2012814 (Migration)

[2021] AATA 3395

2012814 (Migration) [2021] AATA 3395 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012814

MEMBER:Melissa McAdam

DATE:9 June 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 09 June 2021 at 10:18am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous visa application – claimed adverse profile – voluntary returns to the country of persecution – possession of an Iraqi passport – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 107A, 109

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).

2. The delegate cancelled the visa on the basis that the applicant had not complied with her obligations under s.101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Section 107 Notice, NOICC

3. On 23 April 2019 the department delegate issued a Notice of Intention to consider Cancellation (‘NOICC’) of the applicant’s Subclass 155 visa under s.107 of the Act. The NOICC contained the following:

   [In] July 2010 you arrived in Australia at Christmas Island as an illegal maritime arrival (IMA) and claimed Protection.

   On 1 August 2010 you attended an interview with your Immigration Advice and Assistance Scheme (IAAAS) agent regarding your Refugee Suitability Assessment (RSA) submission. …

   On 6 July 2011 the Refugee Status Assessment found you to be a person to whom Australia owes protection obligations.

   As a result of this, the Minister removed the bar preventing you from lodging a valid visa application and on 9 July 2011 you lodged your Protection application.

   As part of your application you submitted form XA-866C - Application for an applicant who wishes to submit their own claims to be a refugee. In support of your application, you provided a Statutory Declaration (statement) in which you described the events which led to your departure from Iraq.

   In your statement you stated:

   • You worked for the Iraqi army [in] northern Iraq in 2004. However, as it was dangerous you ceased working in this role. There were many fundamentalist people in the area that targeted police and army cars and bombed them, or were stopped by members of the Baath Party, including on their way home from work.

   • In 2006 you applied for a bomb operator course so that you could stop working as a driver. You started work in this role where you supported the US army in disabling bombs.

   • In June 2007 you applied for and were transferred to [City 1] to be close to your family and you worked as a policeman and driver with the Iraqi Army.

   • In December 2007 you commenced work with the Iraqi Anti-Terrorism Police Directorate in [City 1]. The Directorate’s role was to raid houses which were suspected of being involved in terrorist activity.

   • Your brother [Brother A] was a [Position 1] with this unit and was responsible to identify and arrest people involved with terrorist activity. You were his driver.

   • Due to your association with and involvement in this role, you and your brother were targeted by a number of militia and non-militia groups. This was because some of the people your brother arrested were imprisoned or executed.

   • In November 2009, your brother was shot in the arm by the Moktada al Sadr Militia and he resigned from the Directorate.

   • Ten days later, you and your family were driving home from a religious site visit and you were followed home by three armed persons in a vehicle who yelled at you stating you were a spy and an American agent.

   • Following this incident you resigned from this role and moved to another area with your family near to where your brother [Brother B] lived.

   • On one occasion, your brother [Brother B] went to get your food supply and upon his return while you were helping him bring the food into the house a car drove by and shot at you and your brother was killed.

   • Following this incident you moved to Baghdad, however you were getting calls from people asking for your whereabouts. On one occasion you received a call believing it was your cousin stating that he was coming to see you, however your brother in-law who was with you at the time believed it was someone else as he rang your cousin who replied that he had not made the call.

   • You feared that this person would come to kill you as he (they) knew where you were and you did not feel safe anywhere in Iraq and as such you decided to leave the country.

   In your application Form 866C, Application for a Protection (Class XA) visa you provided the below answers to the following questions:

   Question 41: I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries)

   You stated: Iraq

   Question 42: Why did you leave that country?

   You stated: Please refer to attached statement.

   In your statement, you stated that you left Iraq because there are a lot of fundamentalist people in that country and that you had been targeted by militia and non-militia groups because of your employment with the Iraqi Anti-Terrorism Police Directorate in [City 1], Iraq.

   Question 43: What do you fear may happen to you if you go back to that country?

   You stated: Please refer to attached statement.

   In your statement, you stated that you would be killed if you return to Iraq.

   Question 44: Who do you think may harm/mistreat you if you go back?

   You stated: Please refer to attached statement.

   In your statement you stated that you believe that you would be harmed or killed by the militia.

   Question 45: Why do you think this will happen to you if you go back?

   You stated: Please refer to attached statement.

   In your statement you stated: ‘They will kill me because of my previous job with the Anti-Terrorist Police Directorate’

   Question 46: Do you think the authorities of that country can and will protect you if you go back? If not, why not?

   You stated: Please refer to attached statement.

   In your statement you stated; ‘There is no government in Iraq. It is all parties and they are trying to kill each other.’

   Question 49: How did you leave?

   You stated: ‘Legally – Went to [Country 1] without a visa, got entry permit on arrival’

   Question 50: Did you have difficulties obtaining a travel document (such as a passport) in your home country?

   You stated: ‘No’

   Question 52: Do you have your travel document with you now?

   You stated: ‘No – Smuggler took it’

   Question 53: Is your travel document valid for return to your home country?

   You stated: ‘No – Don’t have a passport’

   On 14 July 2011 based on the above information you provided, as well as meeting other relevant criteria you were granted a Protection (subclass 866) (Permanent) visa.

   Since the grant of your XA-866 Protection visa, departmental records indicate that you have travelled overseas on the following occasions and remained offshore for 409 days in total. You indicated on your passenger cards that you completed each time you departed and arrived in Australia that you would be/had spent most of your time in Iraq. In your incoming passenger card [in] December 2017 you declared that the country where you had spent most of your time abroad was Iran.

   …

   Upon your arrival in Australia [in] November 2015, you were questioned by Australian Border Force (ABF) officers at Sydney Kingsford Smith International Airport in relation to your recent travel. Located in your possessions were the following items:

   1. A flight itinerary indicating that you had travelled to Basrah, Iraq

   2. Your Iraqi passport ([document number redacted]) that was issued [in] 2007 and expired [in] 2014. This passport contained Iraqi Immigration entry and departure stamps that confirmed the following Iraqi travel movements:

   • [November 2012] – [March 2013]

   • [December 2013] – no exit stamp visible

   3. Iraq Consulate letter dated [in] 2015 stating that you are an Iraqi citizen and a holder of an Australian travel document ([document number redacted]).

   Additionally, you stated to the officers that you had been in Basrah visiting your family.

   On 24 November 2016 you lodged an application for a Resident Return (subclass 155) visa. You were granted the Return Resident visa on 3 January 2017.

   Since the grant of your Protection visa you have voluntarily travelled to and spent extended periods of time mostly in Iraq (approximately 352 days), the country from which you sought protection, and you returned to Australia on each occasion without any apparent issue. Your first departure from Australia was just three months following the grant of your Protection visa on 22 October 2011 and fifteen months following your initial arrival.

   I consider this behaviour is not consistent with your claimed adverse political profile of being targeted by militia and non-militia groups in Iraq because of your employment with the Iraqi Anti-Terrorism Police Directorate, as fear of returning to Iraq which you declared in your Protection visa application and suggests that the claims that you made were incorrect.

   Non-compliance with Section 101(b)

   It appears that you have provided incorrect answers/information in your Protection visa application lodged on 9 July 2011.

   At question 43 of the Form 866C which asked; What do you fear may happen to you if you go back to that country; you declared in your statement in support of this answer that you would be killed if you returned to Iraq because you had previously been targeted by militia and non-militia groups because of your employment with the Iraqi Anti-Terrorism Police Directorate in [City 1].

   This answer appears to be incorrect because, since the grant of your Protection visa you have voluntarily returned to Iraq on at least four occasions and remained in that country for a total period of 352 days, your first trip being within three months of the grant of your visa. Your protection claims that you held an adverse profile and held a genuine fear of returning to that country because you would be harmed or mistreated by various militia groups is incorrect, given that you have voluntarily travelled back to Iraq on multiple occasions, remained in the community there, and returned to Australia without any impediment.

   At question 44 of the Form 866C which asked;

   Who do you think may harm/mistreat you if you go back? you declared in your statement that you would be harmed or killed by the militia if you returned to Iraq.

   This answer would appear to be incorrect because you voluntarily returned to Iraq on at least four occasions as the holder of a Protection visa, the first time within three months of the grant of your visa and you have remained in that county for a total period of 352 days.

   On each occasion, you have returned to Australia without any apparent incident or harm. In your interview with ABF officers on 3 November 2015 you stated that you were visiting your wife and five children in Basrah. The fact that you returned to Iraq on repeated occasions suggests that you did not hold an adverse profile for which you claimed in your Protection visa application that you would be harmed or killed by the militia.

   At question 45 of the Form 866 which asked, Why do you think this will happen to you if you back? you stated that you would be killed because of your previous work with the Anti-Terrorist Police Directorate. This answer would appear to be incorrect because you have voluntarily returned to Iraq following the grant of your Protection visa on at least four occasions and remained in that country for a total period of 352 days. On each occasion you have returned to Australia without any impediment. This indicates that you did not hold the adverse profile you claimed in your Protection visa application that you would be killed because you were targeted by militia and non-militia groups for your previous employment with the Anti-Terrorist Police Directorate.

   At question 52 which asked; Do you have your travel document with you now? You stated that the people smuggler took it from you. This would appear to be incorrect because your Iraqi passport (number [redacted]) issued in your name [in] 2007 and valid [to] 2014 was located in your possession by ABF officers on your return to Australia from Iraq [in] November 2015. Therefore it appears that you did not surrender the passport to the people smuggler as claimed but held it at the time of your application for a Protection visa.

   At question 53 of the Form 866C which asked; Is your travel document valid for return to your home country?  You stated that you did not have a passport. This would appear to be incorrect because your Iraqi passport (number [redacted]) issued in your name [in] 2007 and valid [to] 2014 was located in your possession by ABF officers on your return to Australia from Iraq [in] November 2015. It therefore appears that you did hold a passport and that document was still valid at the time of your application for a Protection visa.

   You have spent 409 days outside Australia since the grant of your Protection visa and, given the information above, at least 352 days has been in Iraq. I consider that this is a significant period of time for you to have spent in Iraq particularly given that you feared that you would be harmed or killed if you returned there.

   I consider that you voluntarily entered Iraq on at least four separate occasions, the first time being four months after making claims in your Protection visa that you feared to return to that country and you resided with your wife and children on each occasion. I consider that your claims that you would be harmed or killed by various militia and non-militia groups are incorrect as you have voluntarily returned to Iraq on each occasion.

   If this information is correct you would appear to have breached section 101(b) of the Migration Act 1958 in obtaining your Protection visa and through the provisions of section 107A of the Act, your current Resident Return (subclass 155) visa may be cancelled under section 109 of the Migration Act 1958.

   Response to NOICC

4. On 7 May 2019 the applicant’s Agent provided a written submission in response to the NOICC attaching the following:

   -A Statutory Declaration by the applicant, dated 5 May 2019.

   -Copies of the applicant’s Australian Travel documents showing exit and entry stamps. The Travel Document issued in August 2011 shows entry and exit stamps for Erbil in the Republic of Iraq – Kurdistan region in October 2011 and December 2011 respectively.

   -Copy of a medical report by [Dr C], Consultant Neuropsychiatrist, dated 10 February 2019, regarding ‘[Ms D]’, in Arabic with English translation.

   -Copy of a medical report by [Mr E], psychiatrist, dated 4 February 2019, regarding ‘[Ms D]’, in Arabic with English translation.

   -Copy of a medical report by [Dr F] and [Dr G], undated, regarding ‘[Ms D]’, in Arabic with English translation.

   -Copy of a medical report by [Dr H] and [Dr I], dated 10 February 2019, regarding ‘[Ms D]’, in Arabic with English translation.

   -Copy of a medical report by [Dr J] and [Dr K], dated 10 February 2019, regarding ‘[Ms D]’, in Arabic with English translation.

   -A letter from the Consul of the Consulate General of the Republic of Iraq, dated [in] 2019, stating the number and issue date of the applicant’s Iraqi passport and that it is marked as lost.

   -A copy of an application for an Iraqi passport by the applicant.

5. In the applicant’s Statutory Declaration he states the following:

   I was born in [City 1] Iraq on [date]. I am an Iraqi Citizen and I do not have any other citizenship. I am of Arab Ethnicity; My Religion is Muslim of the Shia sect.

   My father is [Mr L] is deceased. My mother [Ms M], she is widowed and reside with my wife and children [in] southern Iraq. I have two sisters, [Ms N], [Ms O], all married and live in [specified] area [City 1] with their families. I have not seen them since I left [City 1] in 2010. I have three brothers, [Brother B] is deceased, [Brother A] is married and lives in Baghdad with his family and [Brother P] is married and lives in Diwaniya with his family.

   I am married to [Ms D] [in] August 2003. We have four children [Child Q] ([age]), [Child R] ([age]), [Child S] ([age]), [Child T] ([age]), [Child U] ([age]) and [Child V] ([age]).

   I studied for seven years until 1993. I left school and I started working as a [Occupation 1] for four years. I joined the Iraqi Army in 1997 as a conscript and served three years of compulsory army service. After that I [worked in Occupation 2] for four years before re-joining the Iraqi army.

   In the Army I first worked as a driver for two years from 2004 until 2006. I then Joined the bomb disposal team as a driver for one year until June 2007. I was then a general driver for six months before joining the Anti-Terrorism Police for two years from December 2007 until November 2009 also a driver. In November 2009 I [worked in Occupation 2] for six months before leaving Iraq [in] May 2010 fearing for my safety.

   I transited through [Country 2] on the same day on my way to [Country 1] where I stay for 17 days before moving to [Country 3] where I stayed until 7 July 2010 before boarding the vessel to Australia.

   My protection visa claims were assessed and I was granted a protection visa on 14 July 2011.

   After one year of separation from family my wife was becoming ill. She started seeing [Dr C] in 2011 for acute pain and nervous tensions. Her condition was worsening due to the pressure she was facing raising the children alone and the uncertainty of time it will take to reunite as a family. She has had chronic headache and epileptic fits and nervous panic attacks. She has a diagnosis of chronic depressive disorder and recently a sliding cervical vertebra and softening of the knees.

   I became very concerned for my wife's well-being as her medical condition was worsening I decided to go and see her and the children, who were also suffering.

   [In] October 2011 I left Australia using an Australian Travel Document ([number redacted]) for the Republic of Iraq-Kurdistan Region. After one day transit in [Country 3] I landed at lrbil airport [in] October 2011. I rented a hotel room in lrbil near the airport. I do not recall the name of the hotel. My family joined me two days later. We spent there around two months together and I returned to Australia leaving lrbil [in] December 2011 and arriving in Australia [later in] December.

   On 9 November 2012, I left Australia for Iraq using an Australian travel document ([number redacted]). I landed at Bagdad Airport [in] November 2012. At the request of the Iraqi authorities I presented an old passport ([number redacted]) for proof of Iraqi nationality and it was stamped by the authorities instead of my Australian travel document as a proof of entry. My old passport ([number redacted]) was brought to me by my wife during my visit to lrbil in October 2011. Passport ([number redacted]) issue date [in] 2006 with initial expiry date [in]l 2007 and renewed [until]l 2014. It was no longer valid by operation of Iraqi law after the issuing to me my passport ([number redacted]) [in] 2010.

   My answers on the protection visa application at questions 52 and 53 were correct. Because at the time old passport ([number redacted]) was not in my possession. It was brought to me by my wife at the meeting in lrbil. And as I stated passport ([number redacted]) was handed over to the smuggler before we boarded for the vessel. During the November 2012 till March 2013 visit. My family and I stayed with my brother in law [Mr W] [in] Baghad for the entire period.

   [In] December 2013 I left Australia using Australian Travel Document ([number redacted]) for Iraq and I landed at Basra Airport. The Iraqi authorities requested a document proofing my Iraqi nationality and I presented my old passport ([number redacted]), once again this old passport was stamped as proof of entry. During this stay my family and lived in a rented house at [District 1] in the Basra Governorate. A friend of mine named [Mr X] organised it for us. We stayed there [until] May 2014 and I left from Baghdad airport as there was no flight from Basra at the time.

   [In] October 2015 I left Australia using Australian travel document ([number redacted]). I Travelled to Bara and I met with family and we stayed at the same house we stayed at on the previous trip which was also organised by my friend [Mr X]. We stayed there fore one month and I returned to Australia [in] November 2015.

   [In] October 2017 I left to Australia using Australian travel document ([number redacted]) I travelled to Iran and returned to Australia.

   My claims for protection are genuine. I left Iraq fearing for my life. I believed that I would be killed by militia groups due to my previous employment in the Army and anti-terrorist police. My brother with whom I worked closely was killed and I was targeted by the same people.

   The Sunni Shia sectarian violence in Iraq at the time is well documented and was verified by independent evidence from respected international organizations. As a Shia who was involved with the anti-terrorist police, having been involved with many arrests of suspected terrorists I became vulnerable to acts of violence by opponents in the conflict.

   When I was granted my protection visa subclass 866, it did not have any conditions. It was explained to me at the time and understood that even though my visa did not restrict me from travelling to Iraq, Australia could not protect me in Iraq.

   I did not intend on returning to Iraq because I feared for my safety and that is why I travelled to lrbil to see my family on the first occasions. Because of my wife's illnesses it was becoming harder for her and the children to travel to lrbil. I was emotionally charged as a result of my condition and the suffering of my family I decided to go to Iraq to see them and provide the needed support. I did not go to the city of [City 1] and kept a low profile during my trips to Iraq restricting my outings from the house to accompanying my wife to the doctors and the children school.

   Delegate’s decision

1. On 11 August 2020 the delegate decided to cancel the applicant’s current Resident Return, subclass 155 visa under s.109 of the Act. The delegate was satisfied that that the applicant provided incorrect information in relation to his answers to questions 43, 44, 45, 52, and 53 of his subclass 866 visa application Form C. As such, the delegate was satisfied there had been non-compliance by the applicant with s.101(b) of the Act.

2. The delegate weighed the discretionary considerations and found that the applicant’s non-compliance with s.101(b) outweighed the reasons not to cancel the visa.

   Information to the Tribunal

   Pre-Hearing Submissions

3. On 26 April 2021 the applicant’s Agent submitted copies of the following materials:

   -Full copies of the applicant’s Australian Travel Documents containing the following details:

   ·The Travel Document issued in September 2013 shows a May 2014 departure stamp from Baghdad, Iraq.

   ·The Travel Document issued in July 2014 shows an October 2015 Entry Stamp to Basra and a November 2015 departure stamp from Basra. 

   ·The Travel Document issued in June 2017 shows a 90 day Iranian visa and Iranian entry and exit stamps.

   -Several photographs of men, including the applicant, in military unform in Iraq.

   -The applicant’s Iraqi passport issued in 2006 with expiry date [in] 2007.  It shows the following details and stamps:

   ·Extension of the passport [from] 2007 [to] 2014.

   ·An entry stamp in December 2013 to Basra.

   ·An entry stamp to Baghdad in November 2012.

   ·A departure stamp from Baghdad in March 2013.

   ·A 30 day Iranian visa issued in Karbal in May 2006.

   ·Entry and exit stamps to Iraq in June 2006

   ·Entry and exit stamps to Iran in the third month of 1385 (Iranian calendar).

   -The applicant’s May 2011 RSA assessment.

   -A medical report by Specialist [Dr Y], dated 22 March 2021, regarding ‘[Ms D]’, in Arabic with English translation.

   Tribunal Hearing

4. The applicant appeared before the Tribunal on 31 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The following is a summary of the information provided by the applicant at the hearing:

   a.All the information he provided in his Protection visa application was correct.

   b.He lived in [City 1] in Iraq until the age of [age] or [age] when he went to [location] in Qadisiya for four months. Then he went to Baghdad for two and a half months.

   c.He attended school in Iraq for about 7 or 8 years.

   d.He worked in Mosul in the army for two and half years from 2004.  His family lived in [City 1] and he would return there for a week’s leave every few weeks.  In Mosul he worked as a driver in the Iraqi army and later worked in bomb disabling with the US army, after he completed a bomb disabling course.

   e.He has submitted his military service documents to the department.

   f.His family are still living in Iraq.  His wife, [children] and mother are all in Qadisiya. Sometimes his wife goes to Baghdad to stay at her sister’s house.  The applicant’s brother lives in Samawah. 

   g.The applicant’s wife is ill.  She has seizures and collapses.  She is also mentally ill. She is on anti-depressant medications and has become addicted to them.  She also takes medication for her epilepsy.  She has a slipped disc and sclerosis in her arteries.  The elder children help look after her. 

   h.After the applicant left Iraq his family did not receive any more threats about him.

   i.While he was at Christmas Island detention centre he called his friend, [Mr Z], in Iraq. [Mr Z] told him that the applicant’s house in [City 1] had been shot at.  This happened before the applicant left Iraq but his neighbours didn’t tell him at the time.

   j.He returned to Iraq in 2011 to see his wife and children. His wife was ill.  He would sacrifice everything for his wife and children.  He went to Erbil. His wife and children travelled to Erbil and they stayed together there.  The applicant’s brother also went to Erbil and helped the applicant to rent a little house there.  He and the applicant’s wife and children travelled to Erbil by taxi. They had no problems getting there.

   k.He returned to Iraq in 2012-3 and stayed at his sister’s house in Baghdad.  His wife and children joined him there.  The house was in [District 2] in Baghdad.

   l.He returned to Iraq in 2013-4 and in 2015 and stayed in Basra.  His friend Ahmed rented the applicant a house. It was in [District 3] or [District 1].

   m.In 2017 he went to Iran and met with his family there in Qom.  They went to Shia shrines such as Seyeda Fatima Masoumah.  His wife is ill so they went there to pray for her.

   n.The photographs the applicant submitted are from the time he served in the army in Mosul as a driver.

   o.The applicant still has enemies in Iraq.  In his work with the Iraqi anti-terrorist police he was involved in arresting criminals who would be sentenced to execution. They were often released however. They would consider the applicant an enemy and want to harm him for having them arrested.  He would be fearful all the time in Iraq.  He did not return to Iraq for tourism. He went just to see his wife and children for short times away from his home area.

   Post-Hearing Submission

5. On 7 June 2021 the applicant’s agent submitted the following materials to the Tribunal:

   -Photographs of the medication being taken by the applicant’s wife, including [Medication 1], [Medication 2], and [Medication 3].

   -A letter from the applicant dated 16 March 2021.

6. In the applicant’s letter he sets out the following:

   -His subclass 155 visa did not have any conditions attached to it.

   -The circumstances in r.2.41 of the Migration Regulations do not apply to him.

   -His visa application was completed with all questions answered correctly.

   -He has complied with all his previous visas.

   -He travelled overseas on 5 occasions. Four times to Iraq and once to Iran.

   -On his return to Australia on 15 November 2015 he provided the Australian Border Force with his flight itinerary and his old Iraqi passport issued in 2006.  It contained Iraqi departure stamps for 18 March 2006 and 4 March 2013.  It contained Iraqi entry stamps for 19 June 2006, 10 November 2012, 5 March 2013 and 16 December 2013. When he travelled to Iraq in October 2011 he used his Australian Titre de Voyage.

   -On his returns to Iraq he stayed at a location different from his family.  His family are in Qadisiya province.

   -His wife had his old Iraqi passport and gave it to the applicant’s brother for it to be extended at the Iraqi passports office.

   -He refers to findings by the department delegate in the applicant’s RSA assessment regarding the threat to the applicant in Iraq.

   -It cost his and his wife’s life savings for the applicant to flee Iraq.  After his departure his wife developed epilepsy. He is very worried about her. He has taken risks with his life for the sake of his family.

   -He planned to bring his family to Australia but has been unsuccessful. So he had no choice but to risk return to Iraq to see them.

   -In Iraq he is always in fear of being detained and killed.  In Australia he feels safe. However he is alone in Australia.  The people dearest to him are his wife and children.  His children are on their own with their mother and witness when she has epileptic fits. The eldest ones try to manage her and look after the younger children.  For them he has risked his life to return to Iraq.  He had been away from them for 15 months before he first returned.  He worries about them every day.

   -Wanting to see his family did not mean he no longer felt he would be targeted in Iraq.  His claims in his Protection visa application were correct.  He did not give incorrect answers about handing his passport to the smuggler.

   -He is from [City 1], a central province in Iraq with its own international airport.  On his returns he went to Erbil, Baghdad, and Basra.

   -He has good social surroundings in Australia. There are no court judgments against him.  He has got to know Australia as his home because it welcomed and protected him.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. The Tribunal notes that for cancellation cases, the existence of facts grounds the exercise of the statutory power. The onus of establishing those facts is therefore on the Minister, or on review, the Tribunal.[1] Although the applicant must be invited to show that the ground does not exist, or if it does, to show cause why the discretion to cancel should not be exercised, this does not place an onus on the applicant to establish that the visa should not be cancelled.[2]  Furthermore, in the context of s.109, in deciding whether the ground for cancellation is made out it would be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.[3]

   [1] See e.g. Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA [1994] FCA 1534 at [14].

   [2] See e.g. Zhao v MIMA [2000] FCA 1235 at [25] and [32].

   [3] See e.g. Tarasovski v MILGEA (1993) 45 FCR 570 at 572–573 and Singh v MIEA [1994] FCA 1534 at [16].

9. 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.

10. 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?

11. 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) of the Act in the following respects:

    The applicant’s responses to questions 43, 44, 45, 52 and 53 in Form C of his subclass 866 visa application.

12. This information related to his claimed fear of harm in Iraq and to not holding a passport.

13. The delegate based her findings that the applicant had provided incorrect information in response to these questions on the following:

    –The applicant’s several returns to Iraq after being granted a Protection visa in Australia.

    –The applicant’s possession of an Iraqi passport in November 2015.

    Returns to Iraq

14. The applicant has explained that he travelled from Australia five times to see his wife and children because he felt personally compelled to do so.  He has explained his high level of concern for them given his wife’s serious illnesses.

15. The applicant stated that on no occasion did he return to his home city, [City 1].  His first return was to Erbil in the north of Iraq.  His second return was to Baghdad.  His third and fourth returns were to Basra and his final travel was to Qom in Iran, not to Iraq.

16. The applicant’s Australian travel documents and Iraqi passport each contain stamps and other details that support the applicant’s statements regarding where he travelled. 

17. As stated by the applicant, country information confirms that [City 1] hosts an international airport, reportedly “the third largest in Iraq”, however there are no stamps in the applicant’s travel documents and passport, or any other available evidence, to indicate that the applicant ever accessed the airport in [City 1].

18. On the basis of the available evidence the Tribunal accepts that on none of his returns to Iraq did the applicant go to [City 1], but instead went to Erbil, Baghdad, and Basra and then Iran.

19. The Tribunal notes that the applicant received threats by phone after he fled to Baghdad.  However it was in [City 1] that the applicant’s activities which brought him to the adverse attention of local militias took place.  This was also the area in which his brother [Brother B] was killed and his brother [Brother A] was shot. The Tribunal notes that [City 1] is approximately 550 kilometres south of Erbil, 180 kilometres south of Baghdad, and 450 kilometres north-west of Basra.

20. That the applicant did not return to [City 1], despite this being his home area, lends support to the applicant’s claim to have experienced threats, the killing of his brother [Brother B], and the shooting of his brother [Brother A] there. 

21. The evidence before the Tribunal indicates that the applicant took care to stay in areas far from [City 1] when he travelled from Australia to see his family.  His relatively short stays and absence from the activities that had previously put him in danger would also have minimised the risks for his returns.

22. The evidence before the Tribunal indicates that the applicant did consider the risk of harm to himself in visiting Iraq to see his family and that he took precautions to avoid coming to the attention of the militia groups or other enemies in [City 1].

23. In view of the above the Tribunal is not satisfied that the applicant’s four visits to Iraq and one visit to Iran establish that the applicant did not possess the profile, background, and fear of harm that he claimed in his Protection visa application.

24. The Tribunal is therefore not satisfied that the applicant provided incorrect answers to questions 43, 44, and 45 in Form C of his Protection visa application.

    Iraqi Passport

25. In his Protection visa subclass 866 application the applicant gave responses that he did not have his travel document with him (at the time) because a smuggler had taken it on his journey to Australia, and that it was not valid for the applicant’s return to his home country because he no longer had the passport.

26. In his Protection visa application the applicant describes using his passport to depart Iraq in 2010 and to obtain a visa on arrival in [Country 1].

27. The Tribunal notes that there is no record of any departure from Iraq in 2010 or entry to [Country 1] in 2010 in the applicant’s 2006 issued Iraqi passport.  This fact supports the applicant’s statement that the 2006 issued passport was not the one he used when he fled Iraq in 2010.  This would mean that his Iraqi passport which he used to flee Iraq may well have been taken by the smuggler and therefore not available for the applicant to use to return to Iraq.

28. While the applicant also had been issued the 2006 passport, renewed in 2007, there is no clear evidence to contradict the applicant’s contention that this passport remained in Iraq when he fled from there in 2010 on a new passport, and that it was not in his possession again until his wife brought it to him on his first visit to Iraq in late 2011.

29. The Tribunal is therefore not satisfied that the applicant’s possession of a 2006 issued Iraqi passport in November 2015 establishes that he had an Iraqi passport in his physical possession in 2010 when he lodged his Protection visa application.

30. The Tribunal is therefore not satisfied that the applicant provided incorrect information in his response to questions 52 and 53 of Form C of his Protection visa application.

    Conclusion on non-compliance

31. On the basis of the above findings, reasons and evidence 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

32. 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.

    Melissa McAdam
    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.