1921349 (Migration)

[2021] AATA 2873

1921349 (Migration) [2021] AATA 2873 (12 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1921349

MEMBER:Shahyar Roushan

DATE:12 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 12 May 2021 at 10:13am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous protection visa application – claimed adverse profile – Sunni Muslim – family’s connection with American forces – voluntarily returned to Iraq on two separate occasions – non-state actors of persecution – Al Mahdi army – not necessarily inconsistent with the information provided – decision under review set aside

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 33
Migration Act 1958 (Cth), ss 101, 107, 109

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Sullivan v CASA (2014) 226 FCR 555
Zhao v MIMA [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (the Act).

   Background and Evidence

2. The applicant is a [age]-year-old national of Iraq. He arrived in Australia [in] January 2010 as an Irregular Maritime Arrival (IMA).

3. On 23 February 2010, the applicant requested a Refugee Status Assessment (RSA) and, on 20 May 2010, he was recognised as a person to whom Australia has protection obligations. Subsequently, the Minister lifted the bar under s 46A(1) of the Act, enabling the applicant to lodge a Protection visa application on 1 June 2010. The applicant was granted a Protection visa (Subclass 866) on 2 June 2010 on the basis that he has a well-founded fear of persecution in Iraq for reasons of his Sunni religion and imputed pro-Western political opinion.

4. On 15 December 2015, the applicant was granted a Resident Return visa (Subclass 155). On 2 August 2019, a delegate of the Minister cancelled the applicant’s visa under s 109 of the Act, on the basis that he had provided incorrect information in connection with his application for a Protection visa.    

   The information

5. The applicant lodged his Protection visa application under the name [Family Name 1]. In response to question 41 of his Protection visa application Form 866C, the applicant indicated that he is seeking protection in Australia so that he does not have to return to Iraq.

6. In response to questions 42-45 of Form 866C, the applicant replied: ‘Please see RSA statement’.

7. In the statement provided in support of his RSA request, the applicant made the following claims:

   3.       I fear that if I was forced to return to Iraq I would be at risk of being harmed because of

   4.       In July 2007 a fierce battle took place between the Al Mehdi army and the Iraqi police force in my town of [Town 1]. [Town 1] is majority Shia and a small minority of the population is Sunni. The Al Mehdi army were attacking the Italian and American forces in and around my town. During this attack they were successful in killing soldiers from the Italian and American forces. The Al Mehdi army militia was attacking European oil companies and businesses that were based in the area and kidnapping the personal in the foreign owned companies. Humanitarian organisations were attacked as well, even while they were attempting to help the people of [Town 1].

   5.       In 2005/06 the Italian and American armies came to the town to fight the Al Mehdi army.

   6.       The Al Mehdi army was defeated in 2007. Some of the militia leaders were caught and imprisoned in a prison in [Town 1].

   7.       In 2008, some of these leaders were released on the direction of the local provincial government because it was majority Shia. They released the leaders because the majority of the judiciary was also Shia and they supported the aims of the Al Mehdi army.

   8.       The leaders of the Al Mehdi army returned back to [Town 1] and sought out my family for revenge because of my brother [Brother A] who was [an officer] in the Iraqi Police. He was a commander in the forces fighting the Al Mehdi army during the battle of 2007.

   9.       When the government released the Al Medhi army prisoners, their first task was to seek retribution against those who fought against the Al Medhi militia. They wanted revenge for those that died and those that were imprisoned.

   10.      The Al Medhi army identified my family in connection with my brother because they knew us in the town and there were many people who knew my brother had/ought in that battle. Everyone knew we were Sunni Muslim and my brother [Brother B] was a subcontractor with the American forces supplying building materials for the American detention centre [in] Basra. I believe the Detention Centre was also designed to hold terrorists, Al Medhi army militia amongst others. He was also supplying building materials for an American military camp [in] Baghdad

   11.      These things all identified our family as supporters of the American forces and the problems were compounded because we were Sunni Muslims as well.

   12.      [In] April 2008 my brother [Brother A] was travelling in a car with my parents going to Baghdad. The reason they were going to Baghdad was because my mother had a stroke and they had to see a specialist.

   13.      About [number] kilometres outside [Town 1], my parents car was ambushed by gunman. My parents were killed in the car while my brother was taken from the car and shot about twenty five times. This information was given to my family from the coroner who examined the bodies. The indication was that it was a politically motivated killing when so many bullets had been fired at my brothers body. This can be attributed to the fact that he was [an officer] in the Police. Two bullets each were fired at my parents bodies. The killing happened on [named] Road on the way to Baghdad

   14.      The police force at [Town 2] and [Town 1] were informed of the details of the incident and told me that investigations were continuing and they had no idea when it would finish. However this was just an excuse to get rid of me because they had no interest in investigating it. The police force were predominantly Shia and heavily influenced by Judiciary and the Provincial government.

   15.      My remaining family was devastated by the killings and we felt extremely fearful in our town. Threats were often made and we couldn't trust anyone.

   16.      Bullets were fired at our house, threatening telephone calls were made stating that they were going to kill the rest of our family. My wife would receive the calls as she was at home.

   17.      The threats climaxed in December 2008 when I was kidnapped. I was working in my [shop] and I received a visitor who said that his car had broken down and that his family were in the car waiting. I accompanied him to the car to find that the car was full of masked men. Some got out of the car and hit me on the head and beat me up. I told them I would give them what they wanted if they stopped beating me. They told me that they didn't want any money at first, they just wanted to kill me. I told them that I had money that I could give them if they released me.

   18.      They blindfolded me and took me to a deserted small house where I was held for approximately one month while my ransom was being organised. They told me that they wanted my Sunni family out of the town and that my brother [Brother B] was working for the Americans.

   19.      An intermediary was organised where $US30,000 was paid. We sold one of my father's trucks to get the money. I was released and was warned that if I didn't leave [Town 1] I wouldn't be so lucky next time.

   20.      From the time of my release to the time that fled Iraq, My windows were broken, we kept receiving threatening phone calls with bullets being fired at the house. We took our children out of school for their own safety. Our neighbours looked after us by letting us know if there were any strange people in the neighbourhood.

   21.      In August 2009, my [workplace] where I [worked] was burnt to the ground through arson. At about the same time other Sunni owned buildings and Sunni Mosques were also burnt down. The old Imam in the mosque was killed.

   22.      During this time until I left in October 2009 I tried to find ways to move my family. It was then that I decided to save my money to leave [Town 1].

   23.      My family were moved to [Basra] where my wife is staying with her parents.

   24.      I arrived in Australia on Christmas Island [in] January 2010.

   25.      I fear that I would be detained, tortured and killed by the Al Mehdi militia or Shia supporters in the police and judiciary they have already killed my brother and my parents and they have kidnapped me The place of work has been burnt down. The Police, judiciary and local government are all Shia dominated and hostile towards Sunni's. My religious background, our opposition to the Al Medhi militia and family connection to the American forces have made me and my family targets for retribution. The ruling parties believe that I am supporter of the Sunni backed parties and the American forces, thereby making me a target for the shia backed militia and government.

   (sic)

   The notice

8. On 9 January 2017, the applicant was issued with a Notice to Consider Cancellation (NOICC) of his Resident Return visa, on the basis of non-compliance with s 101(b) of the Act. The NOICC stated that the applicant provided incorrect answers to questions 41, 43, 44, and 45 of Form 866C as he had voluntarily returned to Iraq on two separate occasions:

   ·Departing Australia [in] November 2011 and returning [in] February 2012, for a total period of 99 days; and

   ·Departing Australia [in] October 2014 and returning [in] January 2015, for a total period of 83 days.

9. The NOICC stated that Departmental records indicate that he had travelled to Iraq on each occasion, as declared in his incoming and outgoing passenger cards, and stamps on his Australian Titre De Voyages ([document number]) and ([document number]). On his incoming passenger card signed [in] February 2012 the applicant stated that the country in which he spent most time abroad was ‘Irq’. On his incoming passenger card signed [in] January 2015 the applicant stated that he spent most time abroad in ‘South Iraq’.

10. The NOICC further stated that the fact that the applicant voluntarily returned to Iraq on two separate occasions for a cumulative period of almost six months, without any apparent issue or impediment, indicates that he does not hold an adverse profile or face any real harm as claimed in his Protection visa application.

    The applicant’s response

11. On 22 January 2017, the applicant’s representative, [Mr C], provided a response to the NOICC. [Mr C] stated that the applicant had returned to Iraq for ‘compelling reasons’. He was in Iraq [between] November 2011 [and] February 2012 because his first wife, [Ms D] passed away unexpectedly [in] October 2011 from a heart attack. It was submitted that the applicant went to care for his two [children]. During his period of stay, he lived in his father-in-law’s house in Basra, away from his hometown.

12. [Mr C] stated that when the applicant returned to Australia, he began a relationship with [Ms G], who resided in Iraq. Due to marriage traditions in Iraq, [Ms G] asked the applicant to return to Iraq to seek her family’s approval of their relationship. However, the applicant refused to return to Iraq because he feared for his life. It was submitted that [Ms G]’s family threatened the applicant that he ‘will never see her again’ if he did not return to Iraq to marry her. Consequently, the applicant arranged his second trip to Iraq. During this trip, he married [Ms G] and they stayed in a hotel in Baghdad. It was submitted that the applicant returned to his hometown to attend the civil status court, as it was the only court sanctioned to conduct marriages in that province.  

13. The following documents were attached to the response:

    ·Copy and translation of a death certificate issued by the Republic of Iraq, Ministry of Health, in relation to the applicant’s first wife, [Ms D variant]. According to the certificate, the applicant’s first wife died [in] October 2011 in Al-Basra, ‘as a result of a sudden heart attack’. 

    ·Copy and translation of a receipt for a booking at ‘[Hotel 1]’ in [location], Baghdad. The booking was made under the names of the applicant and [Ms G], and lists an arrival date [in] November 2014 and a departure date [in] January 2015.

    ·Copy and translation of a ‘marriage contract’ between the applicant and [Ms G], issued by the Court of Personal Affairs in [Town 1] [in] November 2014.

    International Treaties Obligations Assessment (ITOA)

14. The Department conducted an ITOA in relation to the applicant. On 20 February 2017, the delegate found that Australia does not owe him non-refoulement obligations.

    Further submissions

15. On 14 August 2018, the applicant’s representative made a submission to the Department, stating that the applicant is still at risk of being harmed by the Al Mahdi (or Mehdi) army, he returned to Iraq due to very compelling reasons and that he was ‘very discreet’, spending most of his time in Basra and Baghdad.  The applicant’s return to Iraq does not mean he had provided incorrect information in his Protection visa application.

16. [Mr C] stated that the current head of the provincial council in Dhi Qar Governorate, Rahim Alkhaqani, is a well-known member of the Al Mahdi army. The applicant has been informed by his brother-in-law [that] Mr Alkhaqani has established a special unit to investigate those who had helped the American army [and] that people from the Al Mahdi army had come to [the brother-in-law]’s house to ask about the applicant and his siblings.

17. It was submitted that the applicant is at risk due to the political instability in the South and because of his profile as a Sunni person who helped the coalition forces in Iraq. The submission refers to country information sourced from the 2018 UK Home Office report in relation to the risks faced by ‘perceived collaborators’ in Iraq. [Mr C] also submitted a number of news articles in relation to the 2018 elections in Iraq, the security situation, and protests and instability in Dhi Qar.

18. In a further submission, dated 1 August 2019, the applicant’s representative referred to extracts from a news report, stating that prisons, including [Detention Centre 1], were becoming ‘breeding grounds’ for Jihadists. [Mr C] stated that Jihadists considered their time in [Detention Centre 1] as ‘justification to retaliate against those who are considered to be supportive of coalition forces’. [Mr C] also referred to the EASO Iraq Country of Information Report highlighting tribal clashes and anti-government protests in Dhi Qar in 2018, as well as news reports in relation to rocket attacks on areas ‘housing US interests’. [Mr C] stated that it is clear that militia groups are still targeting individuals or companies that have helped the Coalition forces in Iraq.

    The delegate’s decision

19. On 2 August 2019, a delegate of the Minister cancelled the applicant’s visa on the basis that he had provided incorrect information in his application for a Protection visa, specifically in response to questions 41, 42, 43, 44 and 45 of Form 866C.  The delegate found that the applicant’s claims that he held an adverse profile and was of interest to the Al Mahdi militia or Shia supporters in the police and judiciary because of his Sunni Muslim religion and connection to the US forces are incorrect, as he was able to return to Iraq for a cumulative period of 182 days without incident.

    Application for review

20. The applicant applied for a review of the delegate’s decision.

21. In a submission to the Tribunal, dated 30 April 2021, [Mr C] stated that the applicant held a subjective fear of harm when he applied for refugee status and the fact of his return does not mean that he provided incorrect information in his application for a Protection visa. It was submitted that although Condition 8559 does not apply to the applicant’s case, the condition itself contemplates that people can return to their home countries for very compelling reasons.

22. [Mr C] submitted that the applicant’s reasons for returning to Iraq were ‘very compelling’ in nature, reiterating that the applicant’s first trip to Iraq was for the purpose of supporting his children after his ex-wife’s death. He stated that it was ‘critical’ for the applicant to return to Iraq on the second occasion due to tensions with [Ms G]’s family. It was submitted that because of tribal and familial traditions, there are ‘severe social and tribal consequences’ for being in a relationship outside of wedlock. It was critical for the applicant to return to Iraq, because a delay in the marriage could have led [Ms G]’s family to ‘retaliate’ against the applicant’s family due to damage to their reputation. He further noted that the applicant had presented his marriage certificate and wedding photos to the ABF officer upon his return to Sydney and had explained that the reason for the trip to Iraq was to ‘settle down this issue with [Ms G]’s family’.

23. [Mr C] stated that the applicant’s Protection visa was granted on the basis of his Sunni religion and his family’s connection with American forces. It was submitted that country information indicates that the situation in Iraq is ‘highly unstable and fluid’. As such, whilst circumstances in Iraq might have changed in 2012 or 2015, this does not mean that the risk to the applicant was minimised. It was submitted that although the applicant is from Dhi Qar Governorate, he stayed in rental accommodation in Baghdad and in areas outside of Dhi Qar Governorate.

24. [Mr C] submitted that the applicant’s protection claims were in relation to non-state actors of persecution and when he was granted a Protection visa in 2010 the Al Mahdi army was not a part of the Iraqi government and the Al Mahdi army did not control Basra airport at that time. The fact that the applicant passed through the airport without harm does not mean that he gave incorrect information in his Protection visa application.

25. In response to the delegate’s finding that the applicant’s hotel receipt for his stay in Baghdad was non-genuine, it was submitted that the fact that the delegate had been unable to locate the hotel on Google maps does not mean that the hotel does not exist and the receipt is not genuine. Referring to a link to an Arabic website and a screenshot of a Google maps image, [Mr C] submitted that the hotel is located on the edge of [a named] Street in Baghdad. Addressing the delegate’s doubts in relation to the genuineness of the applicant’s wife’s death certificate, [Mr C] submitted that the death certificate is a genuine document and that there is no central registration system in Iraq.

26. In regard to the applicant’s present circumstances, [Mr C] stated that the applicant is now married to [Ms I], an Australian citizen, and they have two children together. Should he be forcibly returned to Iraq, the applicant’s separation from his Australian citizen children would be in breach of Australia’s obligations under the Convention on the Rights of the Child. It was also submitted that the applicant is a ‘hard working person’, ‘a person of good character’ and has made contributions to the Australian community through his payment of taxes. The applicant has done some studies in Australia, worked [and] has his own [company]. 

1. In relation to the applicant’s criminal convictions in 2013, it was submitted that the applicant’s three offences related to a road rage incident, and that he had expressed his remorse in submissions to the Department in support of his citizenship application.

2. Under the cover of the submission, [Mr C] submitted documentary evidence regarding the applicant’s family composition, his business, qualifications he has obtained in Australia, citizenship of [Ms I] and character references.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

3. 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.

4. 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.

5. Having regard to the terms of the NOICC and the information referred to in the notice, 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. The Tribunal is also satisfied that the nature of the non-compliance was sufficiently particularised for the applicant to respond to it.

6. 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 with s 101(b) referred to in the s 107 notice as set out in the NOICC.

7. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[1] Whilst a visa holder, whose visa is being considered for cancellation, must be invited to show that the ground for cancellation does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA, 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 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.[2]

   [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 297.

   [2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

8. While that case was concerned with cancellation under s 116 of the Act, the Court’s comments would be equally applicable to s 109.

9. In other words, in cases where the existence of certain facts form the basis of the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. The decision maker must be satisfied about the existence of certain facts before exercising the power. When considering the question of whether the decision-maker is satisfied there was non-compliance in the way described in the notice, he or she must ‘feel an actual persuasion’.[3] While the Tribunal is not bound by the rules of evidence, such a state of satisfaction can only be reached where ‘the factual material or information tends to make out, or support, the finding or conclusion reached’ and ‘there is a rational connection between the factual information or material and the finding or conclusion reached’.[4] The quality of the probative material provided ‘which rises no higher than raising a suspicion supporting that factual conclusion is no foundation for such a conclusion’.[5]

   [3] Plaintiff M64-2015 vMinister for Immigration and Border Protection [2015] HCA 50 at [64].

   [4] BZC17 vMinister for Immigration and Border Protection [2018] FCA 902 at [89].

   [5] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [19].

10. In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences to a party, the Tribunal is free to consider the evidence and other materials before it.[6] In that case, Flick and Perry JJ said that:

    The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[7]

    [6] (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

    [7] Ibid [120].

11. The Tribunal is not bound to apply the principle in Briginshaw v Briginshaw that the strength of evidence necessary to make a finding may be greater if the consequences of that finding are serious, but it is not prohibited from applying it if it sees fit. [8] The Court noted that s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, which provided that the Tribunal is not ‘bound’ to apply rules of evidence, was not a prohibition upon the Tribunal applying those rules. It said that imposing a requirement for the Tribunal to apply the rule in Briginshaw in making its factual findings, would be an unnecessary constraint upon the freedom of the Tribunal to employ such procedures as it sees fit in undertaking its fact-finding role.[9]

    [8] Ibid, at [121]. Flick and Perry JJ referred to Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362, ‘… 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…’.

    [9] Ibid, at [122].

12. As the contents of the NOICC demonstrate, the delegate considered the applicant’s responses to questions 41-45 in his Form 866C and referred to the applicant’s trips to Iraq as set out in the NOICC. The delegate determined that the applicant’s voluntary return to Iraq on two separate occasions without experiencing any harm or impediment indicated that he did not hold the adverse profile as claimed in his application for a Protection visa.

13. The delegate’s conclusion that the applicant had provided incorrect answers in his Form 866C, essentially, if not solely, was based on the applicant’s return to Iraq without apparent issues and remaining in that country for the duration of his trips. Whilst the delegate identified specific answers provided by the applicant in his Form 866C, the Tribunal has found no evidence to establish that the applicant’s answers were in fact incorrect and that he had deliberately lied by claiming that he feared being persecuted by the Al Mahdi army for the reasons he had provided in his application for a Protection visa.

14. The Tribunal appreciates that, broadly, an applicant’s act of returning to the country where they claim to fear being persecuted may raise questions in relation to his or her subjective fear of harm and the credibility of their claims for protection. However, the mere fact of return is not necessarily inconsistent with the claimed fear. The individual circumstances of the case and the precise claims which were made must be carefully examined. 

15. The applicant has given consistent evidence throughout the process in relation to his claims for protection. In essence, he claimed to be a Sunni Muslim from [Town 1] in the Dhi Qar Governorate, a predominantly Shia district. In 2008, the Al Mahdi army targeted the applicant’s family due to his brothers’ profile and activities. One of his brothers, [Brother A], [an officer] in the Iraqi Police and had previously fought with the Coalition forces against the Al Mahdi army. His other brother, [Brother B], was a subcontractor with the US forces, supplying building materials for [Detention Centre 1] in Basra. In April 2008, [Brother A] and the applicant’s parents were killed by gunmen as they travelled by car to Baghdad. In December 2008, the applicant was kidnapped and held for one month. He was released after his family arranged a ransom payment of US$30,000 to his kidnappers. The applicant and his family continued to be subjected to harassment and threats of harm, until the applicant’s departure from Iraq following the destruction of his business. 

16. The applicant’s claims as reflected in his responses to the relevant questions in his Protection visa application clearly state that he feared harm from the Al Mahdi army at the time he made his application and that he believed he could not return to Iraq in the foreseeable future. The accuracy of the applicant’s claims and the information provided in his Protection visa application have been questioned only in light of his return trips to Iraq. There is no other evidence before the Tribunal to cast doubt on the accuracy of his claims or to suggest, with any degree of persuasion, that the information provided by the applicant in response to questions 41-45 of his Protection visa application is incorrect. The fact of the applicant’s return to Iraq for limited purposes, without more, is not necessarily inconsistent with the information provided in his Protection visa application.

17. The present case is not a case where a person’s return to the country of feared persecution, in itself, seriously undermines the claims made in the application for a Protection visa. For example, the applicant did not claim to be stateless only to obtain a passport from the authorities in the country of feared persecution and return to the country using that passport.  The applicant did not claim that he feared the authorities in Iraq or that he would be arrested upon returning to that country. The applicant claimed that he feared the Al Mahdi army, a Shia militia, because they had harmed him and other members of his family in the past. He claimed the authorities could not protect him from the harm he feared.

18. Having carefully considered the applicant’s evidence, including the documentary evidence submitted, the Tribunal accepts that the applicant had returned to Iraq in November 2011 following the unexpected death of his first wife as a result of a heart attack and his concern for the welfare of his two young children. The Tribunal appreciates that this tragic incident may have forced the applicant’s emotional decision to return to Iraq for the sake of his children. The Tribunal accepts the applicant’s evidence at the hearing that he had spent his entire stay in Iraq at his father-in-law’s residence in Basra, mourning the death of his wife and supporting his children. The Tribunal has no reasons to doubt the truth of the applicant’s claims regarding the death of his first wife and does not share the delegate’s concerns regarding the genuineness of the death certificate.

19. The Tribunal, however, has difficulty accepting the applicant’s reasons for returning to Iraq on the second occasion as ‘very compelling’. The Tribunal accepts that, following the death of his first wife and his return to Australia, the applicant was introduced to [Ms G] by a family friend and they entered into a long-distance relationship, maintained through telephone and electronic communication. The applicant gave evidence at the hearing that, regardless of the fact that he was not in a physical relationship with [Ms G] and they only communicated across the internet or by telephone, her family expected him to marry her otherwise her honour would have been impugned. Whilst the Tribunal appreciates that the applicant might have been concerned about [Ms G]’s welfare should he not proceed to marry her, it is difficult to see how these concerns had superseded his fears for his own life and safety. Nevertheless, the Tribunal accepts that, having succumbed to emotional pressure to return to Iraq to marry [Ms G], he had kept a low profile by staying with a friend in [in a location] near Basra for two weeks, before travelling to Baghdad where he and [Ms G] had resided in a hotel for approximately two months after their marriage. Having independently verified the existence and the location of the hotel through the links provided by the applicant’s representative in his submissions, the Tribunal does not share the delegate’s concerns in relation to the genuineness of the hotel receipt submitted by the applicant. The Tribunal accepts that both Basra and Baghdad are approximately 300 km away from [Town 1]. The Tribunal further accepts that, on the day of his marriage, the applicant and [Ms G] were driven to [Town 1] by a family friend, avoiding the main routes, for a few hours only and for the sole purpose of registering their marriage. They had returned to Basra on the same day.

20. As it was put to the applicant at the hearing, his decision to return to Iraq on two occasions, particularly his decision to return to Iraq on the second occasion, raises legitimate questions in relation to his claims for protection. However, the Tribunal is not of the view that this should automatically lead to the conclusion that he had provided incorrect information in his application for a Protection visa. The Tribunal accepts that, on these two occasions, the applicant’s compulsion to support his two young children following the death of his wife and his desire to protect [Ms G], as well his own family reputation had outweighed his fears arising from the circumstance that led to him seeking protection. As noted earlier, there is no onus on the applicant to satisfy the Tribunal that the information he had provided is correct or to establish that the visa should not be cancelled. The Tribunal must consider whether there has been ‘non-compliance in the way described in the notice’.

21. Having regard to all of the evidence before it, the Tribunal does not accept that the applicant’s return to Iraq on the two occasions referred to in the NOICC provide a real persuasive basis to make a positive finding that the information the applicant provided in his application for a Protection visa was incorrect. Relevant to the facts of this case, the cancellation of a permanent visa where the visa holder has been residing in Australia for some 11 years has serious consequences and any factual findings should be based on logical and probative material. The Tribunal has not reached a real state of satisfaction that non-compliance has been established.

22. For these reasons, the Tribunal is not satisfied that the applicant gave incorrect answers in his application for a Protection visa. The Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

23. 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

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Shahyar Roushan
    Senior 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.