1728983 (Refugee)

[2019] AATA 6435

1728983 (Refugee) [2019] AATA 6435 (16 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1728983

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Sean Baker

DATE:16 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 16 August 2019 at 12:53pm

CATCHWORDS   
REFUGEE – cancellation – protection visa – Iraq – incorrect answers in protection visa application – name – different transliterations from Arabic by interpreters and departmental officers – same Arabic name on passport and several other identity documents – voluntary return to home country on four occasions totalling 11 months, the first occasion three months after grant of protection visa – urgent family matters – travel to relative safe area – return suggestive but not determinative, but does not displace findings on applicant’s claims – applicant may hold fears which do not eventuate – onus of establishing facts on minister/department – family’s integration into life in Australia, including own business and older child’s schooling – younger child may be an Australian citizen – rights of the child and principle of family unity – hardship in returning to and re-establishing life in Iraq – decision under review set aside

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

CASE

Mian v MILGEA (1992) 28 ALD 165

Singh v MIEA (unreported, 6 December 1994)

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 delegate cancelled the visa on the basis that the applicant had provided incorrect information in his protection 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.

3. The applicant appeared before the Tribunal on 15 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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.

7. 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.

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

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 in the following respects:

   Section 101 Visa applications to be correct:

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

   …

   (b) no incorrect answers are given or provided.

9. The applicant arrived in Australia and made a request for a refugee status assessment. His application was refused at first instance, but an independent merits reviewer recommended he be recognised as a person to whom Australia has protection obligations. He then lodged a protection visa application.

10. The decision record sets out that on 23 March 2017 the applicant was notified that the department considered the applicant did not comply with section 101(b) of the Migration Act 1958. This section provides that a non-citizen must fill in his or her application form in such a way that no incorrect answers are given or provided.

11. The Notice of Intention to consider cancellation (NOICC) stated that breach of the above occurred when the applicant lodged their application for a Protection Visa on 26 September 2011. The delegate considered that the applicant may have provided incorrect answers to questions in their protection visa application.  Relevantly, in his application, he claimed that he feared persecution because he had transgressed tribal and religious laws in having an adulterous relationship with [Ms A]. [Ms A]’s father was a member of the [Name] tribe and belonged to the Dawa Party. The visa holder feared that various agents of persecution in Iraq would target him because of these transgressions, his religion and his imputed political opinion.

12. The following reasons were put to the applicant for comment in the NOICC:

    The applicant did not declare that he was known by the name [Name 1, spelling 1] [Name 2, spelling 1] [Name 3, spelling 1] [Surname, spelling 2]

    ·This has been found to be his correct identity as reflected in his Iraqi passport and several other identity documents.

    The applicant returned to Iraq after his protection visa was granted for a cumulative period approximately 11 months, over four trips between 2012 and 2015, without apparent harm or issue.

    ·The applicant claimed that if returned to Iraq he would be killed by the girl's family or tribe. He claimed an adverse profile, fear of [Ms A]'s father, his fellow tribe members and his associates from the Dawa Party.

    ·These actions of returning to Iraq appear to be in contradiction with the above claims.

    The above evidence may lead to concerns about the credibility and reliability of claims. It may also lead to a finding that Australia does not have non-refoulement obligations in relation to you.

13. The applicant responded to the NOICC:

    Difference in applicant’s name

    ·The difference in the spelling of his name is due to the way in which the phonetic sound of the name was transliterated when he first arrived in Australia

    Return trips to Iraq

    ·His four return visits to Iraq were for urgent family matters and that circumstances forced him to return, rather than him wanting to go back

    ·His return to Iraq was due to his reliance on advice from the Department.

    ·Despite his return, the applicant still held a fear of being in Iraq and he affirms his original claims.

    ·His fear of the family members of [Ms A] was genuine and [Ms A]’s family killed her. Given that they killed her the applicant has posed the question why he would not be considered to hold a fear of being harmed.

    ·His shop was burnt down, providing further evidence that he is currently of an adverse profile to [Ms A]’s father.

    Discretionary factors

    ·The applicant also requests the delegate consider the following in making their decision

    ·Integration into Australian community: The applicant owns property, runs a business employing other staff, and has two children who are growing up in Australia, one of whom is an Australia citizen by birth ([Child 2])

14. The Department made a decision cancelling the applicant’s visa. The same analysis was reiterated as set out in the NOICC as to the applicant’s breach of section 101(b) of the Migration Act 1958. The following findings were made by a delegate of the Department as to the considerations raised in the applicant’s response to the NOICC:

    ·The discrepancy of the applicants name could possibly be due to transliteration, and that phonetically they may sound alike, however his Iraqi identity documents could have been provided earlier to the department

    ·The applicant voluntarily returned to Iraq in order to see his family. The total period of 11 months would demonstrate a significant amount of risk in relation to the strong protection claims made. The applicant however suffered no harm. These two factors pose credibility concerns regarding the applicants claimed adverse profile in and fears upon return to Iraq.

    ·There is no evidence that the applicant made any attempt to arrange for his family to travel to a nearby safe country in which they could meet.

    ·The applicants indication that travel to Kurdistan, which is still within Iraq, was safer than Iraq was found  to be inconsistent with his initial claims that he could not re-locate to any part of Iraq

    ·The applicant’s wife and child had been living independently for several years, for him to go back to pack up their effects and get them to the airport appears reckless and indicative he does not have an adverse profile.

    ·It is inevitable that family members will require medical treatment at some stage, and the delegate considered the applicant’s fears against the already available support to his mother and wife did not justify this travel

    ·The applicant’s reason that he returned to Iraq because the Department advised him so, could not be verified with departmental records. There was one phone note from 2015 where the applicant attempted to ascertain how a period offshore would affect his eligibility date for citizenship.

15. The applicant’s wife and [child 1]’s visas were consequentially cancelled.

16. The specific findings of the delegate were:

    - At question 4 of the Form 866, where the visa holder claimed to not be known by any other names is incorrect as it has been confirmed that he has been known by the name [Name 1, spelling 1] [Name 2, spelling 1] [Name 3, spelling 1] [Surname, spelling 2] and that this may in fact be his correct identity.

    - At question 41 of the Form 866, where the visa holder claimed to fear returning to Iraq, this is incorrect because he has voluntarily returned to Iraq on four occasions totalling a period of 11 months without apparent incident. I consider that the visa holder was not of adverse interest to [Ms A]’s father, his fellow tribe members and his associates from the Dawa Party and therefore he did not hold the claimed adverse profile at the time of his Protection visa application.

    - At question 42 of the Form 866, as referred to in a statutory declaration, the visa holder claimed that based on his relationship with [Ms A], he was constantly harassed and threatened by her family. He moved to several different locations however still faced the same threat, and this eventually led him to believe that he was not safe in any part of Iraq. The visa holder therefore made arrangements to leave Iraq. I consider this to be incorrect as the visa holder has voluntarily returned to Iraq, the first travel shortly after the grant of his Protection visa, on four occasions totalling a period of 11 months without incident. I consider that the visa holder was not of adverse interest to [Ms A]’s father, his fellow tribe members and his associates from the Dawa Party and therefore did not hold the claimed adverse profile at the time of his Protection visa application.

    - At question 43 of the Form 866, as referred to in a statutory declaration, that “I fear that I will be killed” is incorrect as the visa holder has voluntarily returned to Iraq on four occasions totalling a period of 11 months without incident. I consider that this suggests that he was not of adverse interest to [Ms A]’s father, his fellow tribe members and his associates from the Dawa Party and therefore did not hold the claimed adverse profile at the time of his Protection visa application.

    - At question 44 of the Form 866, as referred to in a statutory declaration, that “I fear [Ms A]’s father, his fellow tribe members and his associates from the Dawa Party.” is incorrect as the visa holder has returned to Iraq on four occasions totalling a period of 11 months without incident. This suggests that he was not of adverse interest to [Ms A]’s father, his fellow tribe members and his associates from the Dawa Party and therefore did not hold the claimed adverse profile at the time of his Protection visa application.

    - At question 45 of the Form 866, as referred to in a statutory declaration, where the visa holder claimed “I have been targeted because of my relationship with [Ms A]. This relationship is seen as transgressing religious and tribal laws. Because of this I am seen as someone who opposing Islam and as part of the particular social group of people who have broken tribal customs” is incorrect as he returned to Iraq on four occasions totalling a period of 11 months without incident. I note that the visa holder travelled back to Iraq shortly after the grant of his visa (3 months). I consider that the visa holder’s return to Iraq under an identity he claimed is of adverse interest, without issue, suggests that he did not hold the claimed adverse profile with [Ms A]’s father, his fellow tribe members and his associates from the Dawa Party that he stated in his Protection visa application.

    - At question 46 of the Form 866, as referred to in a separate statement, where he claimed “[Ms A]’s father is a powerful man who belongs to the ruling party. The authorities will not protect me from him or those who work for him” is incorrect as the visa holder has returned to Iraq on four occasions totalling a period of 11 months without incident. This suggests that he did not hold the claimed adverse profile with [Ms A]’s father, his fellow tribe members and his associates from the Dawa Party that he stated in his Protection visa application.

    The applicant’s name

17. Departmental systems record the applicant’s name as [Name 1, spelling 2] [Name 2, spelling 2] [Name 3, spelling 2] [Name 4] [Surname, spelling 1]. Looking at the protection application file ([file number]), it appears that when he made claims for protection in 2010 he provided his Iraqi citizenship certificate, ID card, residency card, [occupation]’s certificate (an Arabic and English version), marriage certificate, wife’s ID card and citizenship, and [child 1]’s birth certificate. Apart from the [occupation]’s certificate, which records his name as ‘[name 1, spelling 3] [name 2, spelling 3] [name 3, spelling 3]’, these are all in Arabic. It does not appear that the Department had these documents translated at this time. It appears that the form of the applicant’s name which entered the Department systems was therefore based only on an interpretation of his name from Arabic to English, most likely by an interpreter as the applicant did not speak English at this time. There appears to have been some confusion with the transliteration of his name at this time, as at several places a version of his name has been crossed out and amended in several places (for example, Df.42, 60). This appears to have been an issue raised by an interviewee although there does not appear to have been a move to translate the identity documents, rather the interviewee notes the inconsistencies and (Df. 92). In the RSA, the difficulties with his name are recorded, including that he identified himself as [Name 1, spelling 1] [surname, spelling 3] but he is recorded with the name [Name 1, spelling 2] [Name 2, spelling 4] in ICSE and the decision maker notes it is unclear why. The ICSE record was amended, and amended again when at the interview above, he has provided the name which was then entered in ICSE. In the decision the provision of the identity documents above is noted, but not whether they confirm his name or not. the decision maker accepted the applicant’s identity.

18. The applicant’s identity appears to have been accepted since that time as [Name 1, spelling 2] [Name 2, spelling 2] [Name 3, spelling 2] [Name 4] [Surname, spelling 1] on the basis of a translation of his name given at that interview, rather than on any translation of any identity document. The issue does not appear to have bene raised further until the discrepancy with his passport is identified by officers investigating whether the visa is to be cancelled and copies of identity documents ([file number], Df. 18 - 15).

19. These identity documents have been translated, it appears by the post in [Country 1] in October 2015 (Df.24), and the passport is in English. It appears that these are the same Iraqi citizenship certificate, ID card, and residency card the applicant provided to the Department in 2010. If these had been translated in 2010, the discrepancy would have been clear at that point and this could have been explored with the applicant.

20. I note that in the cancellation decision the delegate said:

    In regard to the identified non-compliance at Question 4 of Form 866C which was in regard to the names which he has been known by, the visa holder has submitted that the discrepancy is due to the transliteration from Arabic used at the time of the application. I agree the differences could be because of transliteration and that phonetically they may sound like the same name. I do note the visa holder’s Iraqi identity cards were issued before his arrival to Australia, and so such discrepancies may have been avoided had the visa holder been more forthcoming about his identity at the time of his Protection visa application.

21. This appears factually incorrect – as above, the applicant had provided a large number of identity documents to the Department with the name [Name 1, spelling 1] [Name 2, spelling 1] [Name 3, spelling 1] [Name 5, spelling 2] at the time of his application for protection.

22. At hearing the applicant said that this was his name, that all of these documents were describing his identity, and he had not tried to conceal this identity at any stage, he had just been doing the best he could. He said that his name on his passport was an English transliteration by Iraqi officers, but they were writing in English which was not their first language. He explained that he had given this passport back to someone who was returning to Iraq when he was in [Country 2] and about to board the boat to Christmas Island. This person claimed that he had thrown all the passports away but subsequently it was revealed that he had kept them and had them in Iraq. The applicant provided a copy of this passport to the Department when he was on Christmas Island, in 2011. He said he was sent a scan by email and he printed this and gave it to the Department. I noted that I did not have this on the Department file. He said he did not think he had the email anymore. I have been unable to verify this aspect of his claims. He said that the name the Department recorded was the name he had told the interpreter (an interpreter provided by the Australian government on Christmas Island). He said he had raised concerns about the transliteration at the time but the interpreter had said that the applicant could change it when he went out into the community. The applicant explained that his name is a compound name of patronymics – [Name 1, spelling 1] is his name, [Name 2, spelling 2] is his father’s name, [Name 3, spelling 1] his grandfather and [Name 4, spelling 1] his great grandfathers, and [Surname, spelling 1] is the family name. He said that this is all the same name.

1. The question before me is whether the applicant has given or provided an incorrect answer in giving the form of his name which was recorded on Department systems.

2. I have carefully considered the information before me and the evidence of the applicant. I have some doubts about his claims of why he did not have his passport in 2010 but I am prepared to accept his explanation – in particular because, as below, the applicant has not derived any advantage from any speculative concealment of his identity – it did not lead to the reason or a part of the reason for him being granted protection and there does not on the material appear to be any other reason for concealing his identity or his passport. I also note that the applicant was forthcoming in 2010 providing a range of identity documents, any of which would have provided the version of his name on his passport. I accept that the different versions of his name are explained wholly by issues with transliterating Arabic names to English. I find that the version of the applicant’s name eventually accepted by the Department and placed on ICSE as his ‘genuine’ identity is based wholly on the transliteration of his name into English by an English- Arabic interpreter during the RSA interview held on Christmas Island [in] November 2010.

3. It appears to me that at no point has the applicant given or provided an incorrect answer to this question. He has provided identity documents with the same name as that in his passport once those documents were translated in October 2015. He has provided what appears to be the same name which has then been transliterated by an interpreter into a slightly different, but recognisably the same name in his RSA interview in 2010, which has then been accepted by the Department. He has not provided another version of his name as an alias under Q4 because as far as he was aware, he has provided his name already, and was not known by any other name. He was unable to provide his passport in 2010 to the Department as it was held by someone who had travelled back to Iraq.

4. I have thought carefully about this in light of ss.98 – 100. I accept that here the version of his name was provided in his visa application. But I consider, as above, that the ‘information’ that the applicant gave was his name, in Arabic. What was then reproduced on the forms was not the ‘information’ that he gave. This then has implications for s.100 and, below, for my finding in relation to s.101. The information, which is the answer he gave, was his name in Arabic. So the answer to the question was not incorrect (although it was placed on the form in a different version), and so it does not matter that the applicant also did not know the answer was different to the information he gave.

5. Relevantly, at no point as far as I am aware, has it been claimed by anyone that the non-provision of his passport, or the difference in his name was material to the outcome of his protection application or advantaged the applicant in any way.

6. I find that the applicant has consistently provided his name, in Arabic, to the Department, in providing his identity documents in 2010, in his application forms, and in the RSA interview. This name has been transliterated, it is clear from the file, in a variety of ways, but not by the applicant. Rather, interpreters and Departmental officers have made a good faith approximation of his name. The applicant, I find, has consistently provided information, orally, his name, in Arabic. I find that the applicant has not, therefore, given or provided an incorrect answer either to questions about his name, nor to Q4 which asks for different versions of their name by which the applicant is known – he has correctly answered that he is not known by any other name because the applicant has one name, in Arabic, by which he is known and can be identified and is consistent across his identity documents, which he provided to the Department in 2010, and in his passport which he did not have access to at the time to provide to the Department.

7. I find that this ground is not made out for the reasons above.

   The applicant’s return to Iraq

8. The applicant has returned to Iraq since the grant of his protection visa on four occasions, totalling approximately 11 months in total.

9. This raises a question about whether the applicant genuinely feared harm on return to Iraq as he claimed in his protection application. In particular, his first return trip to Iran took place three months after the grant of his protection visa.

10. The delegate notes that the travel ‘suggests that his claims provided on the Protection visa application, relating to holding an adverse profile and fear of [Ms A]’s father, his fellow tribe members and his associates from the Dawa party, and that he would face harm if he was to return to Iraq, are incorrect.

11. The applicant has explained that there were compelling family reasons for his return travel to Iraq on each occasion, that he took precautions and attempted to avoid harm from those he feared. He said that despite his return, he still held a fear of being in Iraq.

12. The delegate assessed these claims and concluded that:

    I consider the visa holder’s return to Iraq undermines his protection claims as he has submitted that his fear of [Ms A]’s family remains real, and yet, he continued to return to Iraq. According to the visa holder, this family made mortal threats against him, murdered the woman he was having a relationship with, burned down his shop and ultimately, drove him out of Iraq. The visa holder’s account is at the extreme end of the spectrum of claims one could make, and so given the tenaciousness of this family in their quest to bring harm to him, I do not consider there are any circumstances that would compel someone to return in the face of such grievous behaviour.

13. I have carefully considered whether the return of the applicant provides a basis to conclude that his answers to questions 41 – 46 of his protection application were incorrect. I do not think they were, for the following reasons.

14. It is relevant to note that the power under s.109 requires determination of facts in order to enliven the statutory power, and in doing so the onus of establishing those facts is on the Minister.[1]

    [1] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, 6 December 1994) at [14].

15. The relevant facts here are the return of the applicant to Iraq on four occasions, for periods totalling 11 months, the first of which took place shortly after he was granted protection. These facts are accepted and not disputed.

16. These facts do not, however, appear to me to establish that the applicant has given or provided incorrect answers to questions 41 – 46 of his protection visa application. As above, the applicant referred in his answers to these questions to his accompanying statutory declaration, and said that he was seeking protection so he did not have to go back to Iraq, that he feared harm from [Ms A]’s family and tribe. Whatever one thinks of the plausibility and strength of these claims, they were accepted as facts in the original decision making process that led to the grant of the protection visa.

17. The situation therefore is that the applicant’s claims have been accepted. The fact that he returned to Iraq, on several occasions, does not displace these findings. The evidence of his return is simply not sufficient, in my mind, to raise more than a concern that he may not have the claimed fear of harm on return. The return travel, logically, would tend to suggest he does not hold the fears he claims to for the reasons he does, but it is not proof to establish the facts that he relied on for the grant of protection are not true. Nothing in his return travel suggests that his claims about the relationship, or what he claims happened to him in Iraq because of that relationship are untrue. At their highest, his return trips are suggestive, perhaps even strongly suggestive, that he does not hold the fear of returning to Iraq that he claimed to. The delegate appears to acknowledge that the information of his return trips is only suggestive, as excerpted above. But even this is subject to doubt – he claims to have travelled to Erbil on the first trip, and on subsequent trips to have hid and been discreet in his travel. If true (and there is no evidence to disprove these claims) then his travel may not be inconsistent with his claimed fear of returning to Iraq. This is not a case where the applicant claimed to fear harm from the authorities or state actors in Iraq. Indeed, I am not convinced by the delegate’s view that the applicant’s claims were ‘at the extreme end of the spectrum of claims one could make’.

18. On considering the questions in detail, in light of the above, I am not persuaded that the evidence before me establishes that the applicant has provided or given incorrect information. Question 41 states that the applicant was seeking protection at the time he lodged his application so he did not have to go back to Iraq. As above, his return travel is suggestive, even strongly suggestive, but not determinative, that this answer is incorrect. I find for these reasons that it is not established that he has provided incorrect information in this question. Question 42 ask why he left that country. As above, his return travel does not establish that his claims of a relationship and mistreatment by non-state actors as a result are false or incorrect, and I find the information before me has not established that he provided incorrect information to this question. Question 43 asks what he fears may happen if he returns. Again, his return travel is suggestive, but not determinative that he has given incorrect information to this question – and I note that a person may hold fears, even very strong and legitimate fears, which do not eventuate. I find the information before me has not established that he provided incorrect information to this question. Question 44 asks who he thought may harm/mistreat him if he went back. Again, the return travel does not establish that his answer to this question is incorrect. I find the information before me has not established that he provided incorrect information to this question. Question 45 asks why he thinks this will happen to him if he goes back. As above, is return travel is suggestive, but not determinative that his answer to this question is incorrect. I find the information before me has not established that he provided incorrect information to this question. Question 46 asks whether he thinks the authorities of that country can and will protect him if he goes back. Again, the information before me is suggestive only that this is incorrect and I find the information before me has not established that he provided incorrect information to this question.

19. I find for these reasons that the applicant has not provided incorrect information to questions 41 through 46 as described in the s.107 notice.

    Conclusion on non-compliance

20. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

21. The above are the reasons for my decision in this case.

22. I do want to make some points about the information before me which would have gone to questions of discretion. The applicant has lived in Australia for nine years, during which he has worked consistently and owned his own business. His wife and [child 1] have lived in Australia for five years and his [child 1] is at school. There is a claim, which I have been unable to verify, that their [child 2] is an Australian citizen by birth, [her/his] parents being permanent residents at the time of [her/his] birth. I do not have evidence of conferral of Australian citizenship before me, so I cannot make a firm finding on this. The applicant’s wife has worked and studied prior to her current pregnancy.

23. The family it appears to me have integrated into the community and contributed to the community. The [child 1] has had [her/his] schooling in Australia, and the [child 2] has been raised here.

24. The delegate referred to the convention on the rights of the child and the principle of family unity. This is an important aspect of the Convention, but there are other aspects of the convention which Australia seeks to uphold, including the rights to education, safety and health of children who are part of our community. It is not clear to me that sending young children to live in Iraq would uphold these aspects. If the second child is indeed an Australian citizen, it is not clear to me that we would not be failing our responsibilities to an Australian citizen child to have her return and live in Iraq at least until [her/his] majority. I note that the cancellation of the applicant’s visa led to the consequential cancellation of his wife and [child 1]. I note that the family, including the applicant’s heavily pregnant wife, would suffer significant hardship to travel to and establish themselves in Iraq. I note that there are ongoing and serious security concerns in Iraq. Given my findings above, I have not found it necessary to weigh these factors against those in favour of cancellation.

    Conclusions

25. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

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

    Sean Baker
    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.