1816865 (Refugee)

1816865 (Refugee) [2019] AATA 4395 (23 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816865
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Meena Sripathy
DATE:23 April 2019
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 23 April 2019 at 11:24am

CATCHWORDS

REFUGEE – protection visa – Iraq – Religion – Shiite – Al Qeada – return visit to Iraq – other militant groups – fear of being killed – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5, 97-105, 107,108, 109
CASES
McDonald v D-G of Social Security (1984) 1 FCR
Mian v MILGEA (1992) 28 ALD 165
MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283
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

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).
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.2.41, that the visa be cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 9 April 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.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CLAIMS AND EVIDENCE
A notice of intention to consider cancel (NOICC) was sent to the applicant on 22 February 2018, advising him of non compliance with s101(b) and 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 he was a Shiite and feared being killed by Al Qaeda and other militia groups; he claimed he could not remain in one place to avoid being located and the authorities cannot protect themselves against Al Qaeda and are unable to protect him. However, since the grant of the Protection visa he has travelled to Iraq on five separate occasions for a total period of approximately nine months without experiencing any apparent harm or impediment. His returns to Iraq indicates he did not have a fear of returning there or a fear of Al Qaeda or other militia groups and did not hold the claimed profile of interest to Al Qaeda or other militia groups as claimed in his Protection visa application and the answers he gave to questions 42 to 46 of Part C of Form 866 were incorrect and he has not complied with s 101(b) of the Act.
The applicant, through his representative, provided a response to the NOICC on 2 May 2018, including a Statutory Declaration from the applicant and supporting documents. The Tribunal notes that the applicant’s response and supporting documents were not included in Departmental file [file deleted], but were subsequently forwarded to the Tribunal by the Department following a specific request, along with other documents referred to in the decision record including the correspondence relating to the ITOA process undertaken in 2016 and the original protection visa decision record. At the hearing, the applicant’s representative provided the Tribunal other relevant documents contained in Departmental file [file deleted] obtained by him under FOI.
In his Statutory Declaration the applicant declared that he did not give incorrect answers to the Department as he does have a well founded fear of persecution and fears return to Iraq. He stated he returned to Iraq for compelling reasons as stated in previous statements to the Department. He provided the following explanations for his return trips:
·The first trip was to meet his father. He only went to [City 1] and not anywhere else in Iraq. He used his Titre de Voyage travel document. His father suffered from [a medical condition]. He is the only son and it was his father’s wish to see him.
·The second trip was also to see his father who was critically ill. His [father had a medical procedure] done in [Country 1]. He previously provided photos of the operation to the Department. He stayed this time in [City 2] and did not go to Baghdad. He avoided going out, except to [City 3] to obtain [further treatment] for his father. As the only son in the family they relied on him to do this. His two uncles, one of whom is an Australian citizen took his father to [Country 1] for the operation. He kept a low profile during this trip, was still in fear of harm from militias.
·The third trip was because his [father suffered a medical condition and] had ceased working [and needed further treatment]. He stayed at his uncle’s house in Baghdad because there were no other [medical equipment] in Iraq. He was very cautious and disguising himself all the time. His uncle’s house was in the [City 4] area of Baghdad which is majority Sunni. At some point he was informed of the availability of a [medical equipment] in [City 3] and took his father there.
·The fourth trip was because he was told by his sisters that his father was dying. He stayed with his father in [City 2] [throughout] this visit. His father passed away [in] 2015 after the applicant left. He was devastated.
·The fifth trip was to arrange for a [specific country] visa for his family members, and he also needed to finalise the inheritance documents and authorise his uncle to be a power of attorney for him. His family fled Iraq for [Country 2] and registered with UNHCR and subsequently they relocated to [Country 3] where they registered with UNHCR. They continue to live there.
He attached a copy of his Titre de Voyage (issued [in] 2015 and valid to [2017]) showing entry and departure stamps for the 2016 trip, UNHCR certificates issued [in] [2017] in [Country 3] for his family members and photos of him with his father.
The ITOA letter sent by the Department to the applicant on 15 July 2016 invited him to provide explanations for his five visits to Iraq since he was granted protection and also comment on whether his five returns visits to Iraq and periods spent there indicate he did not hold the alleged adverse profile he claimed in his protection visa application. The applicant, through his representative, provided a response to this invitation dated [August] 2016 with supporting documents. The response referred to the applicant’s reasons for travelling back to Iraq (consistent with the explanations provided in his Statutory Declaration referred to above) and submitted that the applicant was at risk of harm as a Shiite Muslim, and also at risk of being kidnapped and held for ransom because he had been living in Australia. It was also submitted that he could not return to southern Iraq because, as a result of having lived in Australia since 2010 he had adjusted and assimilated and his lifestyle, attitudes and values would contradict the conservative values predominant in southern Iraq. Supporting documents were attached including medical reports from [a] Hospital relating to his father’s [medical procedure in] 2012, a death certificate for his father evidencing his death [in] 2015, documents relating to his father’s will and assets, a power of attorney given to the applicant’s uncle [in] February 2016 and photos of the applicant and his father.
The Tribunal has before it the Refugee Status Assessment Record dated 1 March 2011 finding that the review applicant had a genuine fear of harm and faced a real chance of persecution on the basis of his Shia religion. The delegate’s decision was made following an interview with the applicant in which he provided evidence in support of his claims and based on this and supporting country information, the delegate accepted the credibility of the applicant’s claims to a well founded fear of harm.
Evidence before the Tribunal
[In] April 2019 the Tribunal received a submission from the applicant’s (new) representative. In summary the submission makes the following points:
·The applicant maintains that he did not provide incorrect information in his protection visa application and that his return trips to Iraq were for compelling reasons.
·The applicant’s return at a later stage to the country from which he sought protection does not mean that he provided incorrect information in that application, reference is made to the decision of another AAT matter [information deleted]
·The applicant’s subjective fear of harm when he applied for refugee status was supported by country information and the applicant’s evidence. The fact that he was not harmed when he returned to Iraq does not prove the events he described were not true or that he did not have a subjective fear of harm at the time he made the application. The applicant took steps to minimise the chance of harm in Iraq, including staying away from his home area and being discreet. His motivation for visiting is set out in his response to the NOICC.
·The representative makes reference to relevant UNHCR guidelines on return to an applicant’s home country and the introduction of condition 8559 into the Migrations Regulations in June 2013, which contemplates the possibility of return in exceptional circumstances, although it is noted this condition does not apply to the applicant as he was granted a protection visa in May 2011.
·The NOICC issued on 22 February 2018 relied on an ITOA that was old and no further ITOA was undertaken. The earlier ITOA dated 15 July 2016 suggested that the applicant could relocate to [City 2] in Iraq’s south and referred to the applicant’s wife and children as residing there. The applicant’s response to the NOICC of 22 February 2018 included information that the applicant’s family had left Iraq and sought protection with the UNHCR in [Country 3] but this information and evidence in support does not appear to have been taken into consideration in the cancellation decision. It is submitted the delegate failed to consider the applicant’s responses in making its decision to cancel the visa and therefore the procedure set out in s108 was not properly followed.
·It is argued that the delegate who cancelled the visa did not reach the necessary state of mind to engage s101 in the first place because he failed to prove that the mere return to home country is linked to the alleged incorrect information, for example Al Qaeda does not control the Iraqi roads or airports, they are not represented in the Iraqi government and the applicant never claimed to fear the Iraqi government or even Shia militants in the South.
·The submission addressed the matters arising in the consideration of the exercise of the discretion, if there is found to be non compliance in the way described in the notice under s107. Submissions were made relating to the compassionate and compelling circumstances for the applicant’s travel to Iraq in the past; his behaviour and caution while in Iraq; the protracted and ongoing separation of the applicant from his wife and children due to various Ministerial Directions mandating least priority to family stream applications made by IMAs; the applicant’s actions in contacting the Department before each of his trips and advice he claims to have been given; his otherwise compliant and law abiding behaviour since coming to Australia; and his current status of being in full time employment.
Tribunal hearing
At the hearing the Tribunal took oral evidence from the applicant. A summary of his evidence follows. He recently moved from the place he was living for the past 5-6 years to a new place with [a relative]. He is working full time at [his occupation]. He has been in this job for [a number of] years.
He is married and has [number] children, [age deleted]. His family is wholly financially dependent on him. They are presently residing in [Country 3]. They fled from Iraq to [Country 2] in 2016 soon after the applicant’s last trip to Iraq, and after two months there they travelled to [Country 3]. The children are not studying or doing anything in [Country 3] because of their circumstances.
The applicant has [sisters] in Iraq. His father passed away in 2015. He now has little contact with his sisters because of issues that arose from the time he was forced to go to [City 2] and live with them because of what happened to him in Baghdad in 2007. He had no option at that time but to go to [City 2] with his family. He moved between each of his sisters during this period because none of them wanted to have him and his family. He was humiliated by them and it was very difficult. They were homeless and lived a nomadic lifestyle. The applicant confirmed that before 2007 he had lived in Baghdad, in the [City 4] neighbourhood in his father’s house. His father lived with him until he left for reasons of the sectarian violence. His father left in 2005-2006 for [Country 4] for several years, and after that returned to [City 2] and lived with the applicant’s eldest sister. He also moved around from there, spending some time in Baghdad at his brother’s house in [City 5].
The Tribunal asked the applicant about the reasons he stated he could not return to Iraq when he came here in 2010. He said he was wanted by Al Qaeda because he was the only Shia left in his neighbourhood. All the other Shiites had been killed or left by then. His car was shot at and he left straight after that. He called his brother in law who collected his family and they all went to [City 2]. After some 3 years he came to Australia. His wife and children remained in [City 2] living with his sisters because they had no other choice. His wife’s sister’s husband died in [an] accident so his wife could not go and live with her sister. They stayed between [City 2] and [City 6] where he had a friend. In 2016 the applicant travelled there to arrange for them to leave Iraq because it was becoming unbearable for his wife. His sister was treating her like a maid in her house.
The Tribunal asked the applicant about his trips back to Iraq since he was granted protection. He said he used his Australian travel document each time he travelled. The Tribunal asked if he has the old travel documents as evidence of this travel. He said he does not have these documents anymore because he lost them among other documents that were in a bag that was stolen. He handed up a NSW Police event card to show that he had reported the incident to police at the time. When asked what was contained in the bag he lost, he said it had his two previous travel documents and an old Iraqi passport that he had brought back from Iraq on his last visit. The Iraqi passport was an old expired one, not the one he used on his journey to Australia which the smuggler took from him. He cannot recall the date when the bag was stolen. After this he applied for and was given another travel document which has also expired now but which he still has (but had not brought to the hearing). The representative referred the Tribunal to the copy of this most recent travel document, issued [in] 2015 and valid to 2017 provided in his response to the NOICC. The Tribunal noted that the second travel document was valid until 2016 and was used by him on his [2015] trip as evidenced on the date stamps on the copy held on the Department file (at folio 40) suggesting that he lost this document somewhere [in] 2015. He agreed with this. The representative referred the Tribunal to copies of the applicant’s first Titre de Voyage, Iraqi passport and travel itinerary that were placed on his file by the Department [with] an Immigration Inspector’s report dated [August] 2011 noting the applicant was interviewed and indicated he was travelling back to Iraq.
The applicant said the first trip he made was not to Iraq but to [City 1] which is an autonomous area. He provided his itinerary to the Department. (The representative indicated the copy of this document was held [at] folio 96.) He went to see his father who was suffering from [a medical condition]. His father travelled to [City 1] by plane with the applicant’s sister and step mother from [City 3]. The applicant’s wife and children also came by plane from [City 3]. The Tribunal asked if he has any evidence of their travel or other evidence of their stay in [City 1] in this period. He said he had various documents to support this but they were all in the bag that was stolen. His family didn’t need to use their passports to travel to [City 1].
The applicant said he contacted the Department to inform them of his intention to go to [City 1]. He said he contacted them before each of the trips. They never told him that he was not permitted to travel to Iraq, they only told him that he should bring evidence to explain the reason for the visits. The Tribunal put to the applicant that it has only been able to find one file record of his contact about going to Iraq, being [in] November 2015, and the file record indicates he was cautioned that it could lead to cancellation. The applicant denies he was ever told this. He said if he was told this he would never have gone to Iraq. They never told him he was not permitted to travel, only that he should have evidence to support the reasons for his travel.
The second trip in February 2012 was when his father [had medical treatment]. He went to care for him. The Tribunal noted that his father went to [Country 1] [for a medical procedure] and asked why he didn’t visit him there instead of Iraq. He said he needed a visa to go to [Country 1] because he only had an Australian travel document not citizenship and it was going to take several months to get so he could not go there. His uncles (from Australia and [Country 6]) took his father to [Country 5] and brought him back to Iraq. The applicant said he met his father in Baghdad and they stayed there for one or two weeks before going to [City 2], where he stayed for the rest of the time. During this period he had issues with his sister about supporting his family. The Tribunal asked the applicant how was it possible for him to stay in [City 2] when he claimed in his protection application that he was unable to remain safely anywhere in Iraq. He said when he returned to Iraq he did so under the [applicant name] which he has used since coming to Australia. Al Qaeda know him as [Alias 1] so they would not have known he was back. During this visit he went only to [City 3] for the purposes of [seeking further treatment for his father]. They travelled to [City 3] by car. He experienced no adverse security incidents. He stayed most of the rest of the time in [City 3] with his father.
The third trip back was because his father’s health was deteriorating badly. He had to undertake [a medical procedure] and this was in Baghdad. The Tribunal noted that the travel entry stamp indicates he entered and exited from Baghdad airport on this occasion. In Baghdad they stayed at his uncle’s house in [City 5]. The Tribunal noted that country information before it indicates [City 5] is a majority Sunni neighbourhood and asked how he was able to be safe there. He said he was sporting a beard and with his name change he was able to pretend he was Sunni. His father was subsequently [had a medical procedure] in [City 3] and they moved him there.

The fourth trip back in 2015 he spent most of the time with his father at [City 2][at the hospital] and hardly went out. His father passed away after he returned to Australia, in [in] 2015.
The last trip was in 2016. He went back to deal with the matter of his father’s inheritance and to make arrangements for his family to leave Iraq. His children had not been to school since 2013 and his wife was being treated like a maid by his sisters and he had to get them out. He applied for visas for them for [Country 2]. As soon as the visas were granted they left for [City 7] and from there they went to [Country 3]. He was required to apply for the visas for them in person because his daughter was still a minor.
The Tribunal explained to the applicant that it must first consider the issue of the validity of the notice issued to him on 22 February 2018. In considering this it must be satisfied that the notice was properly initiated and contained particulars of the case he was required to meet. If it is satisfied of these matters, it will go on to consider whether there has been non compliance in the manner described in the notice, and only if it finds there has been such non compliance will it be necessary to consider its discretion whether to cancel the visa.
The Tribunal discussed with the applicant’s representative issues arising in his submissions. Specifically it asked him if he was arguing that the notice issued under s107 was invalid and on what basis. He said he is not arguing that the notice is invalid but he believes the delegate failed to correctly follow the procedure required by s108 because he failed to consider the applicant’s response to the NOICC and erroneously relied on the ITOA which was outdated. Specifically the ITOA that was issued in 2016 asked the applicant for comment on the issue of relocation to the south at that time and noted that his wife and children were living there. However, by the time the NOICC was issued in February 2018, the applicant’s wife and children had fled Iraq and were living in [Country 3] and the delegate failed to mention this critical information in the decision. The representative argues that the cancellation decision is invalid on this basis because the s108 procedure must be followed. He further argues that the notice is insufficiently particularised because there is no evidence provided that Al Qaeda ever controlled Baghdad or the south or the airports in Iraq. He argues that the delegate misconstrued the applicant’s claims for protection entirely. The delegate who granted the visa did so on the basis that it was accepted the applicant was personally targeted by Al Qaeda in his area and that at that point in time there was country information which supported that Al Qaeda had the ability to infiltrate the south and there was a real chance he would face harm even there. The cancellation delegate appears not to have understood this and for this reason he argues the particulars are insufficient for the applicant to respond to the allegation.
The hearing concluded at this point due to the expiry of the interpreter booking. The Tribunal indicated to the applicant that it would convene a further hearing to address issues not discussed to that point if necessary. However this was not ultimately necessary due to the conclusion reached by the Tribunal on the threshold issue of whether the alleged non compliance was made out.
FINDINGS AND REASONS
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The 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.
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?
In the present case, the notice to consider cancellation (NOICC) the Tribunal is considering was issued on 22 February 2018. The Tribunal notes a previous NOICC was issued on 24 May 2016 addressed to [name deleted] of a different date of birth. This decision to cancel the visa was set aside by a (differently constituted) AAT on 17 January 2017 on the basis of finding the s107 notice to be invalid on account of there being no evidence the applicant was ever known to the Department by that name and date of birth.
The present NOICC was issued to the review applicant after this. Through his representative the applicant has submitted among other arguments that the notice issued by the Minister’s delegate failed to comply with s.107 for reasons of insufficient particulars. 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?
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. 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 sufficient particulars of the possible non-compliance for the applicant to be aware of the case he had to meet.
The NOICC referred specifically to responses by the applicant in his [number deleted] Form, questions [number] and his Statement of Claims [in] January 2011, in which he stated that he was targeted by men with guns who attempted to kill him and he feared being killed by Al Qaeda or terrorists in Iraq if he returned on the basis of his Shiite religion. It then provided details of his trips back to Iraq on five occasions between [specified month] 2011 and [specified month] 2016, for periods totalling 9 months, without experiencing any apparent harm or impediment. The notice alleges that these voluntary return travels to Iraq for the periods stated indicates that he did not have the fear of returning to Iraq and fear of Al Qaeda and terrorists as claimed and indicates that he did not have the adverse profile as claimed in his Protection visa application. Apart from the information about the return travel, no other basis for the allegation of incorrect information was particularised in the notice.
The s.107 notice is a critical step in the cancellation process as it provides the visa holder with an opportunity to show that the grounds for cancellation do not exist, or, if they do exist, to put forward reasons why the discretion to cancel should not be exercised. Case law establishes that 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].
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
In Saleem v MRT, 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]
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.
Taking the above mentioned authorities and principles into consideration, in the present case, the Tribunal finds there are significant shortcomings in the particulars notified to the applicant on which the alleged non compliance is based. The Tribunal finds 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 return trips and not experiencing any apparent harm or impediment. 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 who fought the coalition forces in Iraq, the mere return to home country from 2011 doesn’t of itself prove that he gave incorrect information as to his state of fear of return to Iraq in 2010 and in this respect the delegate appears to have misconceived or misunderstood his claims.
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).
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 by Al Qaeda and terrorists because he is Shiite) and alleges these statements are incorrect because he returned to Iraq on five occasions, stayed for a period of 9 months without apparent harm or impediment and therefore did not have the adverse profile as claimed.
Was there non compliance in the way described in this notice?
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.’
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.
The Tribunal accepts that the applicant returned to Iraq on five occasions between 2011 and 2016, on the dates and for the periods referred to in the notice. The applicant has acknowledged this in his written and oral evidence to the Department and Tribunal and this evidence is consistent with his movement records before the Tribunal. The Tribunal also substantially accepts the applicant’s explanations for each of the return visits, and that they were for compelling family reasons. It accepts that the first visit in August was to see his father, wife and children and that he flew into and out of [City 1]. His itinerary showing flights to and from [City 1] was provided to the Department at the time of his departure, together with his Australian travel document and an expired Iraqi passport (valid to [2011]). These documents were on Department file [file deleted]. The Tribunal observes that there is no other evidence to support that he remained in [City 1] throughout the period of this visit, or evidence of his family members’ travel to [City 1] and he was unable to provide any further evidence because he claims the bag containing the evidence he had was stolen. In support of the ‘lost bag’ claim he showed the Tribunal a police event number indicating he had reported this incident, and it is noted his [number] Titre de Voyage was issued [in] October 2015 (consistent with his claim to have lost the second one, which would have otherwise remained valid until [2016]). Given the Tribunal’s general acceptance of his explanation for the visit and in the absence of any other evidence contradicting his claim to have stayed throughout this period in [City 1], the Tribunal has no basis to find otherwise.
His second visit in February 2012 was following his father’s [medical procedure] and for the purposes of caring for his father and arranging [further treatment] for him. The Tribunal questioned the applicant about why he did not travel on this occasion to see his father in [Country 1] where the surgery was conducted rather than returning to Iraq. He explained that he made enquiries and was informed he would need to apply for a visa as the holder of a travel document rather than a passport and therefore decided to see him in Iraq instead. He also claimed in written responses that he was needed in Iraq to make [further] arrangements for him. The Tribunal accepts that the applicant’s father had [a medical procedure] in [Country 1] in January 2012 and his explanation for this visit. The third visit also related to his father’s ill health when he was arranging for [further treatment], initially in Baghdad and later in [City 3]. The fourth visit was at the time of his father’s deteriorating health and the applicant claimed he stayed most of the time with him in hospital [City 2]. He provided evidence that his father died in [2015], consistent with his explanation of this visit. The fifth and final trip was in January 2016. The applicant explained that he was required to go to Iraq to deal with his father’s inheritance and also wanted to make arrangements for his wife and children to get out of Iraq because their conditions there were getting increasingly difficult. He assisted them to apply for visas for [Country 2], which they subsequently obtained and departed for [Country 2]. He stated that they went from [Country 2] to [Country 3] and registered with the UNHCR there and this is where they remain to date.
The Tribunal has considered the applicant’s explanations and evidence for his five trips back to Iraq since the grant of protection. He has provided reasonable and detailed explanations for his return travel and on the basis of these explanations the Tribunal accepts there were compelling family reasons for the visits. It has also considered the evidence before it regarding his protection claims. He claimed in his protection visa application that an attempt was made on his life by Al Qaeda terrorists in [neighbourhood 1] in 2007 and he fled from there to [City 2] where he lived from 2007 to 2010. He recounted this incident before the delegate at an interview in January 2011 in his original RSA process and gave a consistent account prior to that at his entry interview shortly after arrival in Australia in December 2010. Before the Tribunal he maintained and repeated these claims. On the basis of the coherent and consistent account of his claims, the country information referred to by the delegate in the RSA decision record which supports his claims, and the Tribunal’s acceptance that he had compelling family reasons for his subsequent visits the Tribunal is not satisfied there is any basis to support a finding that the information he provided in his claims are incorrect.

At the time he made his claims for protection the applicant feared Al Qaeda and militia groups because of an attempt made on his life in 2007 on the basis that he was one of the last Shiites left in his Sunni dominated neighbourhood in [neighbourhood 1] and that this incident led him and his family to flee from his home to [City 2]. He held a subjective fear for his life for this reason and it was the reason he fled from Iraq in December 2010. The Tribunal accepts the applicant returned to Iraq five times since being granted protection for family reasons relating to his father, who has since passed away. It accepts his wife and children have now left Iraq and are living in [Country 3], having registered with UNHCR. The Tribunal accepts the applicant has provided compelling family reasons for his return visits to Iraq. It is not satisfied that these return visits alone are a sufficient basis to make conclusive findings that he did not have the fear of returning to Iraq and fear of Al Qaeda and terrorists as claimed in his protection visa and or that an attempt was not made on his life in 2007 and he did not have the adverse profile as claimed in his application. He maintains that he feared for his safety in Iraq even when he travelled back and conducted himself in a discreet manner to avoid harm each time he returned. On the evidence and material before it the Tribunal is not satisfied that there was non compliance by the applicant in the way described in the notice. It is not satisfied that the information he gave in his protection visa that he was targeted by men with guns who attempted to kill him and he feared being killed by Al Qaeda or terrorists in Iraq if he returned on the basis of his Shiite religion was incorrect.
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
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.

[2019] AATA 4395

23 April 2019

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