1802585 (Refugee)

[2018] AATA 5075

1802585 (Refugee) [2018] AATA 5075 (5 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802585

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Meena Sripathy

DATE:5 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 December 2018 at 3:39pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iraq – incorrect answers in visa application – returned to Iraq on three occasions – shortcomings in notice of non-compliance – compassionate family reasons – precautions taken to minimise risk – avoidance of location related to persecution claims – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 108, 109

Migration Regulations 1994 (Cth), r 2.43

CASES

McDonald v D-G of Social Security (1984) 1 FCR 354

MIAC v Brar (2012) 201 FCR 240

Mian v MILGEA (1992) 28 ALD 165

MIEA v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Citizenship v Brar [2012] FCAFA 30

Nagalingam v MILGEA (1992) 38 FCR 191

Saleem v MRT [2004] FCA 234

Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994)

Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555

Sun v Minister for Immigration and Border Protection [2016] FCAFC 52

Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291

SZEEM v Minister for Immigration [2005] FMCA 27

Zhao v MIMA [2000] FCA 1235

Zhong v MIAC (2008) 171 FCR 444

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 did not comply with s101 of the Act and determined, having considered the prescribed circumstances under r.2.43, that the visa be cancelled.

3. 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 28 November 2018 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. A notice of intention to consider cancel (NOICC) was sent to the applicant on 5 August 2016, particularising the possible non compliance in the following manner: the applicant made claims in his protection visa application that if he were to return to Iraq, he would be killed because of his role as an [Occupation 1]; that he cannot live in another part of Iraq and that his national ID card would be checked and he would be killed. However, since the grant of the protection visa, he has returned to Iraq voluntarily three times and stayed for a total of 7 and a half months and his contact with Iraqi border authorities has not prevented him from entering or leaving Iraq each time. This indicates the applicant did not face any real risks or detrimental consequences that he claimed to fear upon return to Iraq and therefore he did not hold the profile of risk and fear for the reasons claimed and the answers he gave to questions 42 to 48 of Part C of Form 866 were incorrect and he has not complied with s 101(b) of the Act.

8. The applicant, through his representative, provided a response to the NOICC on 26 August 2018.  It was submitted that the applicant travelled to Iraq due to compelling and compassionate reasons of his mother’s deteriorating health.  His parents are living alone.  The applicant’s only sibling lives in Australia, and in 2013 his mother’s health deteriorated and they needed him to care for her and she needed to see her children to alleviate her depression.  For these reasons the applicant decided to take the risky trip back to Iraq to visit his mother. His father rented a house in [Town 1] because it was a place he would not be detected and his family was able to join them there from the place they have been living since he left Iraq (Abu Alkhaseeb). The applicant was in hiding throughout this period and was fearful for his life. The second trip back in 2014 was also because of his mother’s critical medical condition and his brother was busy with his own family life.  He again stayed in the same area, [Town 1], and again he was in hiding throughout this time and only stayed for 6 weeks. The same applies for the third visit back in 2015. The applicant maintains that all the information provided in his protection visa application was true and correct; he provided genuine documents and has no other instances of non compliance in his immigration history. With the submissions, the applicant submitted two translations of medical letters relating to his mother and a bundle of photographs (unannotated).

   Other information - ITOA Assessment

9. The Department commenced an International Treaties Obligations Assessment (ITOA) in 2016 and sent the applicant a procedural fairness letter putting certain country information and credibility issues to him.  A copy of the completed ITOA is included in the Department file ([number]) which indicates that no response to this was received.  The Tribunal has not seen a copy of the procedural fairness letter that was purportedly sent as it was not included in Department’s cancellation file [number].  The ITOA assessment states that it considered the applicant’s response to the NOICC and concluded, in the absence of credible evidence to the contrary, that it was more likely than not that he returned to his family’s habitual residence when he returned to Iraq in 2013, 2014, and 2015 and that, given his voluntary returns there and period of stays, his circumstances were not as be claimed in his Statutory Declaration made in the context of his Protection visa application and he had no subjective fear of harm from members of armed groups/militia such as Al Qaida because he was an [Occupation 1] in the past. The delegate went on to consider Australia’s non refoulement obligations under CAT and ICCPR and concluded that there were no substantial grounds for believing that there is a real risk he would suffer significant harm upon return to Iraq on the basis of country information that indicates the southern governorates are relatively safe and peaceful, and taking into account the applicant’s circumstances as a Shia Muslim and the amount of time he has spent there. While acknowledging that there are security problems and acts of terror committed, the delegate found these affect the citizens generally.

   Evidence before the Tribunal

10. On 22 November 2018, the Tribunal received a submission from the applicant’s representative.  The submission makes the following points (in summary)

    ·The NOICC issued to the applicant on 5 August 2016 was not sufficiently particularised according to s107 of the Migration Act, to the extent that it states the applicant’s non compliance arises only because of his three trips back to Iraq and provides no other reasons. It is submitted that the delegate’s statement that the applicant’s contact with Iraq border authorities has not prevented him entering or leaving Iraq was inaccurate and reflects a total misunderstanding of the applicant’s claims for protection. The NOICC failed to particularise or explain the link between the passage through an Iraq airport and the assumption that the applicant did not have the profile he claimed to have in the country. It is clear from the applicant’s claims that the agent of persecution in his case was Al Qaeda and not the government of Iraq. The failure to provide adequate particulars meant the applicant did not understand the reasons why he is alleged to have provided incorrect information in his application and he has not been provided sufficient information of the case he is required to meet.

    ·Regarding whether there was non compliance as described in the s107 notice, the submission referred to the explanation provided by the applicant in his response to the s107 notice on 26 August 2016, that he returned to Iraq for the very compelling reason of his mother’s unique illness, in respect of which he provided a doctor’s report, and stayed in a remote area where he remained in hiding at all times. The applicant travelled on his Australian travel document and therefore did not avail himself of the protection of the Iraqi authorities during these visits. He never claimed to fear harm from the Iraqi authorities so dealing with the Iraqi authorities when he entered or exited Iraq is not adverse to his claim. It is submitted that the applicant’s claims for protection (regarding his [association] with coalition forces and [militia members]) are not disproved by any information provided by the delegate in the notice. His return to Iraq does not prove the events he described in Iraq are untrue or that he did not have a subjective fear when he applied for refugee status. That the applicant was not harmed when he returned to Iraq does not prove that the events he described in Iraq are not true. The applicant took steps to minimise the chance of harm in Iraq by staying away from his home area and being careful about where he identified himself.

    ·The representative makes submissions regarding the ITOA assessment including taking issue with the delegate’s conclusion that the applicant did not have the profile he claimed on the basis solely of his return to Iraq; lack of evidence to reject the applicant’s evidence (including photos) that during these visits he and his family lived at [Town 1]; and reliance on country information [about] the fight against ISIL in 2017.

    ·The submission goes on to respond specifically to the delegate’s decision to cancel the visa and reasoning provided; in essence arguing that the delegate’s reliance on the fact of the applicant’s return to Iraq on three occasions does not establish that he provided incorrect information in his protection visa application.  

    Tribunal hearing

11. At the hearing the Tribunal took oral evidence from the applicant. He lives in [location] in share accommodation.  He currently works full time (casual) as a [Occupation 2], having worked previously in [specified industry]. He is married.  His wife and [number] children live in Iraq, with his parents.  His third [child] was born [after] he arrived in Australia.  The applicant has one [brother] who lives in Australia.  He arrived before the applicant, also by boat.  The applicant told the Tribunal his brother left Iraq many years [ago] to work, and the family did not have any contact until after he came to Australia. His brother’s family is here now with him and they all live in [a certain city].

12. The applicant’s wife and children live with his parents now.  When the applicant left Iraq he moved his wife and [children] to [Al Basra] because of the dangers he experienced in his home town of [City 1].  Prior to this his family lived with his parents in [City 1]. This is about [distance] from Basra.  After the applicant returned to Iraq to visit his family in 2013, his father rented a farm house in an area called [Town 1] and the wife and children moved here to live with his parents again.  The applicant states that they all remain living together to this date in [Town 1].  The applicant has applied for his wife and children to join him in Australia but he has been informed that their applications will not progress until he becomes a citizen. Apart from these relatives, the applicant has one living [relative] who lives in [City 1] with his family.

13. The applicant gave evidence about the circumstances leading to his arrival in Australia and claims for protection.  He stated that he was threatened there and an assassination attempt was made on his life which led him to flee the country.  He was a [Occupation 1] since 2007.  He worked in Baghdad, but [when] he had [leave he] returned to his home village in [City 1]. One day when he was at home on leave he found a threat letter directed at him. The next day when he was leaving home he saw a car with tinted windows which turned around. He returned inside and when he came back out the care came back and he saw a hand extend from the car holding a gun and which shot at him.  After this incident he took his wife and children and fled to Basra.  The Tribunal asked the applicant if he had experienced any other threats or incidents.  He said he had in Baghdad, in the course of his work. He worked [as an Occupation 1] and he had faced threats in that context.  But this was the first time it happened to him in his home village.  He does not know who the attackers were personally but believes they were associated with [Al Qaeda].  He had heard of others who were targeted and killed by Al Qaeda.

14. The Tribunal referred to the applicant’s Statutory Declaration provided in his protection visa application and asked him if he maintained the claims made there. He demonstrated familiarity with the details contained in that declaration, repeating the claims made and confirmed that the information he provided there was true and correct. He referred to the two roles he had when he was a [Occupation 1]. He repeated his claim that he would be killed because of his role as a [Occupation 1].

15. The Tribunal asked the applicant if he knew at the time he was granted protection that he was not permitted to return to the country from which he sought protection, unless he had sought permission of the Minister, noting that he was represented at that time and would likely have been advised this by his representative.  The applicant stated that he did not know this.  He knows that it was dangerous for him to return but he only did so because of the circumstances of his mother.  He said he went to the Department to apply for a travel document and at that time he advised that he needed to return to Iraq to see his mother.  He maintains that he told the Department that he intended to return to Basra and no one said anything to him about not being permitted to do so.  It was only on the third visit back, he was questioned at the airport about returning to Iraq.

16. The Tribunal asked the applicant about his trip back to Iraq in 2013.  He said he returned for the sake of his mother.  His father told him she was really emotionally unwell and asking to see her children. She suffers from a [specified] illness and it gets worse when she is emotionally stressed. His father begged him to come back for a short period to help her get better. His father said he would try and make it as safe as possible for him.  He rented a house in a remote farming area, [Town 1] about [number] kms from Al Nasiriya and his wife and children and parents all came to live here.  He said he spent the entire time at the house, and did not go to Nasiriya at all.  He only went out once to meet a man to arrange to get documents for his newborn [child], and they met in [Town 1]. He entered and departed Iraq from Basra, and went straight to [Town 1], about [distance] away. The applicant said he spent all of the time with his mother, wife and children and did not do anything else.  He did not have any problems while there because he was staying in such a remote place and staying at the house.

17. The Tribunal put to the applicant that independent information before the Tribunal indicates that there was continuing violence and attacks by Al Qaeda throughout 2013 and this may cause the Tribunal to have a concern about his decision to return there if he was at risk as claimed in his application.  In response the applicant stated he continued to be at risk but he returned only for the humanitarian reason of seeing and supporting his ill mother. 

18. The Tribunal asked the applicant about his subsequent visit in 2014.  He said he returned for the same reason, to see his mother and family.  He explained that his relationship with his mother is especially close.  He also feels very responsible for his mother’s condition, because she became ill sometime in 2009 as a result of experiencing a shock that he may have been killed.  He explained that he was working in Baghdad and they were not permitted to return home for a period of [number] days.  When he did not return for his usual family [leave] the family assumed he had been killed and his mother suffered a shock and has been ill ever since. He has felt responsible for her illness ever since then and that is why he felt he had to return to try and alleviate her emotional distress. He returned again in 2015 for the same reason.

19. The applicant told the Tribunal that despite the risk to his safety of going back to Iraq, he went back to try and help his mother get better.  His father tried to minimise the risk to him by staying in a remote place away from the place he was in danger, he did not stay for long periods, he hardly ever left the house and he also tried to modify his appearance while there.  He came and left from Basra and never went to Al Nasiriya.

20. The Tribunal discussed the issue of the notice issued under s107 with the applicant and his representative, noting the representative’s written submissions that it was invalid on the basis of being insufficiently particularised. The representative spoke to his submissions, emphasising the authorities of Zhong and SZEEM, that generic particulars are insufficient. He submitted that the notice gave no reasons other than that the applicant returned to Iraq and his contact with the authorities did not prevent him entering or leaving each time.  The representative argued that the generic particulars provided appeared to misconceive the applicant’s claims in his protection visa altogether, as he never claimed to be of adverse interest to the Iraqi authorities, and no information that Al Qaeda controlled the airport at Basra was provided.  Effectively the applicant did not know enough to meet the case against him, hence his response to the notice was so general and brief. The representative submitted that the applicant made very specific claims in his protection visa application about his role as a [Occupation 1] and why Al Qaeda had targeted him personally but the notice does not appear to reflect this. 

21. The representative also submitted, apart from the issue of the validity of the notice, that the applicant is affected by the Ministerial Direction giving IMA’s lowest priority for family reunion and so he remained separated from his wife and [children] and this is also relevant.  He also takes issue with the country information referred to in the ITOA assessment, suggesting that Al Qaeda’s actions killing 150 people in Nasiriya in 2017 was negligible and that the ITOA delegate also did not properly read the applicant’s claims in his protection visa application.  He submits the applicant was able to be safe in Iraq on his return visits only because he modified his behaviour, and was in hiding, and that he returned for compelling reasons to see his mother.

    CONSIDERATION

22. 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.

1. 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.

2. The questions for determination are therefore:

   (1)Was the delegate entitled to issue the notice under s.107, namely is the Tribunal satisfied that the delegate reached the necessary state of mind to engage s.107?

   (2)If the answer to (1) is yes, was the notice valid?

   (3)Was there non-compliance by the visa holder in the way described in the notice?

   (4)If the answer to (3) is yes, how should the discretion to cancel be exercised?

3. In the present case, the delegate issued a notice to consider cancellation (NOICC) on 5 August 2016. The applicant, through his representative, has argued that the notice issued by the Minister’s delegate failed to comply with s.107 because it provided insufficient particulars and in effect wholly misconceived the applicant’s protection claims.

4. The Tribunal has therefore considered this as a threshold issue, as a finding that the NOICC is not valid means the cancellation must be set aside on that basis alone, and it is not necessary to consider the remaining issues.

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

5. The Tribunal is satisfied, in the present case, that the precondition for issuing the notice, reaching a requisite state of mind that the visa holder has not complied with one or more of the relevant provisions, is met here.  The Tribunal accepts that the notice indicates the delegate had formed the view that there has been non-compliance and there is some basis for his findings (regardless of the strength or logic of this basis). The next question relates to the sufficiency of the notice.  Specifically, whether the notice included particulars of the possible non-compliance.

6. The NOICC referred to the applicant’s answers to questions 43-48 in his Protection visa application on 30 November 2012 and accompanying Statutory Declaration dated 22 November 2012 setting out his statement of claims. It then referred to evidence indicating the applicant travelled back to Iraq on three occasions since being granted a protection visa and that his contact with Iraq border authorities has not prevented him entering or leaving Iraq each time and that this indicates he did not face any real risks or detrimental consequences he claimed to fear and therefore he did not hold the profile of risk and fear of returning for the reasons claimed in his protection visa application and on this basis he provided incorrect answers to questions 42-48 of Part c in relation to his claimed profile of risk and fear for his safety.

7. The applicant’s representative has argued that the delegate appears to have totally misconceived the applicant’s claims for protection given that the only particular that appears to have been provided in the NOICC is that his contact with Iraq border authorities has not prevented him from entering or leaving Iraq each time, when in fact it is clear from the applicant’s claims that the agents of persecution in his case was mainly Al Qaeda and militia groups [in Iraq] and was never the Iraqi government. It is argued that the NOICC is invalid for failing to properly or sufficiently particularise the possible non-compliance alleged.

8. The Tribunal has considered the representative’s arguments and submissions and relevant case law authorities. In the Tribunal’s view the authorities establish the following:  The sufficiency of notification is to be tested by reference to the statutory purpose. That is, it must be sufficient to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open.[1] It would not be enough to generically claim that the visa holder has breached a section of the Act without giving particulars of the facts and circumstances which are said to give rise to the possible breach of the particular provision.[2] Simply identifying the statutory provision not complied with would not be an adequate provision of particulars for s.107(1)(a).[3]

   [1] Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25]. In that case the Court was considering the requirements of s.119 notifications for the purposes of Subdivision D cancellation but the principle would be equally applicable to s.107 notifications. The decision was cited with approval by the Federal Court in MIAC v Brar (2012) 201 FCR 240: see [57]-[58], a decision that was concerned with a s.107 notification.

   [2] Zhong v MIAC (2008) 171 FCR 444 at [80].

   [3] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004) at [43]-[44].

9. The consideration of whether particulars provided in a notice under s.107 are adequate to satisfy paragraph (1)(a) cannot be separated from the task of the decision-maker under s.108(b) to decide whether there was ‘non-compliance in the way described in the notice’: SZEEM v Minister for Immigration.[4] In particular, Smith FM (as he was then) observed at [37] as follows:

   The scheme of decision making is that the decision-maker must address only the particulars of non-compliance which were formally notified to the applicant in the notice which initiated the cancellation action. The statutory context, in which the person may be deprived of permanent rights of residence and citizenship, explains the legislature’s concerns: (i) that proper notice must be given; (ii) that the notice must contain “particulars”; and (iii) that the power of decision should be defined by reference to a finding based on those particulars and no others.

   His Honour further opined at [38]:

   In relation to an allegation that a general statement was made falsely, the requirement of particulars must, in my opinion, also encompass particulars of the basis on which the falsity is alleged, these must be given with enough detail to allow this recipient a real opportunity to understand and attempt to answer the non-compliance allegation.

   And at [43]:

   I therefore consider the Tribunal would fail to exercise its jurisdiction if it decided that there was “non-compliance by the visa holder” by reason of the falsity of statements identified in the s 107 notice, where its conclusions as to falsity relied wholly or in part upon adverse findings concerning matters which had not been squarely raised by particulars provided in the notice. I consider in the present case that s 108(b) required the Tribunal, when deciding whether the applicant’s statements falsely claimed a fear of persecution if returned to Jordan, to confine the basis of its decision to the particular allegations which were raised in the s 107 notice as discussed above.

   [4] SZEEM v Minister for Immigration [2005] FMCA 27, relying on Allsop J in Saleem v Migration Review Tribunal [2004] FCA 234

10. In Saleem, Allsop J found that the Tribunal had purported to exercise a power which was not authorised under s.109 by asking itself the wrong questions under s.108(b). Asking whether the applicant had in fact breached s.101 was in error.[5]

    [5] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004) at [61]

11. The Full Court of the Federal Court in Minister for Immigration and Citizenship v Brar [2012] FCAFA 30, observed at [56]:

    A notice under section 107 of the Act is not a criminal charge or a pleading in a civil action. The notice must contain, among other things, particulars of possible non-compliance then the decision-maker under s 108 must decide whether there has been non-compliance in the way described in the notice.

12. Taking the above mentioned authorities and principles into consideration, in the present case, the Tribunal tends to agree with the applicant’s representative that there are significant shortcomings in the particulars notified to the applicant on which the alleged non compliance is based. The Tribunal agrees that the notice is not especially clear about which specific parts of the information in the application for protection are incorrect or why they are incorrect, other than for the reason of the applicant’s three return trips and not being prevented from leaving or entering the country by border authorities. No other particulars or basis for this conclusion is provided.  The Tribunal is also inclined to agree with the representative that, given that the applicant never claimed to fear harm from the government of Iraq or its authorities but rather Al Qaeda or militias [in Iraq], to the extent that he is relying on the fact that the applicant was able to pass through Iraq border authorities without incident, to allege the non compliance, the delegate appears to have misconceived or misunderstood his claims. 

13. However, a notice based on flawed or poor reasoning is not of itself invalid.  It simply limits the scope of the decision maker’s (which is the Tribunal on review) enquiry as to whether there has been non compliance ‘in the way described in the notice’. As long as the notice refers to information that is alleged to be incorrect and a basis for why the information is incorrect, these are the particulars against which the Tribunal must assess s108(b).

14. The Tribunal finds the notice is valid on the basis that it refers to particulars of the applicant’s claims made in his protection visa application (that if he returns to Iraq he will be killed because of his role as an [Occupation 1]; that he cannot live in another part of Iraq; and that his national ID card would be checked and he would be killed) and alleges these statements are incorrect because he returned to Iraq on three occasions, stayed for a period of 7.5 months and was not prevented from entering or leaving by Iraqi authorities.  Accordingly, the Tribunal has considered whether there is non compliance in the way described in this notice.   

15. With regard to the onus of establishing non-compliance, it is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[6] However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal).[7]  In a case such as the present, in deciding whether the ground for cancellation is made out the Tribunal also considers it is appropriate to bear in mind the nature of the allegations and the gravity of the consequences[8].  In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his protection visa application are serious.

    [6] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.

    [7] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].

    [8] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 and Sun v Minister for Immigration and Border Protection [2016] FCAFC 52. Eg. The Court in Sullivan observed at [120] ‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’

16. Having considered the NOICC and the applicant’s response, and evidence given to the Tribunal in submissions and at hearing, the Tribunal makes the following findings. 

17. The Tribunal accepts that the applicant returned to Iraq on three occasions, on the dates and for the periods referred to in the notice, and that he entered and exited the country from Basra Airport.  The applicant has acknowledged this in his written and oral evidence to the Tribunal and the movement records and entry and exist stamps in his travel document are consistent and confirm these findings.  The Tribunal accepts the applicant returned to Iraq on each of these occasions for compassionate family reasons, to see his elderly and ill mother, as well as his wife and [number] children, including a [child] born after he departed Iraq in 2012 whom he had not previously met.  His evidence about these matters and the letter from his mother’s doctor support these claims.  The applicant has claimed that his father rented a house in a small, remote and rural [area], [Town 1], for the family so that the applicant could visit them discreetly and minimise the risk to him during his visits. He provided photos of the family in a rural place in support of this claim. On the material before the Tribunal, including the information provided in the notice, there is no basis for the Tribunal to reject or disbelieve the applicant’s claims regarding the location of his stay in [Town 1]. The Tribunal also observes that the applicant’s evidence to the Tribunal about his family’s movements and addresses are consistent with details provided in his protection visa application. He indicated in response to Question 35 &36 of Form 866D that he lived in [City 1] until April 2012 and from April to May 2012 in Abu el Khassib, El Basra.[9] He told the Tribunal the incidents he referred to in his claims occurred in [City 1] and he never returned to [City 1] during any of these visits because of the risk he faced there.  On the available evidence, including matters referred to in the notice, the Tribunal is not satisfied there is any basis to conclude otherwise. Therefore, the Tribunal accepts that the applicant visited Iraq on three occasions in 2013, 2014, 2015, for compassionate family reasons, and stayed in a [village] and it accepts that he did not return to his home area of [City 1].

    [9] [File number], folio73

18. The Tribunal has also considered the applicant’s evidence regarding his protection visa claims. He maintains that the claims made in his application are truthful and correct.  At the hearing, he was able to give the Tribunal a substantially consistent account of the reasons he left Iraq and the incidents that occurred at that time. The applicant’s representative extracted a part of the original delegate’s assessment in his submissions to the Tribunal, which set out the delegate’s favourable assessment of the applicant’s credibility and understanding of his claims being that the agent of persecution he feared was Al Qaeda who were targeting the [applicant].  The Tribunal notes the delegate’s Protection visa decision record was not included in the Department file provided to the Tribunal ([file number]) nor did it forward to the Tribunal the Protection visa file.  This lends some weight to the representative’s argument that the NOICC as drafted suggests the delegate fundamentally misconceived and /or misunderstood the applicant’s protection claims, in that he has never claimed to fear the Iraqi authorities, but rather Al Qaeda and/or militias.  The Tribunal agrees with the representative’s argument that the NOICC fails to explain how the applicant’s contact with border authorities indicate his claims were incorrect or that he did not face any real risks or detrimental consequences that he claimed to fear and did not hold the profile of risk and fear for the reasons claimed. Given the applicant’s actual claims, the Tribunal does not agree with the delegate’s conclusions.

19. The Tribunal is satisfied that the applicant claimed to fear Al Qaeda and militia groups [in Iraq], on the basis of his role working [as an Occupation 1] and that he experienced a targeted threat and attempt on his life in front of his house which led him to flee from Iraq in 2012.  It accepts on his evidence that these incidents occurred in his home area [City 1] and that he avoided this region in his return visits in 2013, 2014 and 2015.  As referred to above, the Tribunal accepts the applicant returned to Iraq on these occasions for compelling family reasons, entered and stayed only in the Basra area and lived discreetly to avoid detection. 

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.

    DECISION

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

    Meena Sripathy
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)      visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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