1622527 (Refugee)

1622527 (Refugee) [2018] AATA 3053 (6 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1622527
COUNTRY OF REFERENCE:                  Iran/Stateless
MEMBER:Irene O'Connell
DATE:6 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 06 July 2018 at 1:12pm
CATCH WORDS
Refugee – Class XA Subclass 866 (Protection) visa – Cancellation under s.109 of the Migration Act 1985 – where applicant provided incorrect information regarding citizenship in application form and statutory declaration – consideration of applicant’s response, the prescribed circumstances in r 2.41 of the Migration Regulations1994 and any other relevant considerations – decision affirmed
LEGISLATION
Migration Act 1958, ss 36(2), 101(b), 101, 102, 103, 104, 105, 107, 109, 109(1), 109(2), 140, 496, 499
Migration Regulations 1994, r 2.41
CASES
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Vata v Minister for Immigration & Anor [2015] FCCA 1735
OTHER MATERIALS
1951 Convention relating to the Status of Refuges as amended by the 1967 Protocol relating to the Status of refugees, Article 1A(2)
Procedures Advice Manual – PAM3 ‘General visa cancellation powers’
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision by a delegate of the Minister for Immigration (the Minister) to cancel the applicant’s Class XA, Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act). The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) of the Act, which requires a non-citizen to complete their visa application in such a way that no incorrect answers are given.
The applicant entered Australia as an Irregular Maritime Arrival (IMA) on 17 July 2010. He was placed in immigration detention on Christmas Island and, on 3 September 2010, requested a Refugee Status Assessment (RSA). He claimed to be stateless and a Faili Kurd from Iran.
On 22 February 2011, a delegate of the Minister determined that the applicant was not a refugee as defined in Article 1A(2) of the 1951 Convention relating to the Status of Refugees[1] and, accordingly, was not a person to whom Australia owed protection obligations. On 21 April 2011, the applicant sought a review of this determination with the Independent Merits Review (IMR). On 21 October 2011, the IMR assessor found that the applicant satisfied the criterion for a protection visa in s.36(2) of the Act and recommended that the applicant be recognised as a person to whom Australia has protection obligations.
[1] as amended by the 1967 Protocol relating to the Status of Refugees.
The applicant was then invited to lodge an application for a protection visa which he did on 12 October 2012. In this application, the applicant stated he was Stateless at birth in response to a question about his citizenship. In his attached Statutory Declaration he repeated this information.
On 28 June 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) of the protection visa on the basis that the applicant incorrectly stated in his protection visa application that he was stateless when in fact he held Iranian citizenship.
On 29 December 2016, the delegate found that the applicant had not complied with s.101(b) of the Act and that grounds existed for cancellation of his visa under s.109. Having found that grounds existed for cancellation, the delegate considered that the visa should be cancelled.
LEGISLATIVE FRAMEWORK
Subsection 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.
Relevant to the circumstances of this case, s.101(b) of the Act provides that:
A non-citizen must fill in or complete his or her application form in such a way that:
(b) no incorrect answers are given or provided.
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. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Section 107 states that:
(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
(i)     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:
(ii)    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
(iii)   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
(b)   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
(c)   setting out the effect of sections 108, 109, 111 and 112; and
(d) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and ...
Section 109 provides that if the Minister decides there has been non-compliance, the visa holder’s visa may be cancelled after considering any response provided by the visa holder to the notice and having regard to ‘any prescribed circumstances’. The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 (the Regulations) and are as follows:
(a)   the correct information;
(b)   the content of the genuine document (if any);
(c)   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;
(d)   the circumstances in which the non-compliance occurred;
(e)   the present circumstances of the visa holder;
(f)     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g)   any other instances of non-compliance by the visa holder known to the Minister;
(h)   the time that has elapsed since the non-compliance;
(i)     any breaches of the law since the non-compliance and the seriousness of those breaches; and
(j)     any contribution made by the holder to the community.
In Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 the Court indicated that the prescribed circumstances must receive genuine consideration but that this does not require the decision maker to compartmentalise each criterion.[2] Different criteria may be of more or less relevance in the particular circumstances of each case.
[2] Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [69] (Stone, Foster and Nicholas JJ).
In exercising the discretion to cancel or not cancel a visa the Administrative Appeals Tribunal (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’.
PAM3 requires delegates to consider three additional matters in exercising their discretion to cancel a visa under s.109 of the Act. These are: whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act as a result of the cancellation; whether the visa cancellation may result in Australia breaching its international obligations; whether there are mandatory legal consequences resulting from the cancellation such as indefinite detention, the applicant becoming an unlawful non-citizen and a bar to applying for any other visa.
The Minister may delegate any of his powers under the Act to another person (s.496 of the Act) and may issue directions about the performance of those functions and the exercise of those powers by others (s.499). There is no dispute in this case that the Minister delegated the power under s.109 to an officer of the Department.
EVIDENCE BEFORE THE TRIBUNAL
The Department provided to the Tribunal three Departmental files. Department File ([number]), Department file ([number]) and Department file ([number]). These files contain documents relevant to the grant of the applicant’s protection visa and documents relevant to the cancellation of this visa.
Documents relevant to the grant of his protection visa include the following:
·Unauthorised arrival entry interview record and personal particulars for character assessment form (dated 3 September 2010);
·Request for RSA and statutory declaration (dated 3 September 2010);
·A submission from the applicant’s representative (dated 23 December 2010);
·Recording of the RSA interview and the RSA decision record (dated 8 March 2011);
·Correspondence from the Department to the applicant (dated 29 October 2012) notifying the applicant of the grant of a protection visa and providing the applicant with a Visa Evidence Card;
·A photocopy of the Visa Evidence Card.
Documents relevant to the cancellation of his visa include the following:
·NOICC of the applicant’s protection visa (Class XA) (Subclass 866) (dated 28 June 2016);
·The applicant’s response to the NOICC (dated 21 July 2016):
·Request for International Treaties Obligation Assessment (ITOA) (dated 25 July 2016);
·The applicant’s submission regarding the ITOA (dated 16 September 2016);
·The record of the ITOA (dated 29 September 2016);
·Notification of Cancellation under s.109 of the Act and the Record of Decision (dated 29 December 2016).
All evident on the Department file are the following relevant documents:
·Copy of the applicant’s Iranian passport issued [in] 2014 by the Islamic Republic of Iran; and
·Copy of the applicant’s Titre de Voyage issued [in] 2014 by the Australian Government;
·Copy of the applicant’s birth certificate issued [by] the National Organisation for Civil Registration, Islamic Republic of Iran, Ministry of Interior.
When lodging his application for review the applicant provided to the Tribunal a copy of the NOICC and the decision record of the delegate cancelling his visa.
The applicant gave oral evidence to the Tribunal at a hearing on 17 April 2018. He was represented at the [hearing]. At the hearing the applicant provided to the Tribunal a number of the documents contained on the Department file, which he had accessed by way of Freedom of Information. These documents were:
·The decision record of the IMR dated 21 October 2011;
·The decision record of the ITOA dated 29 September 2016; and
·The Department record of the applicant’s arrival interview.
The applicant provided to the Tribunal a Statutory Declaration dated 16 April 2018 and several written submissions written by his representative dated 17 April 2018, 15 May 2018 and 27 May 2018.
In his written submissions to the Tribunal the applicant reiterates much of what was contained in his response to the NOICC. In particular he acknowledges that he provided incorrect information in the manner particularised in the s.107 notice and he expresses remorse for this. The applicant also sets out the reasons for his non-compliance and also shows cause why in his view his visa should not be cancelled.
In his Statutory Declaration (dated 16 April 2018) the applicant sets out his claims to still be in fear of serious harm should he return to Iran. In particular he refers to his work in Australia as an interpreter and his exposure through this work to sensitive information about other people, some of whom have returned to Iran. He also sets out other reasons he cannot return to Iran as follows:
·     Whilst I am not stateless, my other claims that I have made to the Department are largely correct. When I was born, I was a stateless Fali Kurd. I was not granted citizenship until I was about [age] years old. This is when I received my birth certificate. Even after becoming a citizen my family and I still faced many issues. I was able to attend school but we were denied access to other services that citizens were able to access. Even now, the government says that they protect Kurds, however, I know we are not equal in Iran. I've recently heard stories about how Kurds were treated after the earth quakes in November 2017. Most Iranians were provided with immediate emergency accommodation, whereas the Kurds in the Kermanshah Province had to wait. This type of discrimination happens to Kurds in Iran all the time.
·     My life would be even more difficult as I have rejected Islam. I do not believe in any religion. Because of this, I have had to distance myself from the Kurdish community in Australia. The Kurdish community could never accept me this way. Religion is central to our way of life. While I am aware that some people in Iran are not strictly Islamic, the combination of me being Kurdish and an apostate will make me a target from the authorities and my own people.
·     I started to move away from Islam from a young age. As a boy I was forced to pray and I hated it. Religion and cultural practices are closely tied to the laws in Iran. My uncles and extended family in Iran are particularly religious. I have a cousin who is in the Islamic Revolutionary Guard Corps (IRGC). He is the son of my mother's brother. His name is [name]. I understand that he has been working for the IRGC since about 2015 or 2016. I fear that my cousin or other family members may report me to the authorities for being an apostate. For my cousin, he would feel that it is his duty to reveal to the authorities my apostasy.
·     I am also aware that the political situation in Iran has become more volatile. Tensions have been very high because of ongoing issues with the United States and western countries in general. There have also recently protests about the economic situation in Iran. That led to protesting against the whole regime. Amir-Abbas Fakhravar was one of the leading protesters. He has been living in exile in the United States. A few years ago, Fakhravar wrote a book about the Supreme Leader. His book is forbidden in Iran. The book is called 'Rafigh Ayatollah’. I subscribe to the YouTube channel of Amir- Abbas Fakhravar. If you share things about the Supreme Leader, it is very dangerous. Sharing information about the president is bad but sharing information about the Supreme Leader much worse. I would go to prison if I was to be caught sharing such information.
·     The current situation in Iran is very unstable. I am opposed to the way that the current regime and the Iranian authorities operate. If I am forcibly returned any questioning by the authorities would soon reveal this. My opposition to the regime would be obvious.
The applicant refers to his return visit to Iran in 2014 and states that that visit was short term and that he kept a very low profile; as such no adverse inferences should be drawn for this return visit in terms of assessing his claim to fear harm on returning to Iran. He claims that his fear of harm in returning to Iran is greater now.
FINDINGS AND REASONS
As set out above the exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice under s.107 of the Act. In the NOICC the applicant was advised that the grounds for the notice were that there had been non-compliance with s.101(b) of the Act as the applicant had provided incorrect answers to questions in his protection visa application and his Statutory Declaration dated October 2012.
Did the notice comply with the requirements in s.107?
The Tribunal is satisfied that the NOICC issued on 28 June 2016 did comply with the requirements of s.107. It was sufficiently particularised for the applicant to respond to it and the delegate had reached the necessary state of mind to engage s.107.
The NOICC particularised the incorrect information in the following way:
On 12 October 2012 you lodged an application for a Class XA Subclass 866 Protection visa. As part of that application, the applicant completed Form 866 – Application for a protection (Class XA) Visa you provided the following information
Question 19
Your Citizenship at birth
Stateless
Question 23
If you are stateless, how, when and why did you lose your citizenship?
Stateless by birth
In the statutory declaration referred to at questions 42, 43, 44, 45 and 46 relevantly states:
1.I am STATELESS, born on [date] in Baghdad, Iraq.
…
6.I am not a citizen of any other country. I do not have any other right of entry or residence in any country.
7.I am STATELESS.
…
13.For me and my siblings and family, growing up as a Faili Kurd and Stateless there has been constantly surrounded by the ongoing threats from the authorities and Basij.
…
21.On many occasions since the loss of the Green card we as a family were confronted by the Basij and others who attended our home sought personal Identity documents as we did not possess any had to constantly bribe them.
…
25.[T]he constant fears that sustained against myself from the Basij, Etalaat and the Iranian authorities led to me suffering gravely from my being a Faili Kurd, Stateless, without any rights, opportunities that other Iranian have created the need for me to escape for my life and safety.
…
29.I fear for my life as a Faili Kurd and Stateless. (Emphasis in original.)
In his response to the NOICC the applicant conceded that he had provided incorrect information as to his citizenship status stating that he was Stateless when in fact he held Iranian citizenship.
Given the applicant’s unqualified admission, in his response to the NOICC, that he did provide incorrect information in respect of his citizenship status it was clearly open to the delegate to issue the notice under s.107 on the basis that there had been non-compliance with s.101(b).
Was there non-compliance as described in the s.107 notice?
The Tribunal is satisfied that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice. The applicant in his submission to the Tribunal dated 17 April 2018 reconfirmed that he had provided incorrect information to the Department about his citizenship as described in the s.107 notice.
Should the visa be cancelled?
In considering whether or not to cancel the visa the Tribunal is required to have regard to the applicant’s response to the s.107 notice about his non-compliance and also have regard to the ‘prescribed circumstances’ in r.2.41 of the Regulations and the PAM3 as set out above at paragraphs [10] to [13]. The applicant provided a detailed response to the NOICC and restated much of his response in his submissions to the Tribunal. The Tribunal has considered the applicant’s responses and makes the following observations in respect to the prescribed circumstances.
The correct information

The correct information is that the applicant was and is an Iranian citizen and not stateless as he so stated in his protection visa application. The applicant submits that the incorrect information he provided should be viewed as something of an exaggeration in an otherwise true account of his circumstances as a Faili Kurd with an anti-government profile. The applicant’s representative suggests that this exaggeration of his circumstance is what one might expect from a person who is seeking protection and in fear of returning to their home country. The Tribunal is not persuaded that the incorrect information can be characterised as an exaggeration of an otherwise correct factual account. The incorrect information is concrete and specific. The applicant stated that he was stateless when in fact he was a citizen of Iran. There was no ambiguity in respect of it; it is not open to misunderstanding or confusion.
Whether the decision to grant the visa was based wholly or partly on incorrect information
The Tribunal notes that the processing of the applicant’s claim for refugee status extended over a two year period from July 2010 until the grant of a protection visa in October 2012. At all stages of the processing of his application, beginning with his Entry Interview, primary assessment and through to the review stage, the applicant maintained what he has now agreed to be incorrect information about his citizenship status. Maintaining this incorrect information required providing other incorrect information such as that he was born in Baghdad when in fact he was born in Tehran.
In the NOICC the delegate suggests that the incorrect information provided about his citizenship was fundamental to the grant of his protection visa. The applicant in his response to the NOICC and in his submission to the Tribunal argues that the grant of the visa was based on additional factors and refers to the Reviewer’s Statement of Reasons in which the Reviewer found the applicant to have ‘an imputed anti-government political opinion’ unrelated to his claim to be a stateless Faili Kurd and that this gave rise to a real chance that the applicant would suffer persecution if returned to Iran. This imputed political opinion arose from the applicant’s unintended involvement in political demonstrations in 2009.
It is clear from reading the Reviewer’s Statement of Reasons that the Reviewer made his recommendation because he accepted the applicant’s claim that he was a stateless Faili Kurd and accepted that the applicant had experienced harm in the past because of this. He also accepted that as a stateless person the applicant would be undocumented and that this would make it difficult for him to return to Iran.
In the view of the Tribunal information about one’s citizenship or lack thereof it is significant and substantial in the determination of protection visas in general and was so in the case of this applicant. Citizenship status is fundamental in the context of processing a visa application. Indeed its significance was not lost on the applicant who maintained incorrect information in relation to his citizenship as he had heard from others in detention that it assisted in achieving a visa and the consequent release from detention.
The Tribunal considers that the incorrect information provided by the applicant was significant in the granting of his protection visa. It therefore weighs heavily towards the cancelling of the visa.
The circumstances in which the non-compliance occurred
In his Statutory Declaration dated 16 April 2018, the applicant states that he was prompted to lie about his citizenship because ‘he had heard from others in detention that stateless Faili Kurds had stronger claims and would get out of detention quicker’. Maintaining the incorrect information about his citizenship weighed heavily upon him but he continued to do so because of fear of returning to Iran. The applicant has explained that his detention had a detrimental effect on his mental health. He also indicated at the hearing before the Tribunal that he is in poor mental health and a depressed state. The Tribunal acknowledges that the applicant is mentally fragile and that the manner of the applicant entering Australia was a high risk venture which no doubt has taken a toll on the applicant.
The subsequent behaviour of the visa holder concerning his obligations under Subdivision C of Division 3 Part 2 of the Act
The applicant in his submissions to the Tribunal has suggested that he sought to correct the incorrect information. In the submission to the Tribunal dated 17 April 2018 the representative states that the applicant ‘attempted to notify the Department of Immigration of his true citizenship less than one month after providing the incorrect information in his visa application and statement’.
However the applicant was not attempting to correct the information in his protection visa application but rather in his Visa Evidence Card issued to him upon the grant of his visa. This is clearly set out in the NOICC. The Visa Evidence Card identified the applicant’s nationality as stateless and the applicant asked that this be changed to Iranian. He was then requested to provide relevant identity documents and provided a copy of his Iranian birth certificate and National Identity Card which he did.
The NOICC indicates that this interaction with the Department took place on 5 November 2012, one week after the grant of the protection visa on 29 October 2012. Department records indicate that a letter of the notification of the grant of the protection visa along with the Visa Evidence Card was posted to the applicant by registered post on 29 October 2012.
Other instances of non-compliance and time since non-compliance
Some six years have lapsed since the applicant’s non-compliance and while since that time there are no known other instances of non-compliance, the applicant did during this time approach the Iranian Embassy in Canberra to obtain an Iranian passport which was issued to him effective from [2014]. He also returned to Iran.
The applicant travelled to [another country] using his Titre de Voyage document issued by the Australia Government and re-entered Australia using this document on 28 November 2014. From [another country] the applicant travelled to Iran and used his Iranian passport to enter and exit Iran. From the applicant’s evidence it would appear that he spent a period of nine weeks in Iran. The applicant has claimed that he returned to Iran to visit his mother who was ill. He has also maintained that he kept a low profile on his return to Iran and that he was questioned on his departure from Iran about his Iranian passport issued in Canberra.
Any breaches of the law since the non-compliance and the seriousness of these breaches
The Tribunal notes that the applicant has indicated that he has committed traffic offences and was driving while his licence was suspended. The Tribunal considers that the latter is an offence of some concern but notes that the applicant claimed to have not understood that his licence was suspended.
Any contribution made by the holder to the community
The Tribunal notes and accepts that the applicant is a qualified interpreter and that he has worked as an interpreter for a number of Commonwealth agencies. The Tribunal also notes that the applicant in his role as an interpreter would have knowledge of the circumstances of applicants and or police investigations.
Other considerations
The Tribunal has regard to the PAM3 guidelines which require delegates to consider three additional factors over and above the prescribed circumstances. There is no suggestion that there are other persons in Australia for whom there would be an effect if the applicant’s visa were cancelled.
The applicant contends that if his visa were cancelled and he was required to return to Iran Australia would be in breach of its non-refoulement obligations. The Tribunal notes that the applicant participated in an ITOA in September 2016 and that the ITOA concluded that the applicant ‘was not a person to whom Australia has non-refoulement obligations’. The applicant has argued that the Tribunal should place limited weight on this assessment partly because the ITOA did not involve an interview with the applicant and also because the applicant considers aspects of the assessment to be wrong.
As set out in his Statutory Declaration the applicant has given several reasons over and above the claim of statelessness as to why he fears harm on return to Iran. These are that he is a Faili Kurd and Faili Kurds are subject to discrimination; he has an actual and imputed anti-government political opinion; he has rejected Islam; he has involvement in anti-regime media activity; and he was an employee of a foreign/western government and returnees are subject to mistreatment. The applicant’s representative in his submission of 17 April 2018 compiles these claims into a range of particular social groups. The Tribunal makes the following finds in respect to these claims.
The Tribunal does not accept that the applicant does face serious or significant harm by reason of his ethnicity as a Faili Kurd. The applicant in his Statutory Declaration claims that as a Faili Kurd he will face discrimination. The Tribunal notes the country information referenced by the adviser’s submission from the US Department of State and Amnesty International which refers to discrimination of Kurds. However the Tribunal has regard to and places weight on the DFAT Country Information Report on Iran dated 7 June 2018 which states that DFAT ‘is not aware of specific instances whereby authorities have singled out Faili Kurds, for mistreatment …’ The DFAT report notes that there an estimated 8 million Kurds living in Iran and that Faili Kurds make up a sub-group.
The Tribunal is satisfied on its reading of the country information that the circumstance of an undocumented Faili Kurd is distinct from a documented Faili Kurd. In particular the DFAT Thematic report on Faili Kurds in Iran and Iraq (dated 3 December 2014) makes the following points:
3.53 Faili Kurds in Iran who are Iranian citizens can access services on the same basis as other Iranian citizens. They appear to face little to no discrimination in access to services on the basis of their ethnicity or religion.
3.62 Faili Kurds who are Iranian citizens have access to employment on the same basis as other Iranian citizens.
5.4 Faili Kurds who are Iranian citizens have access to state protection on the same basis as other Iranian citizens.
Given that the applicant is an Iranian citizen the Tribunal does not accept that he faces a real chance of serious harm or that there is a real risk of significant harm to the applicant by reason of his ethnicity.
In respect to his religious practices the applicant claims that he fears that his relatives may report him to the authorities as an apostate as he no longer adheres to Islam, and that he believes as a Kurd and an apostate he will be targeted by the authorities. The Tribunal does not accept that the applicant faces serious or significant harm by reason of his non-adherence to Islam. The DFAT Country Information Report for Iran (April 2016) states that:
3.55 DFAT considers it unlikely that individuals will be prosecuted on charges of apostasy. DFAT also considers it highly unlikely that the government would monitor religious observance by Iranians – for example, whether or not a person regularly attends mosque or participates in religious occasions such as Ashura or Muharram – and thus it would generally be unlikely that it would become known that a person was no longer faithful to Shia Islam. Perceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts at proselytization, attendance at a house church or via informants (see ‘Christians’, above).
The Tribunal notes and accepts the country information indicates and considers the applicant’s religious profile would not be of adverse interest to the Iranian authorities. The applicant claims to be a non- believer and not a convert to another faith. The Tribunal does not accept that family members would report him to the authorities because of his non-adherence to Islam. Nor does the Tribunal accept that the applicant’s non-adherence to Islam in combination with his Kurd ethnicity give rise to anything more than a remote chance of serious or significant harm on return to Iran.
The Tribunal does not accept that the applicant faces serious or significant harm by reason of an actual or imputed political opinion. The Tribunal notes that he claims that in 2009 he was inadvertently caught up in street demonstrations and imprisoned for several days. He also claims to have been active on social media condemning the regime. The Tribunal is not satisfied that his past involvement in political unrest in 2009 or his statements on social media do give rise to a well-founded fear of serious harm or a real risk of significant harm on his return to Iran. The Tribunal makes this finding on the basis of country information.
In terms of the applicant’s participation in the Green Movement demonstrations the Tribunal notes and accepts the relevant country Information from DFAT which sets out the following:
3.59 It is difficult to estimate how many of those arrested during the Green Movement protests remain in prison. Given the period of time that has elapsed, DFAT assesses it would be highly unlikely that those arrested at the time for simply participating in the protests would remain imprisoned, or would face continuing surveillance or harassment, including being prevented from accessing employment in either the public or private sector.
In terms of the applicant’s claim to fear harm by reason of his use of social media to criticise the government the Tribunal notes and accept the following observations in the DFAT report:
5.25 According to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities. In such cases the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.
Likewise in relation to the applicant’s claim that the authorities in Iran may seek to extract information from him about his work as an interpreter for Australian government agencies the Tribunal notes and accepts the country information above which indicates that the authorities have little interest in the activities of asylum seekers conducted outside Iran. Accordingly the Tribunal does not accept that the applicant’s work as a professional interpreter does give rise to a well-founded fear of serious harm or a real risk of significant harm on return to Iran.
The Tribunal does not accept that the applicant would face serious or significant harm as a returnee. The DFAT report of June 2018 provides the following relevant information on the treatment of returnees:
Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. On 19 March 2018, however, Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.
5.23 The International Organisation for Migration (IOM) runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. Authorities will usually question a voluntary returnee on return only if they have already come to official attention, such as by committing a crime in Iran before departing. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region.
The applicant rightly states that if his visa is cancelled he will become an unlawful non-citizen and barred from applying for any other visa. As an unlawful non- citizen he would be required to leave the country. He is currently a holder of an Iranian passport, which he obtained by his own efforts and is thus able to return to Iran in his own right. The Tribunal notes that the applicant claims that on his return to Australia he was questioned at the airport in Iran about his Iranian passport issued in Australia. The Tribunal considers that this level of questioning is a routine practice at entry and exit points of international airports.
In considering the applicant’s claims individually and cumulatively the Tribunal is not satisfied that there is a real chance or a real risk of serious or significant harm to the applicant on his return to Iran.
The applicant maintains that he would not voluntarily return to Iran and as such the consequence of cancelling his visa would be that he would be subject to indefinite immigration detention. The Tribunal notes that given that he is able to enter and reside in Ian by reason of his Iranian passport indefinite detention is not the immediate consequence of the cancelling of his visa but rather his refusal to depart Australia in which he has no legal right to stay.
In summary the Tribunal, having considered the applicant’s response to the s.107 notice and taking into account the prescribed circumstances and other circumstances as set out in the PAM3 is of the view that the applicant’s visa should be cancelled. This is because the incorrect information he provided is significant in determining protection visas. He maintained this incorrect information over a considerable period of time. Further once obtaining a protection visa he clarified his citizenship status, acquired an Iranian passport (which he claimed to have no entitlement to) and returned to Iran (where he claimed he feared harm). The Tribunal does not accept that the cancelling of the applicant’s visa would result in a breach of Australia’s non-refoulement obligations, nor would it result in indefinite detention of the applicant or have any flow on effect to third persons.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision under review to cancel the applicant’s Subclass 866 (Protection) visa.
Irene O'Connell
Deputy Division Head

[2018] AATA 3053

6 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice