibility to enter and access the Kurdistan Region of Iraq’  November 2018

   [2] DFAT DFAT Country Information Report: Iraq October 2018 at 5.20

10. At hearing the applicant maintained that no checks against Iraqi government databases were undertaken by KRG officials on either of his entries into Erbil in 2011 and 2013. It was submitted that the country information cited by the Tribunal was more recent than the applicant’s entries and exits from Erbil in 2011 and 2013 and was not indicative of the situation at that time.

11. Other country information suggests the situation for Iraqis arriving at international airports in Kurdistan may not be so clear cut, particularly at the time the applicant returned in 2011 and 2013. DFAT’s 2015 report does not make mention of security checks at the Iraqi border, either on the mainland or in the KRI.  Similarly the Danish Immigration Service’s 2011 report on entry procedures suggests that despite claims by the KRI authorities to the effect that entry procedures are the same throughout the three governorates in KRI, external  organisations report that different processes are applied:

    UNHCR Iraq as well as UNHCR Stockholm have stated that “It has been observed over the past year that approval or denial of entry into the KR[I] is not applied systematically and may depend on a number of factors, including who the officer in charge at the time of entry”.

    Furthermore, UNHCR Stockholm has stated that “It has been noted that whilst the KRG authorities claim to have a unified or uniform policy for entry and staying in KRG, it is evident that in practice this is not the case. Both checkpoints and the issuance and renewals of the information cards vary between governorates. Inconsistencies have been notes in entry procedures that are followed at the checkpoints from one day to the next.”…

    … According to PAO/PAC the security procedures at the arrival hall at Erbil International Airport are less strict than at KRG checkpoints. Flight passengers coming from Baghdad enter KRI much easier than those travellers entering through the borderline checkpoints as flight passengers are not considered by the authorities to be a security risk to the same extent as overland travellers could be. Flight passengers may be seen as wealthier than overland travellers and thus less susceptible to be exploited by terrorists[3].

    [3] Danish Immigration Service ‘Update on Entry Procedrures at Kurdistan Regional Government (KRG) Checkpoints and Residence in Kurdistan Region of Iraq (KRI)’ 24 March 2011 at p13

12. Other sources cited in that report suggest that deviations from the normal procedures may occur due to changing security concerns and precautions, and even that the procedures are applied arbitrarily depending on the mood of the officer in charge[4].

    [4] Ibid at 14

13. In addition, a 2011 Denver Journal of International Law and Policy article on the Iraqi criminal justice system indicated that the federal Iraqi authorities did not maintain a centralised database of outstanding arrest warrants at that time:

    Most on-scene criminal investigations are conducted by Ministry of Interior (MOI) personnel – either Iraqi National Police, Iraqi Police, or investigators from the MOI Criminal Investigations Division (CID). Many police precincts, at least in Baghdad, have resident investigative judges (or close access to a judicial facility) who can issue arrest warrants on short notice. MOI personnel thus bring the individuals arrested into the system, and their case file is created at the local level. The MOI personnel eventually transfer them to a regional holding facility before ultimately passing them to the custody of the Ministry of Justice (MOJ), which owns both the courts and the prisons. The case file, however, is transferred to one of the two main police General Directorates in Baghdad – al-Karkh and al-Rusafa.

    It appears that the MOJ apparatus does not have accurate copies of the MOI information. Thus, when the deadline for release comes up, no judge can make an accurate assessment of whether the individual should be released because the case file is incomplete.[5]

    [5] 'The Iraqi Criminal Justice System, an Introduction', Warnock, D L, Denver Journal of International Law and Policy, vol.39, no.1, Winter 2011, pp.33-35, CISD9559B12642

14. In relation to his returns in 2014 and 2016, the applicant claims to have bribed a customs official to grant him clearance through Najaf and [Town 1] airports without the usual database checks. DFAT reports that corruption is widespread in Iraq and many Iraqis do not trust the police or security forces because of pervasive corruption. Iraq ranks 169 out of 180 countries on Transparency International’s 2017 Corruption Perceptions Index. The issuing and updating procedures for identity documents are susceptible to bribery and corruption[6].

    [6] DFAT DFAT Country Information Report: Iraq 9 October 2018 at 2.18, 5.7, 5.27

15. The 2015 DFAT report describes ‘endemic corruption’ as a significant problem, affecting all aspects of life and noting that Iraqis routinely expect to pay bribes to obtain services. Transparency International ranked Iraq as 171^st out of 177 countries in 2013. DFAT assessed that procedures for issuing identity documents were antiquated and issuing and updating procedures were open to bribery and corruption[7].

    [7] DFAT DFAT Country Information Report: Iraq 29 November 2015 at 2.14 and 5.37

16. Although the number and duration of the applicant’s returns to Iraq raise suspicions as to the truthfulness of his claims in 2011 relating his fear of harm in that country, the Australian courts have made clear that 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[8]. For the following reasons I am unable to reach a real state of satisfaction that the applicant provided incorrect information in his protection visa application:

    ·The country information cited above lends support to the applicant’s claims to have been able to enter Iraq via the Kurdistan Region of Iraq in 2011 and 2013 despite the claimed extant arrest warrant issued by the Iraqi Federal Government. Nor is the applicant’s claim to have paid a customs official to facilitate his entry through [Town 1] and Najaf airports implausible in light of the country information. For these reasons I am not satisfied that the applicant’s returns to Iraq would necessarily have come to the attention of the Iraqi authorities;

    ·The documentary evidence would appear to corroborate the applicant’s claims. An airport referral on the departmental file indicates the applicant was interviewed at the airport on his departure from Australia on 19 January 2016. He is recorded as stating that he would return to Australia on 14 April 2016. Departmental movement records show he returned to Australia on 25 March 2016 and this is consistent with the applicant’s claim to left Iraq earlier than planned after meeting [Ms A]’s [relative] in the market in [Town 1];

    ·The applicant has supplied original boarding passes and an itinerary indicating he was booked to fly from [Country 1] to [Town 1] at the beginning of his third return trip to Iraq on October 2014. An Iraqi airways booking slip date stamped  October 2014 appears to show he purchased another flight into Najaf on that date. This is consistent with his evidence that he rang [Mr E] from the airport in [Country 1] and learned he was stationed in Najaf that day and not [Town 1], causing the applicant to deliberately miss his connecting flight to [Town 1] and purchase a new flight into Najaf;

    ·While the person the applicant sought to sponsor on a partner visa has a different name to [Ms A], this is consistent with the applicant’s evidence that he obtained genuine documents for [Ms A] using a false name as her own identity documents remained with her father. Even if the applicant’s evidence in that regard is untrue and the woman he has married since his arrival in Australia is not [Ms A] but another person entirely, it doesn’t follow that the claims in his protection visa application about [Ms A] are necessarily untrue. This is particularly the case given he stated in his protection visa application that he believed [Ms A] may have been killed by her family or tribe. 

    [8] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

17. For these reasons, I am not satisfied there was non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

    DECISION

18. 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.