1808852 (Refugee)

[2020] AATA 298

1808852 (Refugee) [2020] AATA 298 (12 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1808852

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Ms Christine Long

DATE:12 February 2020

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 12 February 2020 at 2:37pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – ground for cancellation – incorrect information in visa application – claimed adverse profile and fear of harm – voluntary return to Iraq on one occasion for 88 days – mother’s deteriorating health – kept a low profile – positive satisfaction not reached – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 36, 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
Zhao v MIMA [2000] FCA 1235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on 28 March 2018 on the basis that the applicant provided incorrect answers in his protection visa application form contrary to s.101(b) of the Act. 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 21 March 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.

   RELEVANT LEGISLATION

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. Relevantly to this application s.101(b) provides that, “ A non-citizen must fill in or complete his or her application in such a way that … no incorrect answers are given or provided.”

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.  Section 107 is only engaged if the Minister, or delegate, considers that the holder of a visa who has been immigration cleared did not comply with sections 101,102,103,104,105 or subsection 107(2) of the Act. These sections essentially require a non citizen  to provide correct information in visa applications and passenger cards, not to provide bogus documents, to notify changes in circumstances and to notify about any incorrect answers previously given or provided and to provide the correct answer/s. A notice given under s. 107 of the Act must provide particulars of the possible non-compliance: s107(1)(a).

7. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

8. Extracts of the Act relevant to this case are attached to this decision.

9. The procedure for cancellation under s.109 requires that the visa holder be given an opportunity to respond to a notice issued under s.107 and the decision maker must have regard to that response in deciding whether there has been non-compliance and whether to cancel the visa. The obligation is on the decision maker to be positively satisfied there has been non-compliance:  see the comments in Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000 which dealt with a cancellation under s.119.

   EVIDENCE BEFORE THE TRIBUNAL

10. The Tribunal has before it the applicant’s Departmental file in relation to the applicant’s arrival in Australia as an irregular maritime arrival in April 2012; his claims to be a refugee which were essentially that he was a Sunni Muslim living in a Shia Muslim area and was targeted for harm and oppressed because of his religion; and the refusal by a Departmental delegate of his application for a protection visa ([Department file number]). The Tribunal also has the applicant’s Departmental file in relation to the cancellation of his protection visa ([Department file number]). The Tribunal also has before it Refugee Review Tribunal (RRT) file, file number 1219744, in relation to the applicant’s successful application for review to the RRT of the refusal of his application for protection visa by the Departmental delegate.

11. The applicant’s Departmental protection visa file includes the following- documents of the Department assessing the applicant’s age as over 18 years of age, born [Date 1] [Year 1] rather than born in [Year 2] as the applicant claimed in his application for protection; notes of his entry interview, held on 10 May 2012 with a Departmental officer, as an irregular maritime arrival; copies of documents of identity from Iraq being a national ID card and a document described as a citizenship (nationality) certificate; his subsequent protection visa application made 22 July 2012 plus statement in support of that application dated 22 July 2012 in which he claims to fear harm in his country, including from Shia militias and an individual Shia person who threatened him after the applicant asked him to turn down the volume of a loudspeaker at a parade; notes of the applicant’s on shore protection interview held 25 July 2012 at [a] Detention Centre; a copy of a submission dated 11 August 2012 in support of the applicant’s protection visa application; a copy of the delegate’s decision record dated 7 December 2012 refusing the applicant’s application for a protection visa.

12. The applicant’s RRT file includes a copy of the decision of the RTT dated 1 March 2013 which concluded that the RRT member was satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention; the RRT remitted the matter for reconsideration with the direction that the applicant satisfied s. 36(2)(a) of the Act. The applicant was notified of that decision on 4 March 2013.

13. The applicant’s cancellation file includes an assessment of the identity documents in relation to the applicant; a copy of the Notice of Intention to Consider Cancellation of the applicant’s protection visa under s.107 of the Act dated 16 May 2017 (NOICC). The applicant responded to the notice on 9 June 2017 and a copy of that response, a statutory declaration declared 9 June 2017, is on the cancellation file along with two documents from Iraq in support of the response described as a medical report for his mother and a death certificate for his father. Also contained on the cancellation file is a copy of an International Treaties Obligations Clearance letter dated 3 August 2017 and a copy of the decision record dated 28 March 2018 cancelling the applicant’s protection visa, which was granted on 14 August 2013, under s.109 of the Act.

14. The applicant’s cancellation file also includes a non disclosure certificate given under s.438 of the Act.

15. The Tribunal also has before it the applicant’s application to the Tribunal for review of the cancellation decision, a further copy of the Notification of Cancellation dated 28 March 2018 and the record of decision about the cancellation dated 28 March 2018.

16. On 17 March 2019 the applicant’s advisor sent the Tribunal a submission and copies of three documents described as from the Republic of Iraq, Ministry of Migration and Displaced, [a] Refugee Camp in [City 1], and from the Office of the president of Sunni Endowment dated, variously, [February] 2017, [March] 2017 and [June] 2018; the latter documents describe the displacement of a named person whom the applicant claims is his brother, from Dhi Qar Province into a [refugee camp] for displaced persons, because of sectarian harassment, including harassment by Shiite armed militias and unknown gunmen, because he is Sunni.

17. The applicant’s advisor’s submission addresses the following- that the only reason the applicant’s visa was cancelled is that he travelled to Iraq one time only for 88 days; that the delegate’s suggestion that the applicant provided incorrect information on his protection visa form in July 2012 because he travelled back to Iraq [in] January 2015 is unreasonable; that the applicant’s return to Iraq does not prove that the events he described in Iraq are untrue or that he did not have a subjective fear of harm when he applied for refugee status or that his fear was not well founded; that the delegate overlooked the applicant’s response to the NOICC where the applicant stated that there were compelling reasons for his return to Iraq and it was risky for him to return; that he feared for his life while he was there in Iraq, he lived in hiding there and after he returned from Iraq to Australia his brother [Mr A] fled to [Country 1] because he was fearful for his life and his other brother [Mr B] was forcibly evicted from his house; that the NOICC should not have been issued because the available evidence does not substantiate the ground for cancellation. The submission also addresses the matters in r. 2.41 of the Migration Regulations,1994 relevant to whether the applicant’s visa should be cancelled, including references to country information.

18. The applicant appeared before the Tribunal at a hearing on 21 March 2019 with his advisor. The hearing was conducted with the assistance of an interpreter in the Arabic language. At the Tribunal hearing the applicant produced his Titre de Voyage issued in Australia [in] 2014 expiring [in] 2016, document [number]. The document indicates that the holder of the passport travelled to Iraq in 2015, arriving in Iraq [in] January 2015, departing Iraq [in] April 2015 and arriving back in Australia [in] April 2015. The applicant also produced to the Tribunal medical records for himself in relation to a bone scan ([in] October 2018) and an MRI ([in] January 2019).

19. As a preliminary matter the Tribunal spoke generally with the applicant about the non disclosure certificate given under s. 438 of the Act on the departmental file relating to the cancellation of his visa, inviting the applicant’s comments.  The applicant/applicant’s advisor did not wish to comment on that certificate or the non disclosure of documents but responded that the concern was rather about the decision under s.108.

20. At the hearing the Tribunal spoke with the applicant about the following - when and why he decided to return to Iraq from Australia for three months between January and April 2015; his concern about his mother’s health; where he lived in Iraq prior to travelling to Australia in 2012; his employment in Iraq in a [business] up until about two months before he left Iraq to come to Australia; that his problem in Iraq was with the Shia militias rather than the government so that he did not have difficulties entering and exiting his country or getting a passport; his family members in Iraq including his two married sisters who live in another province, his brother who went to [Country 1] illegally in August 2015 because he had trouble from Shia militias and his other brother who is married with [number of] children, who is in a refugee camp in [City 1] but is trying to leave Iraq; how his mother who now lives alone in Iraq is supported financially in Iraq;  that he has no family members in Australia and no family members who have come to Australia as refugees by boat; where he has been living in Australia and with whom he has been living in Australia; that he returned to Iraq in 2015 and stayed there for three months because of his mother’s health although he thought he would be harmed there; that his mother was operated on [in] December 2014 for [medical condition]; that she was living in the family home again with his two brothers when he arrived back in Iraq in 2015 and that he stayed with the family there at the family home but was essentially in hiding the whole time; that his brothers who are older than he is looked after his mother when she was discharged from hospital and that he did not take her to the hospital for treatment as he could not leave the house; that his brothers were able to stay there after he left Iraq to come to Australia in 2012 as he himself had a personal problem which affected him; that he managed to travel back and forth to the airport in 2015 as his father met him and took him a sideway to avoid checkpoints and he wore a scarf and sunglasses; that it was his mother’s wish to see him and although 88 days is a long time to stay it was his mother’s wish and she was in a critical situation; that his brothers and his father could not look after his mother at that time as his father was elderly and sick too; one of his brothers had to look after his own family and the other brother could not always take his mother to the hospital; that his father passed away [Date 2] 2016 and that the reference in the death certificate to his father dying on [Date 3] 2016 is a translation error (which was confirmed by the interpreter at the hearing); that when he returned to Iraq he knew the security situation in the south had worsened and that is why he did not leave the house when he went back; the security in the area was worse than it had been when he first left Iraq and he knew that when he returned to Iraq as it was “all over the news”; the medical certificate for his mother and the death certificate for his father produced by him as part of the response to the NOICC;  the three documents relating to the displacement/forced evacuation of his brother from his mother’s house in Dhi Qar province, in 2017, because of Shia militia control of the southern areas and conflict; what he has been doing in Australia since his arrival in 2012 and the medical records given by him to the Tribunal; that he is not studying or working at the present time but he is caring for a friend and is receiving a carer pension from Centrelink.

21. The Tribunal also spoke generally to the applicant about the documents he produced in support of his application noting that it had to decide whether the documents from Iraq that he produced were reliable evidence of the facts in them.

    CONSIDERATION

22. The issue before the Tribunal is whether the NOICC given to the applicant was validly issued, and if so whether there was non compliance in the manner described in the notice,  and if so whether the visa should be cancelled.

    Validity of the Notice

23. The Tribunal considered whether the NOICC complied with the requirements in s.107 of the Act.

24. The Tribunal is satisfied that the delegate reached the required state of mind to give the applicant a notice under s.107. In the notice the delegate states that she considered that the applicant provided incorrect information in his application for protection visa form in breach of s.101. This was based on the information before the delegate of the applicant’s return to Iraq on one occasion, [between] January 2015 [and] April 2015, during which time he stayed with his family members in the family home in Nasiriyah. In the Tribunal’s view, given that the applicant claimed protection in Australia on the basis that he was threatened with harm, and feared he would be harmed and threatened again, on return to his country, his return to Iraq and the length of his stay there, reasonably raised the question of whether he provided correct answers in his protection visa application form as he was required to do under section 101 of the Act.

25. The NOICC outlines the background of the applicant’s grant of his protection visa noting that his application for protection visa was refused by a departmental delegate on 7 December 2012 as the delegate was not satisfied that the applicant was a person to whom Australia had protection obligations but the RRT set aside the delegate’s decision and remitted the matter for reconsideration on 4 March 2013. (The Tribunal notes that the RRT in fact made its decision on 1 March 2013 although the applicant was notified of that decision on 4 March 2013). The cancellation delegate sets out the relevant evidence in the applicant’s protection visa application, which essentially incorporated answers contained in his statement made 22 July 2012 in support of his application for the visa (referred to by the applicant as a statutory declaration in the protection visa application forms), about why he left his country, what he feared may happen to him on return to his country and why he thought the authorities of his country could not, or would not, protect him from the harm he fears/feared. Essentially the applicant claimed in his application for protection visa forms and statement in support that he feared/fears harm in his country because he is Sunni, including from Shia militias who are supported by the Iraqi government, and who had harassed and threatened him in the past, and would do so in the future if he returned to Iraq. The cancellation delegate states in the NOICC that based on the answers the applicant provided in his application forms/his statement his claims were accepted and his protection visa was granted on 14 August 2013.

26. The NOICC then sets out the details of “Subsequent information received by the Department indicating the answers you provided on your PV application were incorrect”.  The information described is the applicant’s outgoing and incoming passenger cards in which he indicated that he spent most of his time in Iraq when he travelled there in 2015, that in an interview at Sydney airport [in] April 2015 he said that he had stayed in the family home in Nasiriyah with his parents in Iraq for 88 days in 2015 because his mother was very ill and he wanted to spend time with her and that he was in possession of his [travel document] which showed stamps indicating that he entered Iraq through [an] airport [in] January 2015 and departed Iraq through that airport [in] April 2015 and was also in possession of an Iraqi travel document with a photo of him in that document.

27. The NOICC provides details of the answers given in the applicant’s protection visa application form which the delegate considered were “incorrect”.  The details given in the NOICC include the following-

    ·     In relation to question 42 in Part C asking “I am seeking protection in Australia so that I do not have to go back to…?”  the applicant answered “Iraq”. Referring to the details in the applicant’s ingoing and outgoing passenger cards completed in 2015, the details in his [travel document] and answers in his Sydney airport interview [in] April 2015 the delegate concluded, “The above information and evidence indicates you have subsequently voluntarily returned to Iraq for a considerable period of time without any indication of experiencing any issue that you claimed in your protection visa application. The evidence suggests that you returned to the area where you claimed you would face serious harm and/or death. Given your voluntary return to Iraq without any apparent issue, I consider you did not hold the claimed adverse profile at the time of your protection visa application. I therefore consider you have provided an incorrect answer to Question 42.”

    ·     In relation to question 43 which asks “Why did you leave that country?” the applicant answered, referring to his statement made 22 July 2012, that he did not “want to be subject to being harassed and threatened.” Referring to the details in the applicant’s ingoing and outgoing passenger cards completed in 2015, the details in his [travel document] and answers in his Sydney airport interview [in] April 2015 the delegate concluded, “The above information and evidence indicates you have subsequently voluntarily returned to Iraq for a considerable period of time without any indication of experiencing any issue that you claimed in your protection visa application. Given your voluntary return to Iraq without any apparent issue, I consider you did not hold the claimed adverse profile at (the) time of your protection visa application. I therefore consider you have provided an incorrect answer to Question 43.”

    ·     In relation to question 45 which asks “What do you fear will happen to you if you go back to that country?” the applicant, referring to his statement made 22 July 2012, answered that he feared returning to Iraq as he did not want to be subject to being harassed and threatened, that if he returned to Iraq he would be harmed by Shia militias, that he would be harassed, threatened with assault or be killed, that Shia militias are part of the Iraqi government and would have knowledge of his movements, they would track him down and kill him. The delegate concluded again “The above information and evidence indicates you have subsequently voluntarily returned to Iraq for a considerable period of time without any indication of experiencing any issue that you claimed in your protection visa application. Given your voluntary return to Iraq without any apparent issue, I consider you did not hold the claimed adverse profile at the time of your protection visa application. I therefore consider you have provided an incorrect answer to Question 45.”

    ·     In relation to questions 46, 47 and 48 which ask, “Who do you think may/harm/mistreat you if you go back?”, “Why do you think this will happen to you if you go back”, “Do you think the authorities of that country can and will protect you if you go back? /Why not?”, the applicant, referring to his statement made 22 July 2012, repeated his claims that he feared returning to Iraq as he did not want to be subject to being harassed and threatened, that if he returned to Iraq he would be harmed by Shia militias, that he would be harassed, threatened with assault or be killed, that Shia militias are part of the Iraqi government and would have knowledge of his movements, they would track him down and kill him. The delegate concluded again in relation to the applicant’s answers to each of questions 46, 47 and 48, that his answers were incorrect, stating “The above information and evidence indicates you have subsequently voluntarily returned to Iraq for a considerable period of time without any indication of experiencing any issue that you claimed in your protection visa application. Given your voluntary return to Iraq without any apparent issue, I consider you did not hold the claimed adverse profile at the time of your protection visa application…”

1. In the NOICC the delegate concludes, “… I consider that your responses to the above questions are incorrect because you have subsequently returned to Iraq for a period of approximately three months. Based on exit and entry stamps in your travel document you arrived and departed through an official government checkpoint and were not arrested nor harmed; nor were you tracked down by the Shia militias and killed as you claimed you would be… it would appear you are able to travel to Iraq and remain there for a considerable time without incurring any harm. This suggests that you did not hold the adverse profile in Iraq which you claimed to have. Consequently I consider that you have not complied with section 101(b) of the Act as it appears that you have provided incorrect information in support of the application form…. As you have provided incorrect answers to questions 42, 43, 45, 46, 47 and 48 of your protection visa application, your visa is liable for cancellation unders.109 of the Act.”

2. In the Tribunal’s view the particulars of possible non-compliance with s.101(b) given in the NOICC are reasonably clear and sufficiently identify the information alleged to be incorrect and why it is considered incorrect.  The incorrect information essentially is the applicant’s answers as identified in his protection visa application forms in relation to his fear of being harassed, threatened, harmed or killed by Shias/Shia militias, supported by the Iraqi authorities, if he returns to Iraq, due to his Sunni religion. The delegate has essentially drawn an inference from the applicant’s conduct that his answers and other information he provided about his fear of harm on return to Iraq, is incorrect. The information which was included in his protection visa forms signed 22 July 2012 is inferred to be incorrect because between January 2015 and April 2015 the applicant returned to his country on one occasion, and resided there for about three months in the family home in Iraq where he lived prior to initially coming to Australia in 2012, without being harassed, threatened, killed or harmed as he claimed he would be.

3. The Tribunal is satisfied that, and finds that, the NOICC is a valid notice. In the Tribunal’s view it satisfies the requirements of s.107, including giving particulars of the applicant’s possible non-compliance with s.101(b).

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

   The applicant’s response to the NOICC

4. The applicant responded to the NOICC in a statutory declaration declared 9 June 2017 agreeing that he returned to his country from Australia [between] January 2015 [until] April 2015 and that for the whole period he was in Iraq in 2015 he stayed in the family home in Nasiryah, Dhi Qar Province. He essentially states that he knew it was risky for him to return there; he was afraid of harm the whole time he was there and he avoided going out because he was fearful of harm. He states that he returned to his country for compelling reasons as his mother had [surgery in] December 2014 resulting in complications and it was her wish to see him because of her deteriorating health. The applicant states that the situation for Sunnis in the South has not changed and that there is still constant persecution there against Sunnis. One of his brothers was threatened by the Shia militias in September 2015 and fled to [Country 1] and the other brother was forcibly evicted from his house. His father passed away [Date 2] 2016 and his mother now lives alone in Iraq.

   Documents

5. The applicant produced two documents from Iraq  in support of his response to the NOICC being a copy of a document described as a death certificate for the applicant’s father, dated as issued on [Date 2] 2016 with date of death recorded as [Date 3] 2016, and a document described as medical report from [Hospital 1] dated [in] December 2014 for his mother noting that a named female person was admitted to the hospital for [surgery in] December 2014 and was discharged from the hospital after surgery, [in] December 2014.

   Tribunal Hearing

6. The Tribunal spoke to the applicant about his return trip to Iraq. The applicant told the Tribunal at the hearing that he was granted the protection visa in 2013 and did not consider going back to Iraq except for this one time in 2015; he did not think of returning to Iraq before that time or after that time.  He said that in 2015 he was forced to return to Iraq because it was his mother’s wish to see him when her health was deteriorating. He knew the security situation was very bad in his area when he returned home; he did not want to return there and knew the risks he was taking. He said that his brother was later displaced from the area into a refugee camp because of the security situation as referred to in the documents he produced to the Tribunal and his other brother went to [Country 1] to escape the Shia militias. His mother’s health and her wish to see him forced him to take the risk to return on that one occasion in 2015. When the Tribunal asked the applicant why he then stayed in Iraq in his area for nearly three months given his claims about what would happen to him if he returned to Iraq he said that his mother’s health was very bad and he stayed until she was getting better. He said that she had an operation [in] December 2014 but then her health deteriorated. He said that she was living at the family home in Nasiryah, Dhi Qar Province when he returned to Iraq in January 2015 and he was essentially in hiding at the family home when he was there; he stayed at home and did not confront those who had threatened him before he left in 2012. His father avoided checkpoints travelling to/from the airport when he travelled to Iraq in 2015.  Although his mother had to go to the hospital for treatment the applicant said that he did not take her to the hospital; his brother took her for her treatment. 

7. The applicant’s advisor made oral submissions to the Tribunal in support of the applicant’s application for review concluding that a return to Iraq itself is not evidence of incorrect information being given by the applicant at the time he made his protection visa application and that it cannot just be assumed from the later return that the information is incorrect.

   Consideration

8. The Tribunal accepts and finds that the applicant travelled back to Iraq from Australia on one occasion only after he was granted his protection visa in August 2013, following a successful application for review to the RRT about the initial refusal of the grant of the visa by the Department’s delegate. It is not in dispute that the applicant travelled to Iraq [between] January 2015 [and] April 2015 and the entries in his relevant Titre de Voyage issued in Australia and produced to the Tribunal support this finding.

9. The Tribunal also accepts the applicant’s evidence that he stayed with his parents and his brothers in the family home in Nasiryah, Dhi Qar Province in Iraq, where he was living prior to initially leaving Iraq in 2012, while he was offshore in Iraq in 2015.

10. The Tribunal has some doubt about the credibility of some of the applicant’s evidence before the Tribunal and considers that he embellished his evidence to assist him in his application for review. He told the Tribunal that he did not leave the house for the whole time he was in Iraq in 2015, that he was in hiding there and on one occasion told the Tribunal said that he stayed in hiding in the basement of the house. The Tribunal does not accept as true that the applicant never left the family home for the period of almost three months that he was in Iraq and/or that he was in hiding there for the whole time he was in Iraq on his return there. Also the Tribunal has some doubt about the reliability of the medical report produced by the applicant about his mother’s health condition, treatment and operation in late 2014 which the applicant said was the reason he decided to risk returning to Iraq in early 2015 even though he knew that the security situation for Sunnis in his area had deteriorated. The medical report is expressed to be from [Hospital 1] noting that the “injured lady” who is named was admitted by that hospital [in] December 2014 for major [surgery]. The applicant however told the Tribunal, very definitely, on two occasions when it asked him about his mother’s treatment, that she had her operation [in] December 2014 and further that she was in [Hospital 2]. When the Tribunal raised its concern with him about the name of the hospital as shown on the medical report he said that the name of the hospital could have changed.  Further, although the applicant told the Tribunal that his father died on [Date 2] 2016 the death certificate he produced to the Tribunal as translated indicated that his father died on [Date 3] 2016. The interpreter at the hearing however confirmed as correct the applicant’s explanation for the inconsistency which was that there was a translation mistake and that the death as recorded in Arabic on the death certificate is [Date 2] 2016, consistent with the applicant’s evidence. The Tribunal accepts that the applicant’s evidence to the Tribunal about his father’s date of death is not inconsistent with the death certificate as correctly translated.

11. While the Tribunal has some doubts about the applicant’s credibility and the document he produced about his mother’s operation and hospital treatment, the Tribunal accepts that the applicant, who had been away from Iraq, and his family, for some years returned to Iraq in 2015 to see his family, in particular his mother, whose wish it was to see him, and that when he was there he avoided those who had threatened him in the past and generally kept a low profile because he was a young Sunni male returning to a mainly Shia area during a period of heightened sectarian violence.  

12. The Tribunal’s task in this application is not to decide whether the applicant should have been granted his protection visa. The Tribunal’s task in this application is to decide whether the information given in the applicant’s protection visa application forms about his fears of being harassed, threatened, harmed or killed by Shias/Shia militias, supported by the Iraqi authorities, if he returns to Iraq, due to his Sunni religion, is incorrect having regard to his return trip to Iraq and his stay in Iraq for approximately three months following the grant of his protection visa on 14 August 2013, without being harmed or threatened by Shias/Shia militias. To decide that the applicant did provide incorrect information in his protection visa application as described in the NOICC the Tribunal would be required to draw an inference from the applicant’s conduct in returning to Iraq and staying there for approximately three months, without harm/threats of harm, that his earlier statements about fearing harm in Iraq are incorrect. The applicant’s particular claims are relevant when considering whether that inference can properly be drawn.

13. The Tribunal considers that in some cases, and in some circumstances, inferences can properly be drawn from subsequent conduct and actions that prior statements that have been made are incorrect, or likely to be incorrect. The Tribunal notes however that in the case of cancellations of visas, the Tribunal must be positively satisfied that the grounds for the cancellation as described in the NOICC are made out.

14. The Tribunal considers that the applicant’s claims, namely that he fears/feared being harassed, threatened, harmed or killed by Shias/Shia militias, supported by the Iraqi authorities, if he returns to Iraq, due to his Sunni religion, which were made in his protection visa application in July 2012, are not necessarily inconsistent with the applicant’s return trip to Iraq in January 2015 and his stay there for three months without harm. Visiting Iraq for the relatively brief period of three months and keeping a low profile there during that time is very different from living and working in that country long term, as the applicant did before he left Iraq in 2012.

15. Given the applicant’s response to the NOICC, both in writing and in evidence before the Tribunal, the Tribunal is not positively satisfied that the applicant gave incorrect information as described in the NOICC at the time he made his protection visa application which was some time before his return to Iraq in 2015. In his responses the applicant essentially explained that although he fears/feared harm in Iraq for the reasons that he claimed he took a risk when he returned to his country because it was his mother’s wish to see him and he felt he had no choice but to return to see her. He said that he remained afraid of harm in Iraq especially as the security situation for him as a Sunni had deteriorated, and he took steps to keep a low profile and avoid those who had previously threatened him while he was there. He did not return to Iraq either before or after his one trip in 2015 to see his mother. He said that one of his brothers was later displaced from the area into refugee camp because of escalating sectarian violence and another brother left Iraq to go to [Country 1] for that reason. He explained to the Tribunal that he was able to exit and enter his country using a travel document in his name because his difficulty was with the Shia militias.

16. While the Tribunal considers that the applicant has to some extent embellished his evidence about the reason he returned to his country in 2015 the Tribunal considers that the applicant has a reasonable explanation for his return to Iraq and his stay there which is not inconsistent with the answers he provided in his protection visa application form about his fear of harm in Iraq, as described in the NOICC.  

17. On the evidence before it the Tribunal is not positively satisfied, as it must be, that the information the applicant provided in his application for protection visa, including the information in his statement made 12 July 2012, as described in the NOICC, is incorrect. Accordingly the Tribunal is not positively satisfied that the applicant has not complied with s.101(b) of the Act

    Conclusion

18. For the above reasons the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice.  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

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

    Ms Christine Long
    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.