2015161 (Refugee)

[2022] AATA 1129

2015161 (Refugee) [2022] AATA 1129 (18 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015161

COUNTRY OF REFERENCE:                   Iraq

MEMBER:F. Simmons

DATE:18 February 2022

PLACE OF DECISION:  Sydney

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 18 February 2022 at 8:25pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect information given in protection visa application and response to department’s notice – fear of harm from extremist groups because of occupation – attacks and threats – claim of travel only to third country, and no return to home country – no initial declaration of wife’s passports or travel to third country, then inconsistent claims and evidence – birth of child nine months later – document examination found scanned copy of wife’s claimed second passport fraudulently generated – country information – anonymous allegation of return to home country cannot be tested – discretion to cancel visa – credibility – grant of visa not based on incorrect information about travel – consistent claims of work history, past harm and chance of future harm because of occupation – non-refoulement – protection finding not overturned – mandatory consequences if visa cancelled – possibility of prolonged or indefinite detention – mental health – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36(2), 99, 101(b), 107(2), 109(1), 179D, 189, 198, 424AA, 438(1)(b), (3), (4)
Migration Regulations 1994 (Cth), r 2.41
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)

CASES
AQM18 v MIBP [2019] FCAFC 27
Briginshaw v Briginshaw (1938) 60 CLR 336
Commonwealth v AJL20 [2021] HCA 21
DMH16 v MIBP [2017] FCA 448
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
MIEA v Pochi (1980) 44 FLR 41
NKWF v MIBP [2018] FCA 409
Plaintiff M64/2015 v MIBP (2015) 90 ALJR 197
Sullivan v CASA (2014) 226 FCR 555  
WKMZ v MICMSMA [2021] FCAFC 55
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 dependants.

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 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 had given incorrect information about in his protection visa application in contravention of s 101(b) of the Act. The delegate also found that he gave incorrect information in response to the notice of intention to cancel his visa issued by the Department in contravention of s107(2) of the Act.

3. The issue for determination in the present case is whether any of the grounds of cancellation are made out, and, if so, whether the visa should be cancelled. In this case the applicant was issued with two notices of intention to cancel his visa. The Tribunal must consider whether there was non-compliance as described one or both notices and, if so, whether the visa should be cancelled.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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.

   Restrictions on the disclosure of information

7. The Department's file contains two certificates dated 28 October 2020 restricting the disclosure of certain information given to the Tribunal by the Department under s.438 of the Act. The first certificate is issued under s 438(1)(b) and states that the disclosure of the information contained would be contrary to the public interest as it contains 'documents or information that would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods'. The second certificate is issued under section 438(1)(b) of the Act and relates to information that was given to Department in confidence.

8. The Tribunal is satisfied that the s.438 certificates identify a valid ground of public interest immunity and adequately explain how the disclosure of information would not be in the public interest. The Tribunal’s use and disclosure of the information identified in the certificates is subject to s 438(3) and (4) of the Act. The first certificate relates to a Document Examination Unit report about a copy of the biodata page of passport purportedly belonging to the applicant’s wife and the outcome of this report is referred to in the Notice of Intention to Cancel the applicant’s visa sent to the applicant on1 June 2018. The second certificate relates to an anonymous allegation the applicant returned to Iraq. The gist of this allegation is referred to the ITOA decision dated 2 July 2020 and was also put to the applicant at the Tribunal hearing in accordance with s 424AA of the Act. 

   Background

9. The applicant was born on [Date 1] in Iraq. He is married to [Ms A] who was born in Iraq on [Date 2]. Together they have three children: [Child 1] born on [Date 3], [Child 2] born on [Date 4] and [Child 3], born on [Date 5] .

10. [In] January 2015 the applicant arrived in Australia holding a [Specified temporary visa]. He was granted this visa to travel to Australia as [an Occupation 1] for [an Event]. Shortly after he arrived, on 10 February 2015, he lodged a protection visa. He claimed that in Iraq  he worked as [an Occupation 1] for the [Employer], [an] organisation sponsored by state funding. He claimed that he had been threatened and harmed because of his work as [an Occupation 1]. He sought asylum in Australia on the basis that he feared he would be assassinated by armed extremist groups, terrorists, and militias, as had happened to Iraq and foreign [Occupation 1] colleagues. He claimed that the Iraqi authorities were unable to protect him and  that he feared returning to Iraq.

11. When the applicant applied for a protection visa he completed a form 866C “Application for a protection visa”. He provided the following information:

    90. Why did you leave that country(s)? Provide specific details
     “I fear returning to Iraq because of the kidnap and killing attempts by the hands of ISIL supporters and some extremist armed militias members. I faced death threats through letter stating “Your time to die is coming soon as you work in the [employer] affiliated with the unfair government”, inside the letter I found a bullet. I reported this matter to the police. I faced assassination attempt and got injured in the [Body part 1] as a result at [an] area in Baghdad. I have been rushed to [Hospital 1]. Before my travel to Australia, I faced assassination attempt when the attackers shoot at my car, my father passed away and couldn’t survive this big shock.
    On 22/10/2014 the terrorists attacked my place; they searched it and took some photos for me with [a Person], also some appreciation letters (I used to work with [a foreign Employer] and [do a job task]). I also used to sleep in [Locations]. I faced death threats after [doing a job task] in Baghdad, I have been shot in the [Body part 2] and was rushed to [Hospital 2] for treatment
    91. What do you think will happen to you if you return to that country(s)?
     “I will face assassination by the hands of the armed terrorist militias members and extremist armed groups as it happened to my colleagues the Iraqi and foreigners [Occupation 1s].”
    92. Did you experience harm in that country(s)?
     “Yes”
    “I fear returning to Iraq because of the kidnap and killing attempts by the hands of ISIL supporters and some extremist armed militias members. I faced death threats through letter stating, “Your turn to die is coming soon as you work in the [Employer] affiliated with the unfair government”, inside the letter I found a bullet. I reported this matter to the police. I faced assassination attempt and got injured in the [Body part 1] as a result at [an] area in Baghdad. I have been rushed to [Hospital 1]. Before my travel to Australia, I faced assassination attempt when the attackers shoot at my car, my father passed away and couldn’t survive this big shock.
    On 22/10/2014 the terrorists attacked my place; they searched it and took some photos for me with [a Person], also some appreciation letters (I used to work with [a foreign Employer] and [do a job task]). I also used to sleep in [Locations]. I faced death threats after [doing a job task] in Baghdad.”
    93. Did you seek help within the country(s) after the harm?
     “Yes”
    “I reported this matter to the police”
    94. Did you move, or try to move, to another part of that country(s) to seek safety?
    [No response was provided]
    95. Do you think you will be harmed or mistreated if you return to that country(s)?
     “Yes”
    “The terrorist armed militias especially the ISIL militants and supporters”.
    96. Do you think the authorities of that country(s) can and will protect you if you go back?
     “No”
    “The Iraqi authorities are unable to protect me, they are in fact unable to protect themselves from bombings, assassinations and kidnap.”
    97. Do you think you would be able to relocate within that country(s)?
     “No”
    “I will face assassination by the hands of the armed terrorist militias members and extremist armed groups as it happened to my colleagues the Iraqi and foreigners [Occupation 1s].”

12. On 16 July 2015 the delegate of the Minister found the applicant was owed protection as a refugee. On 30 September 2015 he was granted a protection visa.

13. On [Day 1] December 2015, the applicant departed Australia and on his outgoing passenger card he stated he would be travelling to Iran for a period of two months. [In] June 2016 the applicant arrived back in Australia and declared on his incoming passenger card he had been in Iran. The stamps in his Australian Titre de voyage recorded that he travelled to Iran. The applicant has also presented his Iraqi passport for inspection. There are no stamps recording his entry to Iraq or his exit from that country.

14. On [Day 3] December 2015 the applicant lodged an application for a Combined Partner (subclass 309/100) visa application for his spouse [Ms A], an Iraqi citizen. [Ms A] completed the form 80 “Personal particulars for assessment including character assessment”. In this form [Ms A] declared she did not hold a current passport or travel document, had not previously been issued a travel document and had never travelled outside of Iraq.   

15. On 15 September 2016 [Ms A] advised the Department that she had given birth to a child [Child 1] on [Date 3]. [Ms A] did not declare that she had travelled to Iran.

16. On 7 June 2017 an officer from the Department contacted [Ms A]. At that time, she advised that she had met the applicant in Iran in 2016 and she later discovered she was pregnant with [Child 1] and that she could not recall the dates of her travel to Iran. On 29 June 2017 [Ms A] provided a scanned copy of her Iraqi passport ([Number 1]) issued in Baghdad on [Day 4] December 2015 and valid until [2023]. This passport did not contain any evidence to indicate she had used it to travel into Iran.

17. [In] June 2017 [the applicant] departed Australia again and declared on his outgoing passenger card he would be travelling to Iran. [In] December 2017 he arrived back in Australia and was interviewed by an officer from the Department. During this interview he advised he had visited his wife, mother and three children in Tehran and his brother in Mashad. At the time of this interview, he had in his possession various documents including medical certificates related to his brother’s [medical] problems; an Iraqi driver’s licence; and a bank card from [Bank].

18. In the NOICC sent to the applicant on 9 March 2018 (the first NOICC) the Department alleges that he was in Iraq for the period between December 2015 and June 2016. On 16 April 2018 the applicant responded to the NOICC. In response to the NOICC, the applicant denied that he had travelled to Iran and provided a copy of a biodata page of passport belonging to his wife and pages of that passport that contained an Iranian visa and travel stamps which indicated that she had travelled to Iran on [Date 6] December 2015.

    Does each notice comply with the requirements in s.107? 

    The first notice

19. In the present case, no issue has been raised by the applicant or his representative as to whether the notice issued by the Minister’s delegate on 9 March 2018 complied with s.107.  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 second notice

20. No issue has been raised by the applicant or his representative as to whether the notice issued by the Minister’s delegate 1 June 2018 complied with s.107.  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 notices?

21. 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 first s.107 notice was non-compliance with section 101(b) of the Act. The non-compliance identified and particularised in the second s.107 notice is non-compliance with section 107(2) of the Act.

    The first Notice of intention to consider cancellation (‘the first NOICC’)

22. On 9 March 2018 [the applicant] was sent a Notice of Intention to Consider Cancellation under s109 of the Act in relation to his Protection (subclass 866) visa granted on 30 September 2015. This NOICC alleged that the applicant provided incorrect information in his application for a protection visa resulting in non-compliance with s 101(b) of the Act, which requires that a non-citizen fill in or complete his application in such a way that no incorrect answers are given or provided.[1] 

    [1] By operation of s99 of the Act 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.

23. The NOICC noted that in his protection visa application [the applicant] claimed to be [an Occupation 1] working for [Employer 1]. The NOICC alleged that although [the applicant] claimed to have travelled to Iran from [Day 1] December 2015 to [June] 2016, and had not travelled to Iraq, there was evidence before the Department that indicated he had returned to Iraq.

24. The NOICC relied on the following evidence to support the allegation that the applicant had returned to Iraq.

    ·On [Day 1] December 2015, [the applicant] departed Australia and indicated on his outgoing passenger card that he would be travelling to Iran for two months.

    ·In the partner visa application, lodged on [Day 3] December 2015, [Ms A] declared she did not have a passport and had not travelled outside of Iraq.

    ·The applicant’s third son, [Child 1], was born on [Date 3] and, assuming he was born to term, this indicated [Child 1] was conceived in December 2015.

    ·On 29 June 2017, [Ms A] provided a scanned copy of her Iraqi passport ([Number 1]) to the Department. This passport was issued in Baghdad on [Date 4] December 2015 and was valid until [2013]. The passport did not contain any evidence that indicated that she had travelled to Iran.

25. The NOICC noted: there was no evidence that [Ms A] had not travelled outside of Iraq,  that [the applicant] was the father of [Child 1], and it appeared [Child 1] was conceived in December 2015.

26. The NOICC alleged that [the applicant] returned to Iraq some two months after the grant of his protection visa in September 2015 seemingly without harm.

27. The NOICC also records that the applicant departed Australia [in] June 2017 and returned to Australia [in] December 2017. He advised that during this period he had visited his wife, mother and three children in Tehran and his brother in Mashad. At the time he re-entered Australia, he was carrying an Iraqi driver’s licence and a bank card from [Bank], which is an Iraqi bank with no overseas branches. The NOICC alleges that the fact he was carrying these documents suggested that he travelled to Iraq.

28. Based on the above evidence, the NOICC alleged that the applicant voluntarily returned to Iraq ‘on at least one occasion for a period of up to six months’ after he was granted a protection visa. The non-compliance identified in the first NOICC was particularised as follows:

    Approximately two months after the grant of your visa, you departed Australia and declared you were travelling to Iran. It appears, however, you travelled to Iraq the country that you claimed you could not return to due to fears you would be killed.

    Your Protection visa was granted on the basis that you satisfied the Minister you engaged Australia’s protection obligations under the Refugees Convention. You claimed that he was known to members of ISIL and other militia groups and they would kill him if he returned to Iraq. You claimed that because of these fears he could not return to Iraq and required Australia’s protection. These claims were fundamental to the determination you are a person to whom Australia has protection obligations. I consider you provided incorrect information in response to questions 90, 91 and 95 as follows:

    ·In response to question 90 which asks “Why did you leave that country” you stated you left Iraq because you feared harm from members of ISIL and other militia groups, that you were known to them and he could not return. This information appears to be incorrect as you since returned to Iraq on a least one occasion for up to six months without apparent harm or issue. This does not appear to be consistent with an individual who fears for his safety.

    ·In response to question 91 which asks “What do you think will happen to you if you return to that country” you stated you would face assassination from members of ISIL and other militia groups. This information appears to be incorrect as you have since returned to Iraq on a least one occasion for up to six months without apparent harm or issue. This does not appear to be consistent with an individual who fears for his safety

    ·In response to question 95 which asks “Do you think you will be harmed or mistreated if you return to that country” you stated you would be harmed by members of ISIL and other militia groups. This information appears to be incorrect as you have since returned to Iraq on at least one occasion for up to six months without harm or issue. This does not appear to be consistent with an individual who fears for his safety.

    You stated you feared harm from ISIL members and other militia groups in Iraq and you therefore could not return. You subsequently returned to Iraq, shortly after the grant of your Protection visa as is evidenced by your wife’s pregnancy. As this information was material to the determination you are owed protection, it appears you do not hold that adverse profile you claimed, and you may not have engaged Australia’s protection obligations.

    I therefore consider you have not complied with section 101(b) of the Act because you provided incorrect answers in his application for a Protection visa.

    Response to the first NOICC

1. In his response to the NOICC on 16 April2018, [the applicant] denied that he had returned to Iraq since obtaining a protection visa. In a statutory declaration signed on 11 April 2018 he stated:

   ‘On [Day 7]-12-2015, [Ms A] left Iraq to Iran using the Iraqi passport [Number 2]..’

2. In support of this statement the applicant provided a document, entitled ‘[Ms A]’s missing passport’, containing a scanned copy of the bio data page of an Iraqi passport with the following details:

   Passport No: [Number 2]
   Name: [Given names A]
   Surname: [Surname A]
   Nationality: Iraqi
   Sex: F
   Date of Birth: [Date 2]
   Place of Birth: IRQ
   Mother: [Ms B]
   Date of Expiry: [2023]
   Date of Issue: 2015-12-[Day 2]
   Issuing Authority: Baghdad

3. The applicant also provided a scan of page 13 of the passport [Number 2] which purportedly contained a departure stamp for Iraq dated [Day 7]/12/2015 and an entry stamp for Iran. This document also included an Iranian visa, purportedly issued to the passport holder, and issued on the same passport. This visa states it is valid from [Day 5] December 2015 to 27 January 2015 and has validity period of 90 days.

4. In his statutory declaration dated 11 April 2018 the applicant declares that in the partner visa application his wife incorrectly declared that  she had never been issued with a passport or travelled outside of Iraq. He states that when his wife provided a new Form 80 to the Department on 8 September 2016 (after their third child, [Child 1], was born in Iraq on [Date 3]) she did not declare her travel to Iran because she feared that she would have to explain “what happened in reality” and that “it was an honest mistake” caused by her severe “anxiety about the processing of her partner visa application”.

5. The applicant claimed that on [Day 4] December 2015, [Ms A] was issued Iraqi passport [Number 1] from the Alkadhimiyah office. In her application for Combined Partner (subclass 309/100) visa, which was completed on [Day 3] December 2015, [Ms A] had declared that she did not have a passport as it had not yet been issued to her. As such she only provided details of the children’s passports.

6. The applicant declares  that his wife was issued with a second Republic of Iraq passport ([Number 2]) in Baghdad on [Day 2] December 2015, which was valid until [2023] and that she had used this second passport ([Number 2]) to travel to Iran on [Day 7] December 2015. However, he claimed this passport ([Number 2]) went missing or had earlier been misplaced and that his wife was told by the “passports department” in Baghdad that because she was not at fault, another passport would be issued to her.

7. The applicant claims that his wife was issued with Republic of Iraq passport ([Number 1]) in Baghdad on [Day 4] December 2015 and valid until [2023]. After she received this passport on [Day 5] December 2015 her brother, [Mr C], attended the general directorate of the passports office in Baghdad to pick up his own passport. While he was there, he heard his sister’s name called out. He contacted [Ms A] to let her know. [Ms A] then attended the office in Baghdad later that day and was presented with the second ([Number 2]) that the applicant claims had been misplaced by the authorities. The passport had somehow been transferred to the Baghdad office instead of the Alkadhimiyah office.

8. The applicant states that on [Day 5] December 2015  [Ms A] took possession of passport [Number 2] without saying anything, as she was afraid that someone will use her passport for illegitimate purposes. He claims that, at this time, she was already in possession of a Republic of Iraq passport ([Number 1]). [The applicant] submits his wife took this second passport ([Number 2]) because she feared that if she did not accept it, someone else might use it for an illegitimate purpose and that the “government administrative procedures are very poor” in Iraq.

9. The applicant states that on [Day 7] December 2015 [Ms A] left Iraq using passport [Number 2]. He claims that she decided to use this passport because she was anticipating the Australian embassy in Amman would request the original passport be sent to them, so she left it in Baghdad. He claims [Ms A] decided that using the passport that had been reported missing would be less likely to disrupt her visa application, as such she decided to use passport [Number 1] for her application and passport [Number 2] for travel to Iran.

10. The applicant claims that [Ms A] was in Iran with him between [Day 7] December 2015 and [March] 2016 and during this period their two infant children stayed in Baghdad. He claims that [in] March 2016, when [Ms A] returned to Iraq via Baghdad International Airport, she was stopped by Iraqi authorities. The authorities seized [Ms A]’s passport ([Number 2]) because she had since been issued a new passport but allowed her to enter Iraq.

11. On 8 September 2016, [Ms A] provided a completed form 80 to the Department in relation to her partner visa application. The applicant claims that she did not declare her travel to Iran because she was afraid that doing so would delay the processing of her partner visa application.

12. The applicant’s response to the NOICC was accompanied by a scanned copy of the biodata page of  passport [Number 2] purportedly issued to [Ms A] on [Day 2] December 2015.  A wet stamp contained in this passport ([Number 2]) suggests that [Ms A] departed Iraq on [Day 7] December 2015. A copy of this passport ([Number 2]) also contains the page of the passport with a purported visa to Iran valid from [Day 6] December 2015 to 26 January 2016.

13. The applicant claims that his mother travelled to Iraq in January 2016. [The applicant] also provided a copy of his mother’s Republic of Iraq passport ([Number 3]) issued [in] 2013 and valid until [2021] which contains a wet stamp from Iraq indicating that his mother departed Iraq [in] January 2016. This passport also contains a visa label to Iran, which is valid from 4 January 2016 until 3 April 2016.

14. On [Date 3] [Ms A] gave birth to her son [Child 1] in Iraq. The applicant is [Child 1]’s father.

15. [In] June 2017, the applicant travelled to Iran and returned to Australia [in] December 2017. [Ms A] and their children [Child 3], [Child 2] and [Child 1] joined the applicant in Iran [in] October 2017.He claims that before [Child 1] travelled to Iran with his mother and siblings in 2017 he was kidnapped on 5 September 2017 and released 10 days later on 15 September 2017. The applicant provided copies of his Australian Titre de Voyage ([Number 6]) and the biodata page of [Ms A] passport [Number 1].

    The second notice of intention to consider cancellation (‘the second NOICC’)

16. The Department referred the second passport ([Number 2]) to the Document Examination Unit(DEU). On 7 May 2018, the DEU determined that this passport ([Number 2]) was “fraudulently generated”.

17. On 1 June 2018, the applicant was sent a second NOICC that identified non—compliance with s 107(2) of the Act. Section 107(1) provides that 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 the section, the Minister may give the visa holder a notice. Relevantly, section 107(2) provides that:

    If the visa holder responds to the notice, her or she must do so without making any incorrect statement.

18. The non-compliance particularised in the NOICC was that the applicant had not complied with s 107(2) of the Act when he made the following statement in response to the NOICC issued on 9 March 2018

    ‘On [Day 7]-12-2015, [Ms A] left Iraq to Iran using the Iraqi passport [Number 2].’

19. The second NOICC alleges that this statement is incorrect because the scanned copy of the passport [Number 2] was found by the DEU to be fraudulently generated. The Department found that his  wife could not have travelled to Iran on that fraudulently generated passport.

    The applicant’s response to the second NOICC

20. On 4 June 2018, the applicant denied that he had provided incorrect information in response to the NOICC.  [Mr A] stated that his wife used her genuine passport ([Number 2]) for her travel to Iran [in] December 2015. It is submitted [Ms A] also used this passport when she re-entered Iraq [in] March 2016. The applicant claimed that on arrival in Iraq [in] March 2016, this passport  ([Number 2]) was confiscated by an “airport customs officer”. [The applicant] submits his wife used this second passport ([Number 2]) for her travel to Iran because she wanted to present her other passport ([Number 1) to the Department in connection with her Combined Partner visa application.

    International Treaties Obligations Assessment

21. On 27 March 2019, the applicant was invited to provide submissions in relation to ITOA assessment. On 17 September 2019 he was invited to comment in writing on adverse country information and issues put to him the two NOICCS sent to him in March and June 2018. At this time, it was put to the applicant that there was information before the Department that suggested that after he departed Australia he had travelled to Iran and taken out temporary residence in Iran and then crossed the border into Iraq as a deliberate strategy to hide his movements and that he had been seen [doing a job task]. The applicant was also asked to provide evidence of where he resided during his two trips to Iran and how he supported himself financially.

22. On 27 September 2019, the applicant made submissions in response to the ITOA letter. The applicant claimed two of his children ([Child 3] and [Child 1]) had been kidnapped and then released. He claimed [Child 3] was kidnapped on 26 June 2019 and released the next day and his son, [Child 1], was kidnapped on 5 September 2017 and released on 15 September 2017. He claimed the alleged kidnappers wanted to target him and cause him pain. He claimed his wife and children were currently residing in Kurdistan. He provided various documents in support of these claims, including police reports.

23. On 2 July 2020, the ITOA delegate concluded that the applicant was not owed non-refoulement obligations. The ITOA delegate accepted that the applicant is an Iraqi citizen who resided in Baghdad before he arrived in Australia [in] January 2015. The ITOA delegate found his claims that his children had been kidnapped and then freed not credible. Given the ease with which fraudulent documents could be manufactured and the fact that the scanned copy of his wife’s allegedly genuine passport ([Number 2]) had been found to be fraudulently generated, the delegate considered no weight could be placed on the documents he had provided to support his claims. The ITOA delegate accepted that the applicant worked as [an Occupation 1] for [Employer 1] in the past. The delegate found that the applicant returned to Iraq on at least one occasion for up to seven months and, by doing so, demonstrated he and his family could reside safely in Iraq.

    Further submissions in response to the first and second NOICC

24. On 31 July and 3 August 2020, the applicant provided further information and documents to the Department. These documents include: three documents described as medical receipts for [Ms A]’s appointments with a midwife in Iran; a letter from Manager of [a  Bank  Branch] dated 28 July 2020 stating no money has been deposited in the bank account [Number] since December 2020 and that he holds a key card linked to this account; Flight booking receipts from [Airline] for [the applicant], his wife [Ms A] and his brother [Mr D], booking for transit from Mashhad to Tehran on 21 January 2016; accommodation receipts for [Residential Units] for the applicant, his mother, his brother [Mr D] for the period 5 February – 16 March 2016 and for the period 21 June to 21 December for  the applicant, his wife, and their three children.

    The delegate’s decision to cancel the visa

25. On 12 October 2020, the delegate decided to cancel the visa. The delegate was satisfied that the applicant ‘ had returned to Iraq approximately two months after he was granted a protection visa without apparent harm or issue’. The delegate found that the passport the applicant claimed his wife used to travel to Iraq was a fraudulent document and gave weight to the findings of the DEU. The Department therefore considered that [Ms A] did not travel to Iran in December 2015 and instead the applicant travelled to Iraq. This is evidenced by the conception of the applicant’s child who was born in [2016].

26. Having concluded the applicant had returned to Iraq in December 2015, the delegate was then satisfied that he provided incorrect information in his protection visa application, specifically that he feared he would be harmed and face assassination from members of ISIL 4and other militia groups upon return to Iraq. The delegate did not consider that there was sufficient information to support the conclusion that the applicant returned to Iraq in 2017. Having concluded the grounds for cancellation were made out, the delegate then exercised her discretion to cancel the visa.

    Evidence before the Tribunal

27. The applicant appeared before the Tribunal on 30 November 2021 to give evidence and present arguments. The Tribunal received extensive post-hearing submissions, which it has considered. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by his registered migration agent. The Tribunal accepts that the applicant suffers from depression and anxiety. The Tribunal  has taken this into account in assessing the credibility of his evidence to the Tribunal.

28. At the hearing the Tribunal put information that is the subject of the non-disclosure certificates to the applicant in accordance with its obligations under s 424AA of the Act and where relevant his evidence about these issues is discussed further below in the findings and reasons. The applicant was questioned about the circumstances in which he claims his wife acquired two valid passports and how the applicant came to obtain a copy of the passport [Number 2]. Where relevant the applicant’s evidence is discussed further below.

29. Following the hearing, the Tribunal received extensive post hearing submissions pages. In addition to the submission by the applicant’s representative, the Tribunal has considered a statutory declaration from the applicant dated 2 December 2021 in which he maintains he did not return to Iraq.[information deleted][2] He states believe the source of information about his alleged travel to Iran was a couple who work for the same [employer] as him and who fabricated the information because he had exposed as false claims that they had made to the [employer] for money.

    [2]

30. The applicant has also provided a statement of attainment for the applicant from [Education provider] for completion of [a course] dated 15 June 2021; a notice of assessment from Australian Taxation Office for the financial year 2020-2021; various character references from members of the Australian community; and information relating to his medical conditions and treatment, including records of medication prescribed to the applicant for depression and anxiety.

31. The applicant also provided translations for entry and exit stamps on his Australian Titre de Voyage and his Iraqi passport [Number 4] (these stamps indicate he travelled to Iran in 2012). The applicant also provided translations for the entry and exit stamps on the passports of his wife (passport [Number 1]), three children and brother, which indicate his family members travelled to Iran in 2017. 

32. The applicant also provided the translations of the entry and exit stamps for passport [Number 2] which was purportedly issued to [Ms A] and which he claims she used in 2015 to travel to Iran. The translations record the date of entry as [Day 7]/12/2015 and the date of exit as ‘[not available]’. It also records that the visa was issued by the Islamic Republic of Iraq, Karbala, and is valid from [Day 6]/12/2015 – 26/2/2016 for a duration of ’90 days’. The Tribunal notes the dates that are visible in Roman numerals indicate the passport is valid from [Day 6]/12/2015 – 26/1/2016 for a duration of 90 days and valid for one entry and the date of departure from Iraq was [Day 7]/12/2015.

33. The most recent DFAT report on Iraq published in August 2020 contains the following information about passports:

    The Ministry of Interior’s Passports Directorate issues ‘A’ series passports to ordinary passport holders; ‘D’ passports to diplomatic staff; ‘C’ passports to officials; and ‘E’ series passports to government service staff. Applicants must present their national ID card, Certificate of Iraqi Nationality, residency card, two photographs, the national ID card of their guardian (if the applicant is a minor), and a IQD10,000 (AUD13) fee. All applicants must appear in-person to apply for their passport, regardless of age. The processing time is one week.

    The current ‘A’ series passports and the previous ‘G’ series passports are of an international standard with good security features, including a hologram image and seal and water marks. ‘S’ series passports (issued between 2003 and 2006) are more vulnerable to fraud, and inexpensive counterfeit versions are reportedly available in Iraq. While the current ‘A’ series passports have good security features, the supporting documents listed above can be vulnerable to fraud and counterfeit, increasing the risk of the passports being obtained on the basis of counterfeit documentation.

34. DFAT also reports that in Iraq ‘[l]aw and custom do not generally respect freedom of movement for women. Women require the consent of a male guardian or legal representative to apply for a passport, and for identification documents necessary for accessing public services, food assistance, health care, employment, education and housing’. DFAT also reports that ‘fraudulent documents are reportedly commonly and cheaply available’.[3]

    [3] DFAT Country Information Report, Iraq, 20 August 2020.

    ANALYSIS AND FINDINGS

35. The Tribunal has considered whether there is non-compliance in the way described in (a) the first s.107 notice and (b) the second s.107 notice. The scope of the Tribunal’s review is restricted to whether there was non-compliance in the way described in the s.107 notice, rather than just deciding whether there was non-compliance. It is not open to the Tribunal to decide whether there was non-compliance other than that particularised in the s.107 notice.

36. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context. However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal). A visa cannot be cancelled simply because the decision-maker has identified a possible ground of cancellation or instance of non-compliance which the visa holder has not been able to rebut.[4] Having identified possible facts which could give rise to the cancellation power, the Tribunal must go on to be satisfied of those facts before the cancellation power is enlivened. In forming a state of satisfaction, the decision-maker must ‘feel an actual persuasion – an inclination of the mind towards assenting to, rather than rejecting, a proposition’.[5]

    [4] Zhao v MIMA [2000] FCA 1235, at [32].

    [5] Plaintiff M64/2015 v MIBP (2015) 90 ALJR 197 at [64], referring to Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 and George v Rockett (1990) 170 CLR 104 at 116.

37. To find that non-compliance or a ground is made out, the Tribunal must be reasonably satisfied that the non-compliance occurred or that the ground for cancellation exists. ‘Reasonable’ in this sense means that the Tribunal’s conclusions must be based on logically probative material.[6]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; and that it might express more caution in evaluating the factual foundation for more centrally relevant facts.[7] 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]

    [6] See e.g. MIEA v Pochi (1980) 44 FLR 41 at 62.

    [7] Sullivan v CASA (2014) 226 FCR 555 at [120]

    [8] Sullivan v CASA (2014) 226 FCR 555 at [121], referring 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…’.

    Did the applicant return to Iraq in 2015?

1. The first NOICC alleges that the applicant returned to Iraq in December 2015 for up to six months and that this reveals that he provided incorrect information in his protection visa application in way particularised in the first NOICC. The second NOICC alleges that he made an incorrect statement in contravention of s 107(2) of the Act when he stated that his wife travelled to Iran on [Day 7] December 2015 using passport [Number 2].

   The applicant’s travel documentation

2. [The applicant] arrived in Australia [in] January 2015. [The applicant] has submitted a copy of his Republic of Iraq passport ([Number 4]) issued in Baghdad [in] 2010 and valid until [2018]. He also provided a copy of his Australian Titre de Voyage ([Number 5]) issued [in] 2015 and valid until [2017]. [The applicant]’s Republic of Iraq passport ([Number 4]) contains a wet stamp from Iraq indicating he departed Iraq [in] January 2015. There are no entry or exit stamps contained in this passport ([Number 4]) to indicate that [the applicant] had used it to enter or depart Iraq at some later date.

3. [The applicant] departed Australia on [Day 1] December 2015 and re-entered Australia [in] June 2016. [In] June 2017 [the applicant] again departed, re-entering Australia [in] December 2017.[9] [The applicant]’s Australian Titre de Voyage ([Number 5]) contains a visa to Iran valid from 6 November 2015 to 4 February 2016. It also contains a second visa to Iran valid from 21 March 2017 to 19 June 2017. The Tribunal accepts that neither [the applicant]’s Republic of Iraq passport ([Number 4]) nor his Australian Titre de Voyage ([Number 5]) contains any evidence that he used it to enter or depart Iraq after his first arrival in Australia [in] January 2015.

   The birth of the applicant’s third child in Iraq in [2016]

   [9] These findings are consistent with [the applicant]’s Australian Titre de Voyage ([Number 5]) and the Departments movement records.

4. The Tribunal finds that [Ms A] gave birth to her third child, [Child 1], in Iraq on [Date 3].The fact that the applicant is the father of [Child 1] is not in dispute. Thus, the question arises of where [Child 1] was conceived. In the course of applying for a partner visa  in 2016 [Ms A] declared she had never travelled outside of Iraq and, when she provided her passport to the Department in 2017,  it showed that it was issued in Baghdad [in] 2015 and there was no evidence (in the form of entry and exit stamps and visa labels) that she had travelled to Iran in 2015 or 2016.

5. In response to the NOICC, the applicant claims his wife travelled to Iran on [Day 7] December 2015 and provided a copy of a biodata page of a previously undeclared passport which he claims was issued to his wife in December 2015. He has also provided a convoluted statement about why the existence of passport [Number 2], which was purportedly issued on [Day 2] December 2015, was not disclosed in the partner visa application, or in September 2016, when his wife provided a new form 80 to the Department following the birth of her third child on [Date 3] or in June 2017 when [Ms A] provided a copy of passport [Number 1] to the Department.  

   Did the applicant’s wife travelled to Iran on [Day 7] December 2015 using passport [Number 2]?

6. The Tribunal has the following concerns about the veracity of the applicant’s statement that his wife travelled to Iran on passport [Number 2].

7. The DEU examined the scanned copy of the biodata page of passport [Number 2] and concluded it was fraudulently altered or counterfeit. The Tribunal explained that if it were to rely on the DEU report’s conclusion the Tribunal would conclude that he provided an incorrect statement when he stated that his wife travelled to Iran using passport [Number 2] on [Day 7] December 2015. The Tribunal explained that, subject to his comments, this information would be a reason or part of the reason for affirming the decision under review.

8. The applicant claims that the original passport cannot be produced as it was seized by the Iraqi authorities upon his wife’s return to Iraq. With respect to the weight that the Tribunal should place on the DEU report, the applicant’s representative  referred the Tribunal to the Department’s PAM procedures, which note the limitations of relying on document examination of non-original documents as security features are not available for testing, and submitted consideration should be given to the limitations of relying on the examination of a non-original document ‘and/or it may be that the passport was issued with some irregularity by the Iraqi government due to lack of quality testing [of A series passports’].

9. The applicant submits that ‘administrative oversight’ explains why the Iraqi authorities would issue two valid passports to the same woman in the same month or that lack of quality testing can explain the production irregularities that led the DEU to conclude the document presented by the applicant was fraudulently generated is not supported by the country information about the  procedures for the issuance of A series passports to ordinary passport holders. Landinfo reports that when submitting an application, the applicant is given a receipt that must be presented when the passport is collected and when the passport is collected, the applicant’s fingerprints are checked against the fingerprints that were given when the application was submitted.[10] Each passport has a security feature that makes it unique.[11]

   [10] Norway: Landinfo - Country of Origin Information Centre, Iraq: Travel documents and other identity documents, 16 December 2015, p.8

   [11] Canada: Immigration and Refugee Board of Canada, Iraq: Availability of fraudulent identification documents, including passports, national identity cards, certificates of nationality and birth certificates; state efforts to combat fraud (2014-January 2016), 18 February 2016, IRQ105418.E.

10. The Tribunal considers the claim that [Ms A] was issued two valid passports in December 2015 lacks plausibility in the context of country information about the procedures for issuing passports. At the Tribunal hearing the applicant suggested that the passport his wife used to Iran was issued by mistake. He said she waited a while and made a second application and then she went to the passport office and her name was called while the second application for the passport was still in process. He claimed that they stayed at hotel in Qom while she was in Iran. When asked why he spent so long in Iran in 2015-2016. He said he was a bit stressed and mentally not feeling well; he met his wife and mother while he was there and did some worked as [an Occupation 2].

11. The Tribunal does not accept the applicant has credibly explained how his wife came to be issued with two valid passports in one month. The Tribunal found the account of how [Ms A] obtained the second passport (her brother overhead her name being called in the Baghdad passport office and, as a result, she attended the passport office and collected her second passport on the same day) lacks plausibility and is inconsistent with country information about the procedures for issuing passports.

12. The Tribunal is satisfied that it is appropriate to place adverse weight on the report of the Document Examination Unit and its conclusion that the scanned copy of the passport is fraudulently generated.  The Tribunal has considered the submissions made by the applicant’s representative. The Tribunal is satisfied that the DEU examiner reached the conclusion the document was fraudulently generated because of production irregularities that were observable on the scanned copy of the passport. The DEU report states that the document examined was a scanned copy of the passport biodata page  concluded that, based on the examination of this document, that the only reasonable proposition was the document was fraudulently generated. 

13. The Tribunal finds the applicant’s statement that his wife travelled to Iraq is inconsistent with the information provided at the time the partner visa application was lodged in December 2015 and the information on the passport she provided to the Department in connection with that application. The Tribunal is particularly concerned that:

    ·In her application for Combined Partner (subclass 309/100) visa, which was completed on [Day 3] December 2015, [Ms A] had declared that she did not have a passport as it had not yet been issued to her. As such she only provided details of the children’s passports.

    ·The applicant submits that when his wife provided updated information to the Department on 8 September 2016 (following the birth of her third child, [Child 1], on [Date 3]) she did not declare her travel to Iran because she feared she would have to explain ‘what happened in reality’.

    ·In June 2017 the applicant provided a copy of Iraqi passport number [Number 1] issued on [Day 4] December 2015 but did not disclose that she had previously had another Iraqi passport that she had used to travel to Iran in 2015.

14. The applicant now submits that sometime in 2015 his wife applied for passports for herself and her children. After submitting her application, she was advised by the passport authority that her passport had been misplaced but she could collect her children’s passport (these passports were issued on [Day 2] December 2015). The applicant claims his wife was issued with a second passport on [Day 2] December 2015 but was not able to collect it on that date as it was misplaced, and she was told by the passport department in Baghdad that another passport would be issued to her.

15. Country information indicates that women require permission of a male guardian to obtain a passport. [12]  In his response to the NOICC the applicant did not explain how his wife and children obtained passports in his absence. In evidence to the Tribunal, the applicant said he made a power of attorney for his brother [Mr D] so that his children could get passports and his wife relied on her father to get the passport. The applicant was questioned about how his wife came to have two passports and he told the Tribunal that one passport was taken off her after she travelled to Iran. The applicant told the Tribunal that his wife provided him with the copy of the passport she used to travel to Iran. She still had the copy of the passport because it was given to her by a hotel that they stayed at in Iran. He could not remember the name of the hotel.

    [12] DFAT Country Information Report, Iraq, 20 August 2020.

16. The applicant was asked about why his wife did not declare her second passport or the fact she had travelled to Iran in the information she provided to the Department in relation to her partner visa application. The applicant said her concern was that if she had an Iranian visa stamp on her passport, she would not be able to travel to any other country. The Tribunal finds this explanation unconvincing and different from the explanation provided in the response to NOICC (see paragraph 36 of the decision record).

17. The applicant gave evidence that while his two young children were issued passports on [Day 2] December 2015, his wife left their children in Iraq between [Day 7] December 2015 and [March] 2016 and travelled to Iran to visit him while their children remained in Baghdad. The applicant told the Tribunal he left Australia in December 2015 because he was mentally not well, and he wanted to see his family as his mother was unwell. His evidence was he went to Qom, Tehran and Mashad and he spent the most time in Mashad and his wife travelled to Iran for two and half months. Given the applicant’s two infant children were in possession of Iraqi passports issued on [Day 2] December 2015 at this time, the Tribunal asked why they did not accompany their mother to Iran and the Tribunal was told that he was stressed, and he was concerned about his children’s health as it was cold in Iran.

18. The Tribunal finds that the claim, made in response to the NOICC, that [Ms A] travelled to Iran is: (a) inconsistent with the information she provided to the Department in connection with her partner visa application and (b) inconsistent with the information recorded in passport [Number 1] which was issued in [Ms A]’s name on [Day 4] December 2015. The Tribunal finds that the applicant has also been unable to credibly explain how his wife came to be issued with two valid passports in December 2015. The Tribunal founds his evidence about why she did not disclose her travel to Iran or the fact that she had been issued a second passport to the Department contrived and unpersuasive. Having regard to the fact that fraudulent documentation is readily available in Iraq, the Tribunal gives no weight to the documents that purportedly show his wife visited a midwife in Iran in March 2016 or the accommodation bookings, and flight receipts.

    The anonymous allegation that the applicant returned to Iraq

19. The Tribunal has considered an anonymous allegation that the applicant returned to Iraq after entering Iran in 2015 and commenced working as [an Occupation 1]. The Tribunal put the gist of the dob-information to the applicant pursuant to s 424AA of the Act. It is not possible for the Tribunal to test the veracity of this claim and for these reasons the Tribunal would not ordinarily place weight on an anonymous allegation. In the present case, the Tribunal does not base its findings in this case on an anonymous allegation. The Tribunal notes, however, that the allegation the applicant returned to Iraq is consistent with the other evidence before the Tribunal (set about above) which, when considered in its totality, indicates that the applicant returned to Iraq in around December 2015.

    Conclusions

20. The Tribunal is satisfied that the applicant’s statement that his wife travelled to Iran on [Day 7] December 2015 is incorrect. The Tribunal finds the scanned copy of passport the applicant provided to the Department to support his statement that his wife travelled to Iran on [Day 7] December 2015 was fraudulently generated. The Tribunal finds the applicant’s account of how his wife obtained a second passport to be not credible and does not accept that she was issued a second passport in 2015 as claimed and rejects the claim that she used this passport to travel to Iran on [Day 7] December 2015.

21. The Tribunal finds that the applicant’s wife did not travel to Iran in 2015 or 2016 and her third-born son was conceived in Iraq in December 2015. As it is not in dispute that the applicant is the biological father of [Child 1], the Tribunal concludes that the applicant returned to Iraq on at least one occasion after departing Australia on [Day 1] December 2015 and before he re-entered Australia [in] June 2016. While the Tribunal is satisfied the applicant returned to Iraq in around December 2015, the Tribunal is unable to make a confident finding that the applicant remained in Iraq for up to seven months.

    Was there non-compliance of the type described?

    Did the applicant provide incorrect information in the way described in the first NOICC?

22. The Tribunal has therefore proceeded to consider whether it follows from its factual finding that the applicant returned to Iraq in 2015 that the applicant provided incorrect information in his protection visa application in the way particularised in the NOICC.

23. The Tribunal  is satisfied that the applicant returned to Iraq in December 2015. However, fact that the applicant may have returned to Iraq for a period between December 2015 and June 2016 is not sufficient to establish that the information the applicant provided in response to questions 91, 92 and 95 of his protection visa application is incorrect.

24. The delegate who cancelled the applicant’s visa concluded that he provided incorrect information when he claimed, in responses to questions 91, 92 and 95 in the protection visa application, that he feared being feared harm from members of ISIL and other militia groups, that he was known to them and he could not return. However, it is not in dispute that the applicant is [an Occupation 1] and the NOICC does not suggest otherwise.

25. The delegate who assessed the applicant’s protection claims found he was [an Occupation 1] who had been targeted for harm in Iraq because of his work as [an Occupation 1]. On 16 July 2015 the delegate who assessed his claims made the following findings of fact: testimony at interview in relation to the harm he fears in Iraq was largely forthright and credible, and generally consistent with his written statements and country information.

    The applicant claims that in Iraq he worked as [an Occupation 1] for [Employer 1], further claiming at interview that he worked as [an Occupation 1] [for Employer 2], and contributed to [something work-related]. At interview the applicant provided a plausible account of working as [an Occupation 1] in Iraq, and his claims are supported by the various [accreditation] and identity cards presented by the applicant, and [files] he has provided containing samples of his work. Furthermore I note that the applicant was issued a visa for Australia as [an Occupation 1] for [an Event]. Having considered the available information, I accept that the applicant has worked as [an Occupation 1] in Iraq.

    The applicant claims to have experienced threats and violence as [an Occupation 1] in Iraq, and at interview provided a plausible and consistent account of receiving death threats and being shot by armed groups. The applicant’s claims of being subjected to death threats and being shot at are consistent with country reports which indicate that [Occupation 1s] in Iraq are routinely exposed to threats, intimidation, violence and murder attempts. Accordingly I accept that the applicant has previously been subjected to threats and violence in Iraq.[footnotes omitted]

26. The evidence to which the delegate refers includes a disc with seven [files] in which the  delegate notes ‘the applicant can be seen [doing a job task] in two files, whereas the remaining files appear to contain images of people scuffling with [Occupation 1s] and people being mistreated’.

27. The first NOICC does not allege that he provided incorrect information about his occupation in Iraq. The applicant has provided a significant body of evidence about his work as [an Occupation 1]. Because of his experiences as [an Occupation 1] in Iraq, the applicant claimed to fear harm from non-state actors in Iraq. The NOICC does not make specific allegations that events the applicant described when he applied for a protection visa where he was subjected to threats and violence in Iraq because of his work as [an Occupation 1] did not happen. The delegate who decided the applicant was a refugee was satisfied the applicant feared persecution that involved serious harm to him, based on his imputed political opinion as [an Occupation 1]. The delegate accepted that the applicant had previously been subject to violence and threats in Iraq because of his work as [an Occupation 1]. The delegate accepted there was more than a remote chance of the applicant being seriously harmed in Iraq because of his work as [an Occupation 1] and therefore was satisfied there was a real chance the applicant would face persecution if he returned to Iraq.

28. For the reasons given above, the Tribunal is satisfied that the applicant returned to Iraq in or around December 2015 and the Tribunal is satisfied that his wife did not travel to Iran on [Day 7] December 2015 as claimed. The Tribunal is satisfied that the applicant returned to Iraq shortly after the grant of his protection visa, which raises questions about the credibility of his claims. However, the applicant has provided a significant body of evidence about his work as [an Occupation 1] and country information about the risks facing [Occupation 1s] in Iraq. In this respect, the Tribunal notes that DFAT assesses that ‘[issues experienced by Occupation 1s]’.[13]

    [13] DFAT Country Information Report, Iraq, 20 August 2020.

1. The Tribunal is satisfied the applicant has returned to Iraq on at least one occasion after being granted his protection visa. However, the Tribunal is unable to make confident findings about how long the applicant returned to Iraq for or how he conducted himself while in Iraq. The Tribunal cannot reach the requisite level of satisfaction to conclude that the applicant returned to Iraq for up to six months as it is possible that he may have remained in Iraq for a shorter period of time before returning to Iran and then travelling to Australia. While the applicant’s conduct in seeking to conceal his return travel to Iraq raises very serious concerns about his credibility as a witness and this, in turn, raises questions about the reliability of the information he has provided in his protection visa application, the existence of doubt is not sufficient to conclude that the information he provided in his protection visa application was incorrect.

2. In the Tribunal’s view it does not follow from the finding that the applicant returned to Iraq that he provided incorrect information about his fears of harm in Iraq. The Tribunal is therefore not satisfied that the applicant provided incorrect information in his protection visa application in response to question 91, 92, and 95.

3. For these reasons, the Tribunal finds that there was no non-compliance with s 101(b) 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. 

   Did the applicant provide an incorrect statement response to the first NOICC?

4. The Tribunal finds that the applicant provided an incorrect statement in response to the NOICC.  The Tribunal finds that the applicant provided an incorrect statement when he stated that on [Day 7]-12-2015 his wife left Iraq to Iran using Iraqi passport [Number 2]. In reaching this conclusion the Tribunal has placed weight on the DEU’s assessment that the passport was fraudulently generated, the applicant’s evidence about the circumstances in which his wife came to have two valid passports, his explanations for the inconsistency between the narrative he now relies upon and the information his wife provided in relation to her partner visa application. While the applicant claims his wife relied on her father to obtain consent to acquire a passport, the Tribunal considers it is possible that the applicant’s wife and his children acquired passports after the applicant had returned to Iraq.

5. The DEU report is limited to an examination of the scanned copy of the biodata page of the passport and does not comment on the visa label. The visa label does not record an entry stamp for Iraq.  The applicant claims the passport was seized by officials when his wife returned to Iraq, but they let his wife re-enter Iraq and she retained a copy of the biodata page of the passport given to her when she was staying at a hotel in Iran. The Tribunal finds it strains credulity that the Iraqi authorities would issue the applicant’s wife with two valid passports in the same month and its doubts are compounded by the inconsistency between the account of her travel history given by the applicant’s wife in the application for a partner visa and the applicant’s claims (made in response to the first NOICC) that his wife travelled to Iran on [Day 7] December 2015.

6. It is not in dispute that the applicant and his wife conceived a son in December 2015. The claims that his wife travelled to Iran on [Day 7] December 2015 on a passport issued on [Day 2] December 2015. However, this claim is inconsistent with the information that was provided about his wife’s travel history in the partner visa application, and it is also inconsistent with the information contained on the passport she provided to the Department in connection with that review. The Tribunal does not accept that [Ms A] failed to declare her travel to Iran because of anxiety about the processing of her partner visa application or because she believed having held an Iranian visa might compromise her partner visa application.

100.   The Tribunal is satisfied that the statement the applicant’s wife travelled to Iran on [Day 7] December 2015 using passport is incorrect. Fraudulent documentation is readily available in Iraq.[14] The Tribunal places weight on the DEU report that the scanned biodata page of the passport presented in support of his claim that his wife travelled to Iraq on [Day 7] December 2015 is counterfeit or fraudulently altered. The report is explicit about the fact that the finding is based on the examination of a scanned copy of a document and confident in its conclusions that the irregularities in the document lead to the conclusion that it is counterfeit or fraudulently altered.[15]  

[14] DFAT Country Information Report, Iraq, 20 August 2020.

[15] The Tribunal notes that the visa label does not contain a visible date of departure from Iran  for the applicant’s wife and records the period of validity is [Day 6]/12/ 2015 to /[01]/ 2016 and the duration as 90 days, while the translation of the visa label records the period of validity as [Day 6]/12/2015 to /[02]/2016 which may be a typographical error.

101.   The Tribunal also considers that the information contained in the passport [Ms A] provided to the Department in 2017 ([Number 1]) the applicant’s wife provided with partner visa application is consistent with the conclusion that she did not travel to Iran in December 2015. The Tribunal does not accept that the applicant has credibly explained how his wife came to be in possession of two passports in December 2015. The Tribunal is drawn to the conclusion that the applicant has provided incorrect information and a fraudulently generated document in the hope of persuading the Department that he did not return to Iraq and that his youngest son was conceived in Iran in December 2015.  

102.   The Tribunal is satisfied that after the applicant travelled to Iran in December 2015 he then travelled to Iraq to visit his family and that he was in Iraq when his youngest son was conceived. The Tribunal finds that [the applicant] returned to Iraq in December 2015 some two months after he was granted protection in Australia on 30 September 2015. While it is possible that he returned for a period of up to seven months based on the evidence before, the Tribunal can only reach the requisite level of satisfaction that the applicant returned to Iraq in December 2015.

103.   On the evidence before it, the Tribunal is prepared to accept that [the applicant]’s mother entered and exited Iran on this passport at some point after 5 January 2016. The Tribunal has also considered the documentation, in the form of travel bookings and receipts that suggest the applicant visited a midwife in Iran in support of his claims that his wife travelled to Iran. However, given the country information indicates that fraudulent documents are readily available in Iraq and the DEU’s opinion the passport issued by his wife is fraudulently generated, the Tribunal gives little weight to the documentation the applicant has provided in relation to flight bookings, accommodation bookings and midwifery appointments.

104.   Having considered all the evidence, the Tribunal is satisfied that the applicant’s wife did not travel to Iran in December 2015 as claimed and the statement made in response to the NOICC is incorrect.

105.   For these reasons, the Tribunal finds that there was non-compliance with s.107(2) of the Act by the applicant in the way described in the s.107 notice.

Conclusions on non-compliance

106.   The Tribunal finds that there was no non-compliance with s.101(b) of the Act in the way described in the s.107 notice issued  in March 2018.

107.   The Tribunal finds there was non-compliance with s 107(2) of the Act in the way described in the s.107 notice on 1 June 2018.

Should the visa be cancelled?

108. As the Tribunal has decided that there was non-compliance with s 107(2) of the Act in the way described in the notice on 1 June 2018 given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

109. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

·     the correct information

·     the content of the genuine document (if any)

·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

·     the circumstances in which the non-compliance occurred

·     the present circumstances of the visa holder

·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

·     any other instances of non-compliance by the visa holder known to the Minister

·     the time that has elapsed since the non-compliance

·     any breaches of the law since the non-compliance and the seriousness of those breaches

·     any contribution made by the holder to the community.

110.   As set out above, the Tribunal does not accept that there was non-compliance of the type particularised in the first notice. However, the Tribunal is satisfied that the applicant made an incorrect statement when he stated his wife had travelled to Iran on [Day 7] December 2015.  Therefore, there is non-compliance of the type described in the NOICC sent to the applicant on 1 June 2018.

The correct information

111.   The Tribunal considers the correct information is as follows:

·The applicant made an incorrect statement in response to the NOICC when he stated that his wife travelled to Iran on passport on [Day 7] December 2015.

·The correct information is that [Ms A] did not travel to Iran on [Day 7] December 2015.

112.   The applicant is a person who is willing to provide an incorrect statement to the Department and attempt to support this statement with a bogus document. It can be inferred from the correct information that the applicant travelled to Iraq in December 2015 and that his youngest son was conceived in Iraq.

113.   While the correct information raises serious concerns about the applicant’s credibility as a witness and his willingness to provide incorrect information to the Department. This reflects very poorly on his credibility and raises doubts about his credibility as a witness. However, these doubts are not sufficient to establish the information he provided in his protection visa application is incorrect.

The content of the genuine document

114.   This prescribed circumstance is not relevant in this case because the s.107 notice relied on s 107(2), not on s.103 (relating to bogus documents).

Whether the decision to grant a visa to the visa holder was based, wholly or partly, on incorrect information

115.   The applicant claims he reunited with his wife in Iran after his wife travelled to Iran on [Day 7] December 2015. However, for the reasons given above, the Tribunal considers the statement that the wife travelled to Iran is incorrect. The Tribunal is therefore satisfied that the applicant travelled to Iraq in December 2015 and that his youngest son was conceived in Iraq. While the evidence indicates the applicant was in Iraq at the time his son was conceived, it is not possible to draw any conclusions about how long he stayed in Iraq before returning to Iran.

116.   The Tribunal finds that the decision to grant the visa was not based on the incorrect information the applicant provided about his wife’s travel to Iran on [Day 7] December 2015.

117.   The applicant was found to be a refugee because the delegate accepted that the applicant was [an Occupation 1] who had worked for [Employer 1] and that there was a real chance that he would face persecution in Iraq because of his work as [an Occupation 1]. It has not been established or alleged that the applicant provided incorrect information about his occupation or past employment. The delegate cited country information about the many risks facing [Occupation 1s] in Iraq and found that it was his work as [an Occupation 1] that led to him facing threats and violence in Iraq. The delegate concluded there was a real chance that the applicant would face serious harm because of his work as [an Occupation 1].

118.   The Tribunal finds the decision to grant the applicant a protection visa was not based, wholly or partly, on incorrect information he provided about his wife’s travel history in response to the NOICC.

119.   The Tribunal gives this factor weight in favour of not cancelling the visa.

The circumstances in which the non-compliance occurred

1. Subdivision C, namely ss 97 to 115 of the Act, contains provisions relating to the cancellation of visas based on incorrect information. These provisions include an obligation to provide correct answers in a visa application (s 101), not to provide bogus documents (s 103), an obligation to notify the Department about a change of circumstances such that information in an application becomes incorrect (s 104), an obligation to notify the Department about any incorrect answer and to provide the correct information when the non‑citizen becomes aware the information was incorrect (s 105) and an obligation not to make an incorrect statement in response to a notice issued under section 107 of the Act (s 107(2).

121.   The Tribunal does not consider the fact that the applicant returned to Iraq for an uncertain period of time in 2015 provides a sufficient basis to conclude that he provided incorrect information in his protection visa application. For the reasons given above, the Tribunal is of the view that there is no non-compliance with s101(b) of the type described in respect of the first NOICC.

122.   For the reasons given above, the Tribunal is satisfied that the applicant provided incorrect information in response to the first NOICC in contravention of s 107(2) of the Act. There is no information to indicate the non-compliance occurred because of events or circumstances outside the applicant’s control and he was represented at the relevant time. The Tribunal is of the view that he was motivated to make an incorrect statement because he did not want his protection visa to be cancelled. The Tribunal has had regard to the fact that the applicant was found to be a refugee and that he maintains that he fears persecution in Iraq.

123.   In view of the above, the Tribunal gives this consideration  some weight in favour cancelling the visa.  

The present circumstances of the visa holder

124.   The applicant’s immediate family reside in Iraq.  On [Day 3] December 2015, he sponsored an application for a Combined Partner (subclass 309/100) visa application for his spouse [Ms A] and their children [Child 3], [Child 2] and [Child 1]. The application is still undergoing processing. In the event a decision is made to cancel the applicant’s visa, he will no longer be an eligible sponsor for the purpose of the Partner visa and the application will likely be refused.

125.   The Tribunal accepts that in the event a decision is made to cancel the visa he will no longer be eligible to sponsor his family to migrate to Australia but will remain in Australia as he claims to be owed protection obligations. While the Tribunal was concerned about the credibility of the applicant’s claims that two of his children have been kidnapped and then released since he left Iraq, the Tribunal accepts that he is very distressed by his prolonged separation from his family and anxious about the security of his family. The medical evidence provided to the Tribunal that the applicant suffers from chronic depression and is currently taking anti-anxiety and anti-depressants.

126.   The Tribunal accepts that the letters of support provided by the applicant indicate that he has support within his local community in Australia, having established himself as [an Occupation 2] and that he contributes to the community through his involvement in [Occupation 1].

127.   The Tribunal gives the applicant’s present circumstances some weight against cancelling the visa.

Any other instances of non-compliance by the visa holder known to the Minister

128.   There are no instances of non-compliance known to the Tribunal. Being a minimum expectation of all visa holders, this carries little weight against cancelling the visa.

The time that has elapsed since the non-compliance

129.   The relevant non-compliance took place in 2018 when the applicant responded to the NOICC. The applicant has provided evidence that he has formed ties in Australia and established a hairdressing business. The Tribunal gives this consideration weight against cancelling the visa.

Any breaches of the law since the non-compliance and the seriousness of those breaches

130.   There is no evidence before the Tribunal that the applicant has breached the law since the relevant non-compliance. The Tribunal gives this consideration a little weight in favour of not cancelling the visa.

Any contribution to the community

131.   The applicant has provided evidence that he works as [an Occupation 2] in Australia. The Tribunal has considered character references from members of the Australian community, most of whom came to know the applicant through his [Occupation 2] business. The authors of these letters are of the opinion that the applicant is a hardworking, kind, and compassionate man, concerned about his family and anxious to build a future in Australia. The applicant has provided documentation  that he has completed a TAFE course to improve his [English skills] and that he lodges tax returns with the Australian Taxation Office.

132.   At the hearing the applicant stated that he had engaged in voluntary [Occupation 1] work within the Iraqi community before Sydney entered lockdown during the COVID-19 pandemic. He told the Tribunal that he had not done any paid work as [an Occupation 1] in Australia, but he had done some voluntary work because he loves [Occupation 1]. The Tribunal put to the applicant that no such evidence had been provided  to the Tribunal. After the hearing links to YouTube videos were provided to the Tribunal. These videos are recorded in Arabic but appear to show the applicant [doing a job task] in the Iraqi community in Australia. The Tribunal accepts that the applicant has occasionally undertaken voluntary [Occupation 1] work for [Employer 1] while in Australia.

133.   The Tribunal gives this factor weight against the cancellation of the visa.

Other factors

134.   While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to the following matters:

(1)Whether there are persons in Australia whose visas would, or may, be cancelled under s 140 of the Act.

(2)Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example:

a.if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, decision‑makers are obliged to treat as a primary consideration the best interests of the children.

b.whether the cancellation would lead to the person's removal in breach of Australian's non-refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment.

(3)Whether there are mandatory legal consequences to a cancellation decision, for example three examples:

a.whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia's non‑refoulement obligations;

b.whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening (for example, s 46A, s 46B, s 48, s 48A, s 91E, s 91K and s 91P); and

c.whether, upon cancellation, the person would become an unlawful non‑citizen (unless the person holds another visa that is in effect) and is liable to be detained under s 189, and liable for removal under s 198.

(4)Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).[16]

[16] Department of Home Affairs, Procedural Instruction – General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140) at [4.1]

135.   There is no suggestion that another person holds a visa in Australia as a family member of the applicant.  As there are no individuals in Australia whose visas would, or may, be cancelled under s 140 of the Act, this issue is not relevant in this case. Likewise, there are no children in Australia whose interests could be affected by the cancellation.

Whether cancellation will lead to removal in breach of Australia’s non-refoulement obligations

136.   The Tribunal has considered whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, cruel and inhuman or degrading treatment or punishment. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), and generally speaking, has protection obligations in respect of people who are refugees. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it

137.   Australia is also a signatory to other international instruments which give rise to non-refoulement obligations, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights (the ICCPR) and its Second Optional Protocol (the Optional Protocol to the ICCPR).

138.   The phrase ‘non-refoulement obligations’ is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.[17]

[17] Section 5(1), Migration Act 1958.

139.   The applicant’s position is that he will be at risk of harm in Iraq for the reasons he gave in his protection visa. The delegate’s decision notes that the ITOA found that the applicant is not owed non-refoulement obligations under the relevant conventions to which Australia is a signatory. For the reasons that follow the Tribunal does not accept that the applicant would be removed to Iraq as a consequence of the decision to cancel his visa.

140. In the event a decision is made to cancel the visa, the applicant would become an unlawful non-citizen and liable to be detained under s 189 of the Act. Under s.198(5) of the Act, an unlawful non-citizen is liable to be removed from Australia as soon as practicable. Under s.197C(1), Australia’s non-refoulement obligations are irrelevant to the removal of a person under s.198, and the duty to remove arises irrespective of whether there has been an assessment of Australia’s non-refoulement obligations: s.197C(2).[18]

[18]It had been held that indefinite detention may not result, because of the version of s 197C then in force, which provided that non-refoulement obligations were irrelevant to duty to remove the unlawful non-citizens under s 198: See DMH16 v MIBP [2017] FCA 448, at [30]; NKWF v MIBP [2018] FCA 409, at [41]–[43]; AQM18 v MIBP [2019] FCAFC 27, at [17], [25], [28], [119]–[120].

141. The question of whether s 197C and 198 required the removal of an unlawful non-citizen from Australia as soon as practicable regardless of whether Australia had non-refoulement obligations was addressed by Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth). This Act amended section 197C to include new sub-paragraphs (3) to (9). The effect of these amendments is that, despite s 197C(1) and 197(2), s 198 does not require an officer to remove an unlawful non-citizen where a person has been found to be owed protection obligations, unless that protection finding has been quashed or set aside, or the Minister is satisfied that the non-citizen is no longer a person in respect of whom a protection finding would be made, or the non-citizen requested removal.

1. The new section 197D(2) provides that, for the purposes of s 197C(3), the Minister may make a decision that a person is no longer a person in respect of whom a protection finding would be made. A decision made under s 197D(2)) is reviewable under Part 7 of the Act. Therefore, when a protection finding has been made in respect of an applicant, that person cannot be removed under s 198 unless and until there is a further decision under s 197D that a protection finding would no longer be made. A decision under s 197D(2) that a person is no longer a person in respect of whom a protection finding would be made is an MRD reviewable decision under Part 7 of the Act

143. The Tribunal finds that a ‘protection finding’ has been made in respect of the applicant in circumstances where s 36(2)(a) is satisfied and where an adverse finding has not been made under s 36(1C): s 197C(5)(a) of the Act. The Tribunal notes that the Department had conducted an International Treaties Obligations Assessment (ITOA),[19] which is an assessment by the Department of whether Australia’s non-refoulement obligations under international treaties are engaged in relation to a person.

[19] Policy - Refugee and Humanitarian – [ITOA] International Treaties Obligations Assessments – About ITOAs – What is an ITOA (issued 18 August 2017)

144.   The ITOA delegate accepted that the applicant may have worked as [an Occupation 1] for [Employer 1] in the past and found that he returned to Iraq on at least one occasion for almost seven months and visited his family in Baghdad. The ITOA delegate was not satisfied that the visa holder is a person in respect of whom Australia has non-refoulement obligations under the CAT and the ICCPR. The ITOA does not engage with key factual findings made in the protection visa decision about the applicant’s past experiences as [an Occupation 1] or the risks he would face if he continued to work as [an Occupation 1] if he returned to Iraq and continued to work in this profession. However, ultimately  it is unnecessary to engage to consider the ITOA in further detail here because the ITOA is not a protection finding. This is because the decision of the ITOA delegate is not a ‘protection finding’ for the purpose of section 197(C).

145.   The decision in which the protection finding was made has not been quashed or set aside. A decision has not been made that the applicant is no longer a person in respect of whom a ‘protection finding’ applies, nor is there any evidence before the Tribunal that the Minister is considering making such a decision. The applicant has not requested removal to Iraq; on the contrary, his position is that if he is removed to Iraq he will face persecution for the reasons he gave in his protection visa application. If the Minister were to make a decision under s 197D of the Act that the applicant no longer engages protection obligations, then he would be entitled to seek review of this decision.  However, such a decision has not been made.

Mandatory legal consequences

146.   The Tribunal finds that if the applicant’s visa is cancelled that the applicant will be an unlawful non-citizen and be liable to detention under s 189 of the Act.  If the applicant’s visa is cancelled, s.48 and s 48A of the Act will prevent the applicant from making a visa application except with the authorisation of the Minister. As a result, the applicant will be unable to apply for a bridging visa or protection visa. There is no suggestion that the applicant would be able to make an application for a partner visa. In the event a decision is made to cancel the applicant’s visa, his application to sponsor his wife and children on a Partner (combined subclass 309/100) visa will be refused as he would no longer be eligible to sponsor them.  

147.   As an unlawful non-citizen the applicant will be subject to mandatory immigration detention. As the Minister’s statutory powers to grant the applicant a visa (s.195A of the Act) or move a non-citizen into ‘community detention’ (s.197AB of the Act) are non-compellable and discretionary, it is uncertain whether the applicant would be granted a visa or that he would be eligible for community detention.

148.   The majority judgment in Commonwealth of Australia v AJL20 [2021] HCA 21 considered the interpretation and effect of ss.189, 196, 197C and 198 and confirmed the lawfulness of detention of an unlawful non-citizen, even if the Executive has not been taking steps to remove a detainee as soon as reasonably practicable. As set out above, the applicant is the subject of a protection finding and therefore cannot be removed to Iraq unless a decision were to be made under s 197D of the Act that he no longer engages protection obligations. The applicant has not requested removal from Australia and the Minister has not made a decision that he no longer engages protection obligations under section 197D(2).

149.   While this means that the cancellation of the applicant’s visa would not result in his removal in breach of Australia’s non-refoulement obligations. However, if his visa is cancelled he will be subject to a prolonged period of detention.  In addition to Australia’s non-refoulement obligations under international law, article 9 of the ICCPR protects a person’s ‘right to liberty and security of person’ and a person’s right not to be subject to arbitrary detention. In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Kenny and Mortimer JJ stated [at 123]:

The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law…for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.[20]

[20] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 19 April 2021.

150.   At the time of the decision, the applicant maintains he is owed protection obligations by Australia. The applicant continues to be subject to a protection finding with the consequence that he cannot be removed from Australia unless the decision finding that he engages Australia’s protection obligations is quashed or set aside. If the visa is cancelled, the applicant will be liable to detention under s 189 of the Act unless and until the Minister exercises his personal discretion under s 195A to grant him a visa or to move him into community detention under s 197AB of the Act; the Minister makes a decision under s 197D that the applicant no longer engages protection obligations and the associated appeals process is exhausted; the applicant is removed to a third country; and or requests to be returned to Iran. 

151.   In these circumstances, the applicant may lose his liberty for a very significant period of time. There is no ‘chronologically fixed endpoint’ to the applicant’s detention and the applicant may be subject to indefinite detention.

152.   The mandatory consequences of cancellation weigh strongly in favour of not cancelling the visa.

Any other relevant matter

153.   The Tribunal has considered the hardship that would be caused by cancellation. The Tribunal and accepts that, as a consequence of the cancellation, he will be deprived of his liberty in immigration detention and suffer hardship as a result of his ongoing separation from his family. The Tribunal accepts, having regard to the medical evidence, that the consequences of cancellation are very likely to result in the deterioration of his mental health. These matters weigh in favour of not cancelling the visa.

CONCLUSION

154.   The Tribunal has decided that there is no non-compliance with s 101(b) in the way described in the notice given to the applicant under s107 of the Act on 8 March 2018.  The Tribunal is, however, satisfied that there was non-compliance with s 107(2) by the applicant in the way described in the notice given under s.107 of the Act on 1 June 2018. The applicant contravened s107(2) of the Act because he sought to conceal the fact that he returned to Iraq by incorrectly stating his wife travelled to Iran on [Day 7] December 2015. He sought to support this statement by presenting a copy of passport that has been found to be fraudulently generated. This conduct reflects very poorly on his credibility. However, for the reasons given above,  the Tribunal has found that it does not follow from the fact the applicant returned to Iraq to visit his family that the applicant provided incorrect information in his protection visa application in contravention of s 101(b) of the Act.

155.   In considering whether the visa should be cancelled, the Tribunal has considered the totality of the applicant’s circumstances. The grant of a protection visa to the applicant was not based wholly or partly on the incorrect statement the applicant provided in contravention of s 107(2) of the Act. The applicant maintains he faces a real chance of persecution in Iraq because of his work as [an Occupation 1] and has submitted country information about the many risks facing [Occupation 1s] in Iraq. The fact the applicant is [an Occupation 1] is not dispute. Because the applicant continues to be subject to a protection finding, he cannot be removed from Australia at this time. In these circumstances, the consequences of cancellation are grave: the applicant may be subject to a prolonged and indefinite detention in circumstances where he will continue to be separated from his family in Iraq and his mental state will deteriorate.

156.   Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

DECISION

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

Frances Simmons
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.

103Bogus documents not to be given etc.

A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

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.