1834215 (Refugee)

[2019] AATA 5772

1834215 (Refugee) [2019] AATA 5772 (7 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834215

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Michael Hawkins

DATE:7 May 2019

PLACE OF DECISION:  Brisbane

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 07 May 2019 at 8:00am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – religion – imputed political opinion – Al Mahdi Army– returned to Iraq twice – applicant returned to Iraq to arrange medical assistance for daughter – did not provide incorrect answers in protection application – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109 ,119
Migration Regulations 1994 (Cth)

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
McDonald v D-G of Social Security (1984) 1 FCR 354
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Sullivan v CASA (2014) 226 FCR 555
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
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 the basis that the applicant provided incorrect information when answering questions on Form 866 – his application for a Protection visa. 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 sought a review of the delegate’s decision before the Tribunal (differently constituted) (“the first Tribunal”). The Tribunal affirmed the decision to cancel the applicant’s visa on 20 July 2018.

4. The applicant appealed the decision of the first Tribunal to the Federal Circuit Court of Australia (“the FCCA”).

5. The FCCA, with the consent of the Minister for Home Affairs found that the decision of the first Tribunal was affected by jurisdictional error for failure to consider cogent evidentiary material that was of central importance to the first Tribunal’s ultimate finding.

6. The applicant appeared before the Tribunal on 3 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   BACKGROUND

9. The applicant is a citizen of Iraq and an Australian permanent resident. He arrived in Australia at Christmas Island as an irregular maritime arrival [in] April 2011. On 15 August 2012 he lodged an application for a protection visa. He was granted a permanent protection visa on 10 September 2012.

10. The applicant has subsequently applied for a partner visa for his wife and family which is presently on hold. His Australian citizenship has been cancelled and a review of that decision is also in the AAT. The applicant also applied for a medical treatment visa for his daughter on 20 September 2012.  That application was refused.

11. In his protection visa application the applicant claimed that he was seeking protection in Australia so that he did not have to go back to Iraq and referred the delegate to his statutory declaration to provide a more complete answer to that question (question 41 of Part C of the Form 866) along with answers to questions 42, 43 and 44 of Part C of the Form 866 which asked why he left his country, what harm he will suffer and the nature of his fears of returning.

12. The applicant claimed that the basis of his protection claim is that he had been responsible for arranging music and dancing for [an activity]. He claims that an Iraqi militia – the Al Mahdi Army – were attempting to track him down because of his role in arranging these [activities] as those activities were not true to Islam. He claims he spoke to the men that forced themselves into the [activity] and as a result he developed a fear that they would retaliate against him. He was beaten and fled his home.

13. The applicant claimed that as a result he left his home town and moved his wife and children to her parent’s home in [District 1] which was [close to] Nasiriyah. He himself moved to a place called [named location], [near] Nasiriyah and stayed with his [Uncle]. He claims that after 3 days his wife returned to their home because she had to prepare the children for school. The applicant claimed that his wife told him that the men who had forced entry to the [activity] went to the house and asked his wife about the applicant’s whereabouts. The applicant claimed that his wife told them that he was not home but they searched the house and told his wife that they would catch him wherever he goes.

14. In his protection visa application the applicant claimed that he could not return to Iraq because he faced a real chance of being killed by members of the Al Mahdi army for reasons of religion and imputed political opinion. He claimed that he was responsible for organising singers and dancers at [the activity] and that this was against Islamic religious rules and teachings of the Koran according to members of the Al Mahdi army.

15. The applicant claimed that as a result of having breached Islamic religious law he is being targeted for breaching Islamic rules. He claims that he objects to how this organisation forces their oppressive political and religious rules upon people.

    Travel to Iraq

16. The applicant was granted a protection visa on the basis of the above claims on 10 September 2012. Four months later, [in] January 2013, the applicant departed Australia and travelled to Iraq, returning 3 months later [in] April 2013. He subsequently departed Australia again [in] February 2014 for travel to Iraq, returning [in] April 2014.

17. The delegate wrote to the applicant informing him of the department’s intention to consider cancelling his protection visa on the basis that he voluntarily entered and remain in Iraq on two separate occasions thus belying his claims of harm and persecution should he have to return to Iraq and not be granted Australia’s protection. The delegate found that the applicant did not believe that his life was under threat in the context of the claims that he made in his protection visa application. The delegate found that the applicant’s claims on his Protection visa application Form 866, questions 41-45 inclusive, were therefore incorrect.

    NOICC

18. In response to the delegate’s letter to the applicant informing him of the department’s intention to cancel his visa, the applicant made the following responses:

    a.The applicant travelled to Basra and Kurdistan, not to his hometown, on the two occasions he returned to Iraq. The applicant claims there are no conflicts or extremists such as Al-Mahdi in the Kurdistan region and hence he was safe. He claims that he incurred costs and inconvenience to arrange travel for his wife and family to travel to Kurdistan.

    b.The applicant travelled to Iraq to attend to his daughter’s medical condition and there were compelling, urgent and compassionate reasons for his visit.

    c.The current situation in Iraq is significantly worse than at the time of the applicant’s visit in 2014 and he has not returned since.

    d.There is no instance of non-compliance by the applicant.

    Delegate’s decision to cancel

19. On 22 June 2017 the delegate wrote to the applicant advising him that his visa had been cancelled.

20. The delegate did not accept that the applicant and his family travelled to Basra or Kurdistan. The applicant provided no evidence, such as airline tickets, proof of accommodation, photographs or any other documentary evidence that he travelled to these areas rather than his hometown as he claims. The delegate found that country information indicated there were significant restrictions on non-Kurdish Iraqi citizens gaining entry and residency for any period of time in Kurdistan.

21. The delegate also did not accept that his motivation to visit Iraq was to arrange his daughter’s visa application as this could have been done remotely. The delegate found that the applicant simply wanted to fulfil his natural and understandable desire to see his family.

22. The delegate found that the applicant did not have to travel to Kurdish controlled Iraq to arrange services with the Red Cross as he has not submitted any evidence of his interaction with the Red Cross.

23. The delegate found that the applicant’s return to Iraq shortly after his protection visa was granted indicates that he did not have the adverse profile he claimed in the protection visa application.

24. The delegate did not accept that the applicant travelled to Kurdistan but travelled to Basra and returned to his home town of Al Nasereyyah. The delegate found that this was inconsistent with his claims that he was at risk of persecution and would not be safe in any part of Iraq.

25. The delegate found that the applicant did not have an adverse profile in Iraq at the time of his Protection visa application and that he is not of interest to the specific agents he stated in his application.

    Applicant’s statement to the Tribunal dated 23 September 2017

26. The applicant claims that he has at all times provided correct information. When he travelled to Australia for the purpose of seeking protection he left behind his wife and [children] in Al Nasereyyeh.

27. When he was released from detention in March 2012 he got to know someone at the Australian Red Cross and told that person about his daughter’s [health condition]. This person put him in touch with an organisation that has agreed to perform [an operation] on his daughter and he applied for a medical visa for her to come to Australia just 10 days after he received his permanent protection visa.

28. He returned to Iraq in January 2013 and arrived in Basra and did not travel to his home town of Al Nasereyyeh given his fear of persecution from Al-Mahdi army or other extremist groups. From Basra the whole family travelled to Kurdistan so he could take his daughter to the Red Cross to support her medical visa application. He claims that there was no-one else who could take his daughter to the Red Cross.

29. The applicant claims that Kurdistan is safe and there are no extremist groups there so he could spend time with his family. His family returned to Al Nasereyyeh and he returned to Australia.

30. Equally, when the applicant returned to Iraq in February 2014 he flew to Basra and did not go to his hometown of Al Nasereyyeh because of his continued fear of persecution. Again, he and his family went to Kurdistan. During this second visit the applicant tried to arrange a medical procedure for his daughter in [Country 1] but it proved too expensive. He then returned to Australia and his wife and children returned to Al Nasereyyeh.

31. The applicant claims that it is not possible for himself and his family to relocate to Kurdistan permanently.

32. Along with his statement, the applicant provided the following documents:

    a.A letter from [a] consultant psychiatrist, stating that the applicant has been suffering from severe depression.

    b.Copies of letters to the Red Cross from the applicant and/or his representative seeking documents to support the applicant’s claims.

    c.An email exchange with Ms [A] from [a named charity] indicating that Ms [A] did not have any contact with the Red Cross in Kurdistan but confirming that the applicant’s daughter has been referred to their foundation.

    d.A copy of the delegate’s decision refusing the applicant’s daughter’s Medical Treatment Visa.

    e.Photographs, medical records and x-rays of the applicant’s daughter’s [health condition].

    f.Authority signed by the applicant, opting out of a  [class] action.

    g.Submission from the applicant’s representative dated 23 September 2017.

    h.Statement of support from a friend of the applicant attesting to his good character and trips to Iraq.

    i.Copy of the applicant’s statement to the department dated 8 March 2017.

    j.Copy of the applicant’s advisers submission dated 8 March 2017.

    k.Submission from the applicant’s representative dated 15 October 2017 (post hearing submission).

    l.Submission from the applicant’s representative dated 22 October 2017 which included English translations of documents attached to the post hearing submission and copies of both previous submissions from the applicant’s representative dated 23 September 2017 and 12 October 2017.

    m.Submission from the applicant’s representative dated 26 April 2019.

    n.Declaration by the applicant dated 26 April 2019.

    CONSIDERATION OF CLAIMS AND EVIDENCE

33. 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.

34. 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.

35. 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?

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

    a.The applicant claimed he could not return to Iraq because he would be killed by members of the Al Mahdi army for reasons of his religion and imputed political opinion.

37. The delegate found that the applicant was able to return to Iraq on two occasions for a total period of 4 months without experiencing any harm or coming to the attention of those who sought to persecute him. Indeed he first returned to Iraq within a few months of receiving his protection visa indicating putting in doubt the totality of the claims he put to the Minister.

    Evidence put to the first Tribunal

38. At the first Tribunal’s hearing the applicant claimed that he did not remain in Iraq but only transited Basra on his way to Kurdistan where he and his family stayed. He claims that it is relatively safe for him in Kurdistan and he never returned to Al Nasereeyeh.

39. The applicant told the first Tribunal that he travelled to Kurdistan to see his family and to try and arrange for medical treatment one of his daughters who has a [health condition].  He claimed that on the first occasion he returned he and his family travelled together to Kurdistan by car. Not a bus or a van, but a normal sedan sized car is what he told the first Tribunal at the hearing. Asked how nine people managed to fit in a sedan the applicant merely stated that they fit. The Tribunal put to the applicant that it was a long drive from Basra to Irbil (around 900-1,000km).

40. Despite the length of this journey through a volatile area, the applicant was unable to give details about the drive, and did not disclose any particular incidents that happened along the way. Indeed his description of the long drive through Iraq seemed unremarkable. The applicant was not able to provide the Tribunal with any details about the border crossing, for example, including what paperwork he had to provide, whether he was required to have a visa or whether he had to provide an explanation to the border guards as to his reasons for travel. The first Tribunal put to him the country information provided by the Australian Department of Foreign Affairs which indicates that it would be very difficult for him and his family to have entered Kurdistan and having done so, to return to Southern Iraq. He told the first Tribunal in his post hearing submission that he was not required to apply for registration or residency because he was only a visitor. He claims that the first Tribunal’s information in relation to these requirements had changed after his travels in 2013 and 2014.

41. In all of his statements, submissions, oral and documentary evidence the applicant refers to his visits to “Kurdistan” or the “region of Kurdistan”. He makes only one reference to Erdil but otherwise was not specific about where he stayed, where he visited or what he and his family did in Kurdistan for the four months in total that the applicant claims that they stayed there.

42. The applicant told the first Tribunal during the hearing that he stayed in a hotel called the [Hotel 1], however in his post hearing submission he states that his wife had subsequently found a business card for [Hotel 2] and an untranslated document he claims is a receipt for their stay in that hotel. He claims that this is where he stayed when he was in Kurdistan. The first Tribunal stated that the applicant did not subsequently provide a translation of the receipt to the first Tribunal.

43. The first Tribunal did not accept that the applicant’s account of his travel to Kurdistan is truthful. The first Tribunal was not satisfied the evidence provided by the applicant to support this claim is persuasive; indeed it is vague and lacking in relevant detail. Equally, however, there was no evidence suggesting that the applicant went to his home town of Al Nasereeyeh. However the evidence does show that the applicant travelled to Iraq on two occasions. It is entirely plausible that the applicant remained elsewhere in Iraq with his family during his two visits. The first Tribunal also accepted that the applicant travelled to Iraq in order to make arrangements for his daughter to travel to either Australia or [Country 1] for medical treatment. The first Tribunal noted that the applicant is strongly motivated to assist his daughter.

44. The first Tribunal noted the fact that the applicant travelled to Iraq on two occasions to be with his family and he was unharmed and of no interest to the Al Mahdi Army. The first Tribunal put to the applicant during the hearing that the Al Mahdi Army was disbanded in 2008 and he claimed that it had become an extreme group known as “the Group of Virtue and Prevention of Vice” which enforced Islamic moral codes.

45. The applicant’s account of his role in organising the music for the [activity] and the alleged attack on him by extremists because he made those arrangements was implausible, vague and lacking in relevant detail. The fact that his wife and children could return their home, if indeed they had to depart, after only three days of the alleged attack seems implausible. If this extremist group had any interest in the applicant it seems to the Tribunal that they would have taken an interest in his family. Again, despite the applicant’s claims that his family were visited by this group, they were able to remain in their home without persecution or experiencing any harm. The first Tribunal noted that the applicant claimed that a male relative who lived approximately 20 kilometres away regularly visited his wife and family to ensure their safety.

1. The applicant was provided with every opportunity to respond to the first Tribunal’s concerns in regard to his evidence and indeed, provided a number of submissions and documents after the first Tribunal’s hearing. The Tribunal stated it had considered all of this evidence, including the not insubstantial oral submission made by the applicant’s adviser during the hearing and his written submission post the hearing.

2. The first Tribunal was not satisfied that the Al Mahdi Army, the Group of Virtue and Prevention of Vice, or any other group or individual has an interest in the applicant such that he would be persecuted or harmed in any way if he returned to Iraq.

3. The first Tribunal found the applicant not to be a witness of truth in relation to his reasons for departing Iraq, his alleged travel to Kurdistan or his alleged persecution. The only evidence the first Tribunal accepted as truthful was the evidence he had given in relation to his daughter’s medical condition and his strong motivation to obtain medical treatment for her either in [Country 1] or Australia.

4. On the basis of the information before it, the first Tribunal was satisfied that the applicant did not comply with paragraph 101(b) of the Act because he did not fill in his application form in such a way that no incorrect answers were given or provided as particularised in the s.107 notice.

   Hearing

5. The Tribunal welcomed the applicant and his Representative to the Tribunal.

6. The Tribunal asked the applicant where he was presently living. The applicant replied that he was living in Brisbane. Asked whether he was working, he replied that he was not working at present. He had recently been working as [an occupation]. He advised that his contract had recently expired.

7. The Tribunal asked the applicant about his family, noting that he had a wife and [children]. The applicant replied that they were all presently living in Iraq. The Tribunal inquired as to how his family were being supported during his absence in Australia. The applicant replied that his wife’s [uncle] supports the family. The Tribunal inquired as to whether this was a cultural aspect of being an Iraqi, that family members look after the family members of absentees. He said that it was.

8. The Tribunal inquired about other family members of the applicant. The applicant stated that his father had passed away, that his mother was living in Iraq and that he had [a number of siblings], one living in [named country], one living in [named country] and the other living in Iraq.

9. The Tribunal noted the applicant’s claims that he had been involved in the organisation of music and dancing [for] a [relative]. [Details deleted].

10. The Tribunal inquired further about the applicant’s protection claims, inquiring how the extremists knew about the [activity] and how were they able to access the [event] to understand that there was singing and dancing taking place. The applicant replied that the extremists were simply circulating around the village, looking for things that displeased them. They would pick on girls who weren’t properly covered or couples who were holding hands. In his case, the [event] was a public event which brought the neighbourhood together and as such, the fact of music would have been readily apparent. The applicant stated that he did not anticipate the response that it elicited.

11. The Tribunal asked after the applicant’s daughter. The applicant replied that his daughter is at home and that she doesn’t leave the house. In fact, it is worse than that for when visitors attend the house, she hides from them.

12. The Tribunal asked the applicant about the Medical Visa that he had applied for for the benefit of his daughter. The Tribunal noted that the Visa Application hadn’t been successful. It inquired as to whether the applicant had appealed against that decision. The applicant replied that he had not appealed. He said the decision in that case upset him so much that he was numb. In any event, he said that he applied for the Family Visa which, if successful, would supersede the need for the Medical Visa. The Tribunal asked the applicant about the process of the Family Visa. The Representative advised that the Family Visa Application had been put on hold pending the outcome of the applicant’s cancellation.

13. The Tribunal advised the Representative that it believed that the issues were fairly clearly defined. It stated that if it was persuaded that the applicant had actually returned to Kurdistan, then it was likely to accept the applicant’s claim that he believed he had returned to a part of Iraq wherein his fear of persecution had been minimised. The Tribunal noted that the corollary to that, of course, was that if it was not satisfied that he had returned to Kurdistan, then it was likely to uphold the decision of the Delegate and cancel the Visa. The Tribunal asked the Representative whether it was satisfied with the Tribunal’s approach. The Representative agreed that that was the central issue.

14. The Representative sought to confirm the receipt by the Tribunal of three key pieces of evidence, including the translated receipt or acknowledgement of the applicant’s accommodation in Kurdistan. The Tribunal confirmed that it had those documents. It confirmed that it had the Representative’s submission dated 26 April 2019, together with all the documents and submissions that were referred to therein.

15. The Tribunal confirmed that it needs to be satisfied that the applicant is telling the truth about his two return visits to Iraq.

16. The Tribunal asked the applicant why he had returned to Basra Airport instead of flying directly into Erbil Airport. The applicant replied that he needed to meet his family and accompany them to Kurdistan. He stated that it would not have been possible for a family of females to make that trip alone, his wife and daughters do not have the freedom to drive. The Tribunal noted that a friend of his drove the family from their village to Basra Airport to meet him. The Tribunal inquired as to what distance that was. The applicant replied that it was 280 kilometres.

17. The Tribunal inquired why he did not fly into Baghdad Airport, as it was closer to Kurdistan. The applicant agreed that that was the case but stated that it was 450 to 480 kilometres from the family home and as he was relying on somebody doing that favour for free, he felt that driving them to Baghdad was too much to ask.

18. The Tribunal confirmed that the whole family went to Kurdistan, being husband, wife and [children]. The applicant confirmed that was the case.

19. The Tribunal inquired as to the type of vehicle that the applicant rented to get to Kurdistan. He replied that it was a [car] and that it came with a driver. He quoted a brand of car which was a local brand. The applicant confirmed that it was the “[brand]” of Iraq.

20. The Tribunal noted that the applicant had advised the first Tribunal that it was just an ordinary car that he had rented to take to Kurdistan. He had told the first Tribunal that it was not a minibus. The applicant confirmed that it was just a car that had [a number of] seats. He agreed that it wasn’t a bus or a minibus or a truck and seemed quite perplexed as to the question.

21. The Tribunal inquired as to how long the journey to Kurdistan took. He said it was a one day trip. He stated that nothing remarkable happened along the way and that they had one long stopover at a restaurant for a meal and other shorter breaks.

22. The Tribunal noted that the driver took them all the way to Kurdistan and inquired as to why he could not have taken the family on his own and had the family meet him in Kurdistan. The applicant replied that that would not have been safe to do so and that he wanted to take his family himself to Kurdistan. He stated that he flew into Basra Airport which was 280 kilometres from his village, met his family, rented a car and departed straight away.

23. The Tribunal noted that the applicant flew out of Australia and travelled through [another country] to arrive in Basra. It asked the applicant what passport he had used. The applicant replied that he used his Australian travel document on the 2013 trip. He stated that he used his Iraqi passport for his second trip. The Tribunal asked the applicant why he didn’t use his Iraqi passport for his first trip. He replied that he didn’t have his Iraqi passport for that first trip. He said he collected his passport when he was in Iraq in 2013 and was able to use it when he went back in 2014.

24. The Tribunal noted the Iraqi passport, a copy of which was on the Department file. It observed that the passport was issued in 2008 and expired in 2016.

25. The Tribunal discussed with the applicant a concern that it had relating to his Iraqi passport. The Tribunal noted that the applicant had stated in his Protection Visa Application that he had handed his passport to the people smugglers and that that was why he didn’t have identity documents when he arrived in Australia in 2011.

26. The applicant agreed that was the case and stated that he had two passports.

27. The Tribunal inquired as to how the applicant could have two passports. The applicant replied that he had one passport that had been issued by the old regime and a second passport that was issued by the new regime in 2008. He said he travelled to Australia in 2011 using his older passport, leaving his newer passport behind.

28. The Tribunal noted Country Information from the 2015 DFAT Report. It stated that Iraq had three series of passports, being series A, G and S. The S series passports were issued between 2003 and 2006 and were not seen to be a secure document. The G series passports were issued from 2007. The Tribunal noted that the applicant’s Iraqi passport was a G series passport.

29. The Tribunal asked the applicant about his experiences at the border between Iraq and Kurdistan as he attempted to cross it.

30. The applicant replied, in relation to the 2013 visit, that he simply drove to the border, showed his Australian travel document and he drove through.

31. In 2014, the applicant said the same thing happened. He drove up to the border, showed his travel documents which this time included his Iraqi passport and his Australian travel document and he was permitted entry.

32. The Tribunal discussed the 2013 DFAT Report with the applicant, noting that the border from Iraq to Kurdistan was closed at some time during 2013 and according to the 2015 DFAT report, was still closed at that time. It therefore inquired how he had managed to get through the border in 2014.

33. The applicant explained that whilst the border is closed, it is not completely closed as it still allows tradesmen, for example, to cross the border daily. He said in his instance, he presented his travel documents and the health records of his daughter, explaining that he was travelling to Kurdistan to seek medical help. The applicant stated that that was sufficient for him to be allowed through on humanitarian grounds.

34. The Tribunal asked the applicant why he travelled to Kurdistan. The applicant replied that he went to Kurdistan, taking his family with him, because it was safe and because of the health assistance he was seeking for his daughter.

35. The Tribunal inquired as to how his daughter’s health situation fitted in.

36. The applicant explained that he had been dealing with the Red Cross in Australia for some time. He said that the Red Cross had organised for his daughter to receive surgical assistance in Australia if she was able to get to Australia. He went on to explain that during his numerous conversations with the Red Cross, one lady, a [Ms A], a Case Worker who had been assigned to him, advised that she was aware of a contact who was travelling in Iraq and who might be able to assist by bringing the applicant’s daughter back with him when he returned to Australia. The Tribunal noted the many pages of correspondence between the Red Cross and the applicant, none of which had been kept by the applicant, but which had been secured by the applicant’s Representative during the course of the Visa cancellation process. The Tribunal noted in particular the Representative’s many attempts to seek information relating to a person called [name deleted] and his presence in Kurdistan. The Tribunal also noted an exchange of correspondence included as Exhibit “P” to the Representative’s submission of 23 September 2017 which noted that Ms [A’s] contact had been in Kurdistan, but was returning to Australia [in] October 2012. The Tribunal noted that the applicant was in Kurdistan in January 2013.

37. The Tribunal put to the applicant that he must have known that the Red Cross contact was no longer in [City 2]. Further, the Tribunal put to the applicant that he had stated that he was travelling to [City 2] in order to organise or arrange for his daughter to come to Australia. The Tribunal noted that the applicant had already applied for the Medical Visa in November of 2012 whilst he was in Australia. It noted then that the applicant had already sought to make arrangements for his daughter to travel to Australia and had done so within Australia, without the need to travel to Kurdistan.

38. The Tribunal noted the calm way in which the applicant responded to the Tribunal’s suggestions. He stated that he had had a long engagement with the Red Cross, over the course of 12 months. He stated that Ms [A] had stated to him on a number of occasions that she had a contact who she believed was in Iraq and who might be able to assist by accompanying his daughter back to Australia. She had stated that otherwise, she would need to travel alone but that the airlines might assist by having contact points at each stop. The applicant went on to say that he was not aware of the communication from Ms [A] that stated that her contact was already back in Australia.

39. At this juncture, the Representative invited the Tribunal to read the correspondence carefully as it did not say that that had been communicated to the applicant, rather an inquiry had been made of the applicant’s wife who stated that the daughter was ready to go, but on inquiry did not have a Visa and secondly, she had communicated to a friend of the applicant that the daughter could not travel without a Visa. None of the correspondence actually suggested that the applicant could have known that the contact was already back in Australia.

40. The applicant went on. He stated that he had made an application for a visa in Australia for his daughter to come to Australia on medical grounds. He understood that that visa would take about three months to process. He was aware that Ms [A] had a contact in Kurdistan and hoped that he could make that contact himself when he was in Kurdistan. It was his hope that he would receive word of the grant of the Medical Visa and make contact with the Red Cross contact whilst the family were in Kurdistan and that he could send his daughter back to Australia from there.

41. The applicant admitted that he was somewhat preoccupied by his daughter’s health as her condition was such that it was deteriorating and causing her new [problems], not to mention the enormous social impact it was having upon her.

42. The applicant then went on to confirm that shortly after he arrived in Kurdistan, he checked in by email and learned that the contact had left Kurdistan and was now in [another country]. He also learned that the Medical Visa Application had been rejected.

43. The Tribunal confirmed that those dates appeared to be accurate, noting that the applicant left Australia [in] January 2013 and that the decision of the Department in relation to the Medical Visa was communicated by email on 17 January 2013.

44. The Tribunal then discussed with the applicant his accommodation arrangements in Kurdistan.

45. The Representative again interjected, ensuring that the Tribunal had before it the translated acknowledgement of the applicant’s accommodation at [Hotel 2] and Motel.

46. The Tribunal assured the Representative that it did have it and that it was about to consider it in discussion with the applicant.

47. The Tribunal noted that the applicant had told the first Tribunal that the family had stayed in a hotel called [Hotel 1] and further noted that it was only in the post-hearing submission to the first Tribunal hearing that [Hotel 2] was identified. The applicant confirmed that was correct and that he was mistaken. The Representative invited the Tribunal to consider the similarity of names.

48. The Tribunal went on to discuss that it had a number of concerns about the document purporting to be the receipt or acknowledgement of the accommodation arrangements in Kurdistan.

49. First of all, the Tribunal noted that the letter did not have an address on it. It identified the name of the hotel but offered no street address. The Tribunal acknowledged that it had a phone number. The Tribunal thought it strange that a letterhead would not have an address on it.

50. The Tribunal invited the applicant to respond. The applicant replied that it had a phone number on it and that the Tribunal should ring the number and confirm the existence of the hotel and the authenticity of the letter.

51. At this moment, the Interpreter asked the Tribunal whether he might make a comment in relation to the absence of an address. The Tribunal, with the consent of the Representative, invited the Interpreter to comment. The Interpreter noted that it was irregular for an Interpreter to comment and the Tribunal agreed. The Tribunal stated that it would consider the weight to be put on whatever the Interpreter said. The Interpreter stated that in addition to interpreting, he was also a [particular occupation]. He stated that he was familiar with the address identification system used in Iraq. He stated that Iraq was not like the rest of the world. They do not use street names, preferring to use digits only. He used the example of Ankara, where he knows that despite the size of the city, there is only one named street. He said that no other streets had names. He said most other streets are referenced by their proximity to the one named street. He said invariably, locations are identified by reference to a landmark.

52. The applicant agreed with this, stating that when he is sending a DHL package to his family, he addresses it only by reference to the city and the phone number of the family. In order for the family to collect the parcel, the post office or DHL office rings the phone number and the family come to collect it.

53. The Tribunal thanked the Interpreter for his assistance.

54. The Tribunal went on and further commented that notwithstanding that assistance, it had some other concerns.

100.   It also noted its overriding concern of Country Information referenced in the DFAT Report that stated that fraudulent documents are commonly and cheaply available. The DFAT Report states that genuine documents obtained through fraudulent means are also common, mostly obtained by paying bribes to officials.

101.   The applicant again implored the Tribunal to ring the hotel itself.

102.   The Tribunal noted that the letter was addressed to [a] Department. The Tribunal stated that it was puzzled by this as it would appear that the letter, by its date, was as a response to the Representative’s direct inquiry. The Representative replied that whilst the letter was in response to his specific request for a confirmation document, it is likely that the hotel provided a copy of a document prepared for the  [Department], noting that the hotel was probably required to provide records of who was staying in its hotel.

103.   The Tribunal also expressed its concern as to why the document identified the applicant as being of the “Al Nasereeyeh” people. The Representative again responded by stating that given the applicant was travelling with [numerous] women, he, as the leader of the group or family, would be the person identified on the document.

104.   The Representative asked to make a few short closing submissions.

105.   Again, the Representative requested the Tribunal to ring the phone number of the hotel on the acknowledgement document and confirm the authenticity of the document.

106.   Secondly, he stated that the applicant knows only what he knows, he stated he was not privy to the other discussions between the Red Cross and his wife and his friend, therefore, he could not have known about the movements of the contact and when he was returning to Australia.

107.   Thirdly, he implored the Tribunal to consider Exhibit “P” which corroborates the applicant’s evidence throughout the course of the cancellation process as to the existence of his involvement with the Red Cross and a contact person who would bring his daughter to Australia.

108.   The Representative also asked the Tribunal to note that the acknowledgement contained the official stamp of the hotel. He invited the Tribunal to note the stamp and to note that the stamp identified the hotel and its phone number.

109.   The Representative noted the reference letters from charities with whom the applicant has been doing work.

110.   And finally, the Representative implored the Tribunal to note that the applicant has not returned to Iraq after his final visit there in 2014. The Representative stated that the applicant knew it was dangerous for him to return to Iraq and consequently he has not done so since 2014, despite him having a valid Iraqi passport.

111.   Following the hearing, the Tribunal did take the unusual step of ringing the number on the acknowledgement. The Tribunal was able to establish that it was indeed the number of [Hotel 2].

112.   The Tribunal is aware of the applicant’s Department interview and Tribunal hearing history. He has persuaded two Department Officers that his claims for protection are genuine and that his fear of persecution in Iraq was well-founded and accordingly, was granted a Protection Visa.

113.   The Tribunal noted that some three years after his two visits to Iraq in 2013 and 2014, the applicant received a Notice of Intention to Cancel his Visa. In responding to the Department’s Notice, he was unable to persuade the Department that his return visits to Iraq were not inconsistent with his protection claims. On attending a hearing at the first Tribunal in seeking a review of the Department’s decision to cancel his Visa, he was similarly unable to persuade the Tribunal that he had in fact provided correct information to the Department in his Protection Visa Application. The Tribunal has noted the very considered observations and findings of the first Tribunal. The Tribunal has also considered the decision of the Federal Circuit Court of Australia which noted that the first Tribunal had fallen into jurisdictional error by omitting to consider a translation of a document that had previously been submitted to it. The translation had been provided to the Tribunal post-hearing. 

114.   The Tribunal apologised to the applicant for what appeared to it to be a very honest and accidental oversight in not considering that post-hearing submission.

115.   The Tribunal makes these observations about the applicant’s previous appearances before interviews and hearings as it is genuinely perplexed by the applicant’s appearance before the first Tribunal. It would appear apparent that his appearance before the Delegate interviews and first Tribunal hearing were of remarkable contrast. It notes this particularly as this Tribunal found the applicant to be calm and measured in all of his responses, forthright and willing to assist the Tribunal where he could. He was well represented and the Tribunal can see from the plethora of submissions and correspondence that the Representative has invested a considerable amount of energy in chasing evidence to corroborate his client’s claims.

116.   The Tribunal discussed with the applicant a number of concerns that it had about his case, including issues that may have gone directly to the applicant’s credibility. Yet, the applicant was able to provide plausible explanations in all instances. The matter of fact way in which he dealt with the Tribunal’s concerns about the use of passports and an apparent inconsistency in what he told the first Tribunal and this Tribunal about the mode of transportation used to take the family to Kurdistan satisfied the Tribunal that his responses were truthful.

117.   Accordingly, the Tribunal accepts the applicant’s explanations and evidence and is satisfied that as claimed he has managed his return visits to Iraq in such a way as to mitigate against risk to himself and his family and to minimise his fear of persecution of being in Iraq.

118.   Apart from the applicant’s returns to Iraq in 2013 and 2014, there is no other evidence before the Tribunal to raise doubts about the applicant’s central claims. The Tribunal is not reviewing a protection visa application refusal and the Tribunal appreciates that it is reviewing the cancellation of a protection visa which has been granted on certain grounds and the only undermining issue relates to the applicant’s returns to Iraq.

119.   The concept of onus and standard of proof are not generally applicable in the context of administrative decision making[1]. The Tribunal refers to judicial guidance in relation to the cancellation of a visa and in particular the state of satisfaction required.  Although the decision of Zhao v MIMA[2] relates to a cancellation pursuant to s.119 of the Act, its principles are applicable to a cancellation pursuant to s.109. Relevantly, the Court held:

[1] 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 29.

[2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000).

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 cause 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.[3]

[3] Ibid, at [25] and [32].

120.   The Tribunal considers the cancellation of a protection visa to be serious and significant, requiring a state or level of satisfaction reached subsequent to the proper consideration and critical evaluation of probative material. In Sullivan v CASA[4], the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences, the Tribunal “would express greater caution in evaluating the factual foundation for the decision to be reached”[5].

[4] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

[5] At [120].

121.   In that decision, the Court referred to Briginshaw v Briginshaw[6], where his Honour Dixon held[7] ‘… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…”

[6] Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362.

[7] At [362].

122.   The delegate’s decision to cancel the applicant’s protection visa is based on the fact that the applicant had returned to Iraq on two occasions, contrary to the protection claims he had made that he could not return. The delegate considered that returning to Iraq undermined the applicant’s claims to such a degree to mean that the applicant had provided incorrect answers when he applied for the protection visa.

123.   There is no dispute that the applicant subsequent to being granted the protection visa, had returned to Iraq on two occasions, from [January] 2013 to [April] 2013, and from [February] 2014 to [April] 2014. In the application for a protection visa, the applicant claimed that he could not return to Iraq for fear of being killed by members of the Al Mahdi army for reasons of religion and imputed political opinion – for breaching Islamic religious rules and going against the teachings of the Koran.

124.   The Tribunal acknowledges that the returns to Iraq raise doubts about the applicant’s claims as well as his fear of potential harm in case of return. The returns arguably raise questions about the applicant’s subjective fear of harm. The applicant has provided a number of explanations for the returns. The applicant has provided evidence and the Tribunal accepts that the applicant went to Iraq on both occasions primarily to see his family and to make arrangements for medical assistance for his daughter. The Tribunal considers both reasons to be significant and the Tribunal has given them weight. The Tribunal is nevertheless concerned about the applicant’s returns to Iraq. However, the Tribunal found the applicant’s evidence to be consistent and there is no probative evidence before the Tribunal, apart from the returns, to support a finding that the applicant has provided incorrect answers when he applied for the protection visa.

125.   The Tribunal appreciates that returning to the country of claimed persecution raises legitimate questions about the subjective claimed fear of harm as well as the truthfulness of the claims made. However, without more, the Tribunal is not satisfied that the returns mean that the applicant has provided incorrect answers to the relevant questions identified by the delegate. Although the Tribunal has doubts, those doubts are not sufficient for the Tribunal to reach a level of satisfaction to make a finding that the applicant has indeed provided incorrect answers.

126.   In consideration of the evidence as a whole and for the stated reasons, the Tribunal is not satisfied that the applicant’s returns to Iraq in 2013 and 2014 mean that the applicant has provided incorrect answers to questions 41, 42, 43, and 44 of form 866C.

127.   For the stated reasons, the Tribunal has not reached the state of satisfaction required to find that the applicant had provided incorrect answers in the application for a protection visa.    

Conclusion on non-compliance

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

Conclusion

129.   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

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

Michael Hawkins
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.