1821052 (Refugee)
[2020] AATA 5374
•30 December 2020
1821052 (Refugee) [2020] AATA 5374 (30 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1821052
COUNTRY OF REFERENCE: Iraq
MEMBER:Nicole Burns
DATE:30 December 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 30 December 2020 at 11:09am
CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect information in visa application – claimed adverse profile, past experiences and future fears of persecution – imputed political opinion – opposing an armed militia group – three voluntary returns for extended periods –compelling family-related reasons for returns – low-profile visits – sought written permission from department – wife later killed and no travel by applicant since then – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), Schedule 8, Condition 8559
CASES
SZEEM v Minister for Immigration [2005] FMCA 27
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
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 they were satisfied the applicant had provided incorrect information in relation to his protection visa application in breach of s.101 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.
The applicant appeared before the Tribunal via videoconference on 17 November 2020 to give evidence and present arguments about the issues in his case. 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. He participated in the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant immigration background
The applicant is a [age]-year-old Shia Muslim from Maysan Governate, south eastern Iraq. According to Departmental records he arrived on Christmas Island as an irregular maritime arrival [in] June 2010, having left Iraq not long before (via [Country 1] and [Country 2]). He was granted a protection visa on 21 December 2011 based on fearing persecution on imputed political opinion grounds. That visa was cancelled on 17 July 2018 (the subject of this review).
The applicant’s wife (who remained in Iraq) lodged an offshore Refugee and Humanitarian (Subclass 202) visa on 27 February 2012 with their children listed as dependents. The Department refused that visa application on 15 January 2014. His wife then lodged a Provisional Partner (Subclass 309/100) visa application on 22 April 2013 with their children as dependents. The applicant withdrew the partner visa application on 1 June 2017 after his wife was tragically killed in Iraq [in] October 2014.[1] The applicant then lodged Child Migrant (Subclass 101) visas for his children on 18 June 2017 which are pending. Earlier, on 5 May 2016, the applicant had lodged an Australian citizenship application.
[1] A translated copy of the applicant’s wife’s death certificate was provided to the Department and the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
On the Departmental file is a copy of a Notice of Intention to Consider Cancellation (NOICC) dated 9 January 2018 which advised the applicant that his visa may be cancelled under s.109 because of concerns that he did not comply with s.101(b) (no incorrect answers are given or provided in filling in or completing his application form) of the Act. He was advised to respond in writing. The applicant’s representative provided written responses and a typed statement by the applicant.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
Notice of Intention to Consider Cancellation
The non-compliance identified and particularised in the s.107 notice in relation to s.101(b) was that the applicant had provided incorrect information in relation to his protection visa application in certain respects. Specifically, the notice states that in a statutory declaration dated 3 September 2010 the applicant claimed to be a former Iraqi [Occupation 1] who from September 2003 was part of a force to protect an Iraqi [building] from terrorist attack. He believed he would be persecuted by a terrorist group and claimed to be responsible for the arrest ([in] April 2010) of some of their members, who had attempted to plant roadside bombs, whilst guarding [the building] as [an Occupation 1]. The applicant’s protection visa based on this information and related claims was granted on 21 December 2011.[2]
[2] After being found by an Independent Merits Reviewer (IMR), who reviewed the Refugee Status Assessment decision, to be a refugee on 19 July 2011.
However, subsequently, as recorded in the NOICC, information[3] before the Department indicated that the applicant had returned to Iraq three times (the first time within four months of being granted protection) for a total of 388 days, as follows:
· [April] 2012 – [October] 2012
· [June] 2013 – [September] 2013
· [May] 2014 – [September] 2014.
[3] Including declarations on the applicant’s outgoing and incoming passenger cards about where he would/had spent most of the time abroad, and the applicant’s Iraqi passport which he allegedly obtained when visiting his hometown in June 2012. This passport shows entry and exit stamps pertaining to the 2013 visit, and visas to visit [Country 3], issued in Basra in 2014.
The NOICC records that the applicant’s voluntarily returns to Iraq indicate that he did not have a fear of returning and did not hold an adverse profile as claimed in his protection visa application. Particularly given he was unharmed, engaged with the authorities during entry and exit procedures, and remained in the community for extended periods, undermining his claimed fear of persecution there. According to the NOICC, this indicated that the applicant had provided incorrect information in association with his protection visa application about his experiences in Iraq, profile and future fears. Specifically, his answers to questions 43, 44 and 46 on form 866C of the protection visa application, about what he feared may happen (if he returned to Iraq), who he thought may harm or mistreat him, and whether the Iraqi authorities could or would provide him with protection.
Response to the NOICC
In response to the NOICC, which sets out this information, the applicant provided a written statement[4] in which he sets out his background, experiences in Iraq that led to his departure and reasons for his return there after he was granted protection in Australia (and circumstances while there), summarised as follows:
a.First visit: [April] to [October] 2012: concerned about the health of his third child (who was born on [date]) who had developmental issues, the applicant decided to return to Iraq, hoping for a diagnosis of his [child]’s problems and possible treatment, either in Iraq or [Country 3]. He needed a passport for his [child] to go to [Country 3] for treatment, which purportedly required his presence. On arrival in Iraq the applicant was taken straight from the airport to a newly rented house for his wife and children (as he kept changing their place of residence in their province of ‘[name]’); they also stayed with some other family members in Basra for a short period of time whilst trying to get health care for his [child]; after two months he decided to travel to [Country 3] with his [child] for medical treatment; however, he did not go to [Country 3] because his mother had a stroke. He obtained Iraqi passports for himself, his wife and his children. He obtained an Iraqi passport for himself because of concerns his Australian travel document might be an issue at [Country 3] customs as his family are Iraqi and have different passports, and because his previous passport was issued under a different (subsequently abolished) class. The applicant sent some documents to a doctor in [Country 3] who said his [child] could be treated in a hospital there for USD12,000. The applicant was unable to help his child but could not stay longer so he returned to Australia in the hope to find a solution.
b.Second visit: [June] to [September] 2013: after being advised by the Department that the humanitarian visa was not an option to sponsor his family, the applicant applied for an offshore partner visa in April 2013. He decided to return to Iraq while this was being processed based on advice from his lawyer that it would be finalised within three to six months. He returned to Iraq to be with his family to make sure they could move safely to Australia, given his wife was alone with their children. Although his wife was interviewed in respect of her partner visa application while the applicant was present in Iraq no decision was made and he had to return to Australia to resume his employment and to find out why there was a delay.
c.Third visit: [May] to [September] 2014: the applicant was advised by the Department that his wife’s partner visa application was on hold until he obtained Australian citizenship. Worried about his wife in Iraq – who had given birth to their fourth child – he decided to return, landing in Erbil, Kurdistan. From Iraq he visited [Country 3] from [June] to [July] to look at a place in [City 1] for his wife and children to move to. While there he agreed with some people to move his family from [Country 3] to [Country 2]. However, when he went back to [Country 3 later in] July, he returned to Iraq the same day because the people who had agreed to help him (and his family) had been caught.
[4] Undated.
The applicant also stated that after his return to Australia following his third visit to Iraq, he received news that his wife was killed in Iraq [in] October 2014. To be united with his children in Australia he applied for child visas, which were ‘still under processing’.
In his written submission[5] provided in response to the NOICC the representative argued that when the applicant applied for protection he provided supporting evidence of his work as [an Occupation 1] as part of a [taskforce]; he was very honest in his statement about the risks to his life associated with his position and work; his case was accepted at the ‘AAT and Federal Circuit court’;[6] and he had compelling reasons for his return trips since being granted protection, mainly for the safety of his wife and children. The representative submitted that during his visits to Iraq the applicant did not work, and maintained a low profile, noting his claims at the protection visa stage related to his employment in Iraq (as [an Occupation 1] protecting [buildings]). He also claimed to fear non-state agents – militias – some of whom have infiltrated the authorities; he did not claim to fear the authorities themselves.
[5] Undated.
[6] It is unclear what the representative is referring to given there is no record before the Tribunal of the applicant having been to the AAT (prior to the current review) or Federal Circuit Court in the past. The Tribunal presumes he meant the applicant’s case was accepted by the IMR in 2011.
The representative also submitted that the applicant sought written permission from the Department to travel back to Iraq, as per condition 8559 attached to his protection visa.
Review application
On review the representative provided a written submission[7] to the Tribunal setting out the applicant’s background, addressing the alleged non-compliance as detailed in the NOICC as well as the discretionary factors[8] (if the grounds for cancellation are made out). Supporting documents[9] were also provided.
[7] Undated, received on 15 November 2020.
[8] These factors have not been reproduced in the decision record given the Tribunal’s findings that the grounds for cancellation have not been made out in this case.
[9] These included copies of the applicant’s Australian travel documents and Iraqi passport; his wife’s death certificate; a copy of a translated court order confirming guardianship of the applicant’s children; documents pertaining to the applicant’s transport business in Australia; medical reports about the applicant’s mental health; copies of photographs of the applicant in uniform with others in Iraq, near [security] vehicle (one date stamped ‘[in Jan 2007]’); copies of several money transfers from the applicant to his father in Iraq dated 2017; and a letter of support from the Australia Shia Muslim Assembly dated [in] April 2020.
In the submission the representative argues that there was no non-compliance as set out in the NOICC; the applicant’s protection claims were made based on his previous employment which he did not resume in his travels to Iraq; and he had legitimate and compelling reasons to return. She contended that the applicant returned to Iraq for family emergencies, and at no point resumed daily living there.
The representative reiterated the applicant’s protection claims and fears articulated at the protection visa application stage, which were correct then, and remain so, she argued. She contended that the applicant’s travels to Iraq for compassionate and compelling reasons – that is for his [child]’s medical issues and his need to relocate his family in fear of their safety – is not enough to establish a finding that answers to specific questions in his protection visa application form were incorrect. The other main points made by the representative in her submission are as follows:
a.The applicant’s claims were assessed and accepted by the ‘DR delegate’, who found the applicant faces a well-founded fear of persecution on imputed political opinion grounds (opposing an armed militia group alongside his status as Iraqi [Occupation 1]). The fact the applicant did not suffer harm on return to Iraq is inconsistent with the well-founded fear test and does not support a finding that his claims were untrue or that his fears were unfounded.
b.The applicant’s wife was killed in Iraq and since that time the applicant has not returned. The well-founded fear tests operate on a real possibility basis. Even if the probability of that harm occurring is lower, it must have a real chance of occurring. To make a finding that the applicant’s answer to the question about the harm he feared in Iraq is incorrect because he was not harmed when he returned to Iraq is factually incorrect from ‘a holistic perspective’, she contended.
c.The ‘DR delegate’ found the applicant had a well-founded fear of persecution from opposing armed militia, who are non-state agents. The delegate in the cancellation decision erred in concluding that the applicant’s encounters with the Iraqi authorities on his return visits ‘eliminates’ the fact he was previously targeted by militia (and faces a risk of harm): he feared terrorists and non-state actors, not the Iraqi authorities per se. The applicant’s claims that he could not seek adequate protection from the authorities due to militia infiltration is true. The applicant’s (brief) interactions with the authorities in Iraq during his return visits does not support a finding that they can protect him from harm by non-state agents.
Additionally, in her submission the representative cites another Tribunal decision[10] relating to a protection visa cancellation case, with similar circumstances. In that case the Tribunal (differently constituted) found the applicant’s return visits to Iraq did not equate to provision of incorrect information at the protection visa application stage; the fact the applicant returned to Iraq is not synonymous with the fabrication of his protection claims; and found his travel derived from his obligations to and concerns for his family.
[10] 1726336 [2019] AATA 6766.
Furthermore, the representative argued in this case at all times the applicant disclosed to the Department he was returning to Iraq and took active measures to protect himself during those periods.
At hearing the Tribunal discussed with the applicant the information contained in the NOICC. He disputed that there was non-compliance as alleged, stating that his protection-related claims as set out in his statutory declaration at the protection visa application stage were correct. The applicant confirmed he returned to Iraq three times after his protection visa was granted but argued there were compelling reasons to do so (which outweighed his extant fears); that he limited his movements whilst there; and he did not have problems from the authorities there because he used to be [an Occupation 1], and because the perpetrators he fears were non-government/non-state actors (that is various militia and/or ‘terrorists’, including those responsible for attempting to plant roadside bombs in 2010 who were arrested after he identified them). Whilst still unsure exactly who those individuals were, and what militia they were linked to, he speculated that they may have been part of the Mahdi Army,[11] noting they were active in his province against the US forces at the time. The applicant emphasised that his risk at the time (and now) from such groups was because he was seen to be an agent of the US and the coalition forces.
[11] An Iraqi militia group created by Shia cleric Muqtada al-Sadr in June 2003. See: Patrick Jackson, ‘Who are Iraq’s Mehdi Army?’, BBC News, 30 May 2007 <
The applicant told the Tribunal he has been trying to get his children (and wife, prior to her death in October 2014) to Australia since not long after he arrived here, wanting to be reunited as a family and also afraid for their safety in Iraq. Returning to Iraq to move them to safer residences, to help support his wife, and help organise them for possible migration here were key reasons why he returned: in 2012 to obtain his children’s passports, which he claims required their father’s presence; in 2013 to help them to migrate safely to Australia following advice that his wife’s partner visa application would take three to six months to finalise; and in 2014 after being advised that the partner visa application was no longer an option unless he became an Australian citizen and therefore exploring other ways to get his wife and children out of Iraq, including engaging people smugglers to move his family to [Country 3] (then to [Country 2]), which was ultimately unsuccessful. Less than a month after he returned to Australia from his last visit to Iraq the applicant said his wife was shot and killed in front of their children at the house they were renting. He does not know who the perpetrators were but fears they may have been looking for him. His children now reside with his parents in Iraq.
The applicant said another reason why he returned to Iraq the first time (in 2012) was to try and obtain medical treatment for [his child], who was delayed developmentally. However, he was unsuccessful in doing so, because the doctors he visited in Iraq were unable to diagnose [the child]’s problems. The applicant’s plans to seek a diagnosis and possible medical treatment in [Country 3] for [the child] were cancelled after his mother’s stroke.
Findings in respect to the alleged non-compliance
The Tribunal has considered the information contained in the NOICC, the applicant and his representative’s response to it, the applicant’s oral and written evidence to the Tribunal, the representative’s written submission to the Tribunal, and other relevant material before it to assess whether the grounds for cancelling the visa are made out.
In doing so, the key question to consider is whether there is sufficient evidence to reach a real state of satisfaction that incorrect information was provided. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context. However, where, as in visa 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). In Zhao v MIMA (Zhao), the Court stated:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show because why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[12]
[12] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
While that case was concerned with cancellation under s.116, the Court’s comments are equally applicable to s.109 cancellation, as in this case.
The Tribunal must rely on grounds referred to in the NOICC and is restricted to consideration of whether there was non-compliance in the manner particularised in the notice: SZEEM v Minister for Immigration.[13] In this case the NOICC particularises answers allegedly not given correctly concerning the applicant’s past experiences and related fears of persecution (and lack of state protection) from militia in Iraq. The delegate concluded these answers were incorrect given the applicant had returned to Iraq three times, unharmed and had engaged with the authorities there, as set out earlier.
[13] SZEEM v Minister for Immigration [2005] FMCA 27, relying on Allsop J in Saleem v Migration Review Tribunal [2004] FCA 234.
It is not in dispute that the applicant returned to Iraq three times after he was granted protection in Australia, for a period totalling 388 days between early April 2012 and early September 2014. There was evidence of his returns before the Department as set out earlier and the applicant has acknowledged his returns in his written and oral evidence to the Tribunal. He also provided copies of the relevant pages of his Australian travel documents (titre de voyage) and Iraqi passport, containing entry and exits stamps for these periods. His voluntary returns do raise a question about his claimed fear of persecution in Iraq at the protection visa application stage, as well as the lack of interest whilst there – extended community stays as noted by the delegate – by militia elements and/or terrorists who allegedly had an adverse interest in him. However these returns, considered separately and cumulatively, do not, in the Tribunal’s view, necessarily mean his claims at the protection visa application stage to have experienced problems in Iraq from militia elements because he thwarted a planned bombing (as a [Occupation 1] guarding a [building] near a [foreign] military base in [location]) and being fearful of persecution from such actors or other militia as a result, were untrue.
It is plausible that the applicant could be in Iraq for these visits – the longest for six months – and go unnoticed by militia and/or terrorists (and other non-state actors) he claimed to fear, particularly if he kept a low profile including not working and spending most of his time inside rented houses (with his wife and children), limiting his engagement with the outside world, as submitted. The fact that he was not harmed – discovered by Shia militia and/or terrorists he had help arrest during these visits – does not, in the Tribunal’s view, raise serious doubts about his protection claims made in 2010.
At hearing the applicant claimed during his visits to Iraq he stayed with his wife and children in several different rented houses away from his home area (but still in Maysan Governate) and kept a low profile, barely leaving the house – apart from necessary appointments – and did not visit his family home (his parents visited him instead). He clarified that he did not care for his mother after her stroke during his first visit back in 2012, in terms of staying with her, as was erroneously stated in the representative’s written submission to the Tribunal. He did, however, financially support her, and his other family members, through savings from his work as [an Occupation 2] in Australia.
The Tribunal accepts he stayed with his wife and children away from his family home during these visits, given his consistent evidence in this regard in his response to the NOICC and before the Tribunal. However, given he was vague about where he actually stayed – apart from stating he was in rented accommodation somewhere in Maysan – and for how long, the Tribunal is of the view that he exaggerated how many times his family actually moved residences. Additionally, the Tribunal is of the view the applicant has sought to minimise his activities and engagement with others during his visits to Iraq, particularly during his first return visit. That is because in his statement provided in response to the NOICC he said he also stayed with some relatives in Basra during this visit. Furthermore his claim that he barely left the house is at odds with his claims to have obtained passports for himself and his immediate family members during this visit, as well as his evidence that he visited several health workers seeking answers about his [child]’s developmental problems.
Despite these concerns the Tribunal accepts the applicant stayed with his wife and children in accommodation separate to his family home during his visits to Iraq, did not work, and maintained a somewhat low profile.
Even if the applicant was more engaged with the community whilst in Iraq during these visits, the fact militia (such as the Mahdi Army) and/or those ‘terrorists’ behind the attempted bombings did not seek to harm the applicant during his first (and subsequent) returns to Iraq does not of itself indicate to the requisite level of satisfaction that he gave incorrect information in his protection visa application about being of adverse interest to such groups and future fears (at the time). Whilst the Tribunal is of the view the applicant was more active during his visits to Iraq than claimed, it does accept he did not work, did not visit the family home, and kept a reasonably low profile, as noted earlier.
The Tribunal also accepts that circumstances can change, and the fact that the applicant was not of interest to militia and/or terrorists during his temporary visits two years after the main incident (in April 2010) does not necessarily mean he was not fearful of those actors at the time he made his protection visa application or that his claims of being of adverse interest to them as set out in his visa application (and statutory declaration) were untrue. Although he returned not long after his protection visa was granted, more than two years had passed since he allegedly was of interest to militias and family/tribal members of those foiled bombers in April 2010 to when he returned to Iraq the first time in April 2012. The Tribunal accepts he did not stay at his family home and stayed in rented accommodation with his wife and children, maintaining a reasonably low profile. It accepts he did not work. In such circumstances the chances of militia and/or terrorist groups discovering him are reduced.
The Tribunal also notes, as has been submitted, that the applicant feared militia and/or members of terrorist groups – non-state actors – at the protection visa application stage. Therefore it does not necessarily follow that the lack of interest during his interactions with the Iraqi authorities during his return visits meant that he provided incorrect information about who he feared at the protection visa application stage.
In the decision record the delegate noted – and gave weight to – the fact the applicant was unharmed, engaged with the authorities during entry and exit procedures, and remained in the community for extended periods during his return visits, concluding that this indicates his claims that he would be persecuted or killed by terrorists in Iraq are implausible. However whether his claims were implausible is not the test when considering whether the grounds for cancellation are made out: but whether ‘no incorrect answers are given or provided’ (in relation to his protection visa application). Insofar as his returns raise some questions about the veracity of his claims at the time, on the evidence before it the Tribunal does not consider such doubts lead to a conclusion that his claims were untrue.
The delegate also found the applicant’s claims in his protection visa application about the Iraqi authorities being unable to protect him because they are too weak to protect themselves, because he suspects the terrorist group may be part of the government and they have a presence everywhere in Iraq, were incorrect. That is because he voluntarily returned to Iraq on three occasions – the first time within four months of visa grant and two years since he claimed the incident which led to his departure – and he remained there for 388 days. On this last point the Tribunal notes the applicant spent 388 days in total covering three separate visits, not in one trip. Nonetheless, as noted earlier, the fact the applicant went unnoticed and had no issues when he came in contact with the authorities – even if influenced by militia and/or terrorist groups – does not necessarily mean he provided incorrect information at the visa application stage about terrorist groups being part of the government and having a presence everywhere in Iraq at that time. He did not claim they were in complete control of the authorities, more that they had influenced the authorities.
The Tribunal notes at hearing the applicant recounted his experiences in Iraq that led to his departure from his country. His oral evidence was reasonably detailed, straightforward and generally consistent with his claims before the Department at the protection visa application stage. There was an inconsistency in his evidence about the number of people the applicant claims to have witnessed planting (or attempting to plant) bombs [in] April 2010 between his 2010 statutory declaration (four) compared to his statement provided in response to the NOICC (one). Whilst of some concern, there may be reasons for such an inconsistency, including the passage of time, or an interpreting error given at hearing he referred to ‘them’, which was consistent with his original claims. An otherwise reasonably consistent account of this incident (and related events) has been provided.
Furthermore, the Tribunal accepts the applicant had reasonably compelling reasons for his returns each time, even if it considers he may have exaggerated the emergency nature of these visits to a certain extent. It became apparent to the Tribunal that he was desperate to try and ensure his wife and children were safe, and to help facilitate their move to Australia, trying to navigate Australian government policy and legal changes. He disclosed his returns to the Australian authorities and according to the representative, sought permission. Unfortunately his fear for his family’s safety in Iraq was borne out with the murder of his wife there in October 2014. It remains unclear who was behind the killing and whether it was at all related to the applicant. Nonetheless her murder shows the insecure security situation in Iraq at the time, which can result in violence. The Tribunal accepts the applicant’s claims that he was terrified to return to Iraq after his wife’s death, even though he wanted to see his grieving children (who currently reside with his parents).
Taking into account these considerations, the Tribunal is not satisfied as per the requirement in Zhao – that is a real state of satisfaction reached on a consideration of the available material before it – that the applicant’s return to Iraq on three occasions totalling 388 days from 2012 to 2014 meant that he provided incorrect information about his adverse profile, past experiences and future fears of persecution at the time of his protection visa application. The Tribunal is not satisfied that the grounds for cancellation are made out in this instance if relying solely on the alleged non-compliance being his three return trips to Iraq.
CONCLUSION
Considering the evidence before it, and for the reasons above, the Tribunal is not satisfied that the grounds for cancellation are made out in this instance.
For these reasons, 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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Nicole Burns
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.
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