1921674 (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Immigration to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The cancellation was based on the grounds that the applicant had provided incorrect answers in his earlier Protection visa application, specifically concerning his adverse profile and fear of harm in Iraq due to his religious affiliation with Sunni Islam and his father's and brother's charitable work at a mosque. The applicant and his brother had allegedly been kidnapped and threatened by members of a Shiite militia, leading to their voluntary return to Iraq for extended periods to visit their parents.

The primary legal issue before the Tribunal was whether the applicant had indeed provided incorrect answers in his Protection visa application regarding his fears and profile in Iraq at the time of its completion, which formed the basis for the visa cancellation. This involved considering the applicant's subsequent voluntary returns to Iraq and assessing whether these returns were inconsistent with his claimed fear of harm, and whether the country information supported or contradicted his claims of past harm and ongoing fear. The Tribunal was required to determine if the facts grounding the Minister's statutory power to cancel the visa were established.

The Tribunal reasoned that while the applicant had returned to Iraq for approximately four months in 2015, and his brother had also made multiple extended visits, this did not necessarily negate the applicant's claims of past harm or fear. The Tribunal noted that the threats to the applicant and his family arose from his father's and brother's work at the mosque, and that they had ceased this work. It was considered logical that ceasing this activity might reduce their status as active targets. Furthermore, the Tribunal acknowledged that the applicant's parents had moved to an isolated area, which could mitigate risk. The Tribunal also considered the gravity of the consequences of cancellation and the onus on the Minister to establish the grounds for cancellation.

Ultimately, the Tribunal found that the decision under review should be set aside. The Tribunal concluded that the applicant's voluntary returns to Iraq, while requiring consideration, were not necessarily inconsistent with his claims of past harm and fear, particularly given the circumstances of his visits to care for sick parents and the cessation of the activities that had led to the threats. The Tribunal determined that the grounds for cancellation had not been sufficiently established.