1700028 (Refugee)

[2018] AATA 1746

1700028 (Refugee) [2018] AATA 1746 (9 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700028

COUNTRY OF REFERENCE:                  Iran

MEMBER:Mr S Norman

DATE:9 April 2018  

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 09 April 2018 at 3:22pm

CATCHWORDS

Refugee – Cancellation – Protection visa – Iran – Nationality – Stateless – Ethnicity – Faili Kurd – Religion – Shia Muslim – Political opinion – Human rights campaigner – Particular social group – Irregular maritime arrival – Failed asylum seeker – Family member's links to military – Supplied false information – Credibility issues – Australian citizen children – Australian permanent resident wife

LEGISLATION
Migration Act 1958, ss 46, 48A, 101, 107, 109, 140, 189, 198

Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration 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 breached s.101(a) & (b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 12 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s family members (set out below). The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review by his registered migration agent.

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. 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.

6. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   The circumstances of the case and an opportunity to put evidence and submissions

7. Four persons from the same family (including the applicant) appeared before the presently constituted Tribunal on one or more occasions at three separate hearings (either as applicants or witnesses). The family members were the father/husband ([Mr A]– AAT# 1700048), the mother/wife ([Ms A] – 1700180), the present applicant (the son - [the applicant]), and the daughter ([Ms B] - AAT# 1700046). The first three applicants appeared before the present Tribunal regarding the cancellation of their Protection visas. The daughter appeared before a differently constituted Tribunal, for the review of the cancellation of her Return Residence visa.

8. All four applicants agreed (at the hearing of [Mr A]) to the Tribunal considering the evidence from other family members, in each case. That is, [Mr A], [Ms A] and the applicant (the first three persons), all requested the Tribunal to take account of the evidence of [Ms B] (the daughter) prior to finalising their cases. The daughter also issued the presently constituted Tribunal member, permission to consider all evidence in her case.

9. Next, all applicants requested the Tribunal publish its decisions for all applicants at or around the same time. As the case of [Ms B] has recently been finalised, the presently constituted Tribunal is now able to finalise the cases of the first three persons.

10. Next, the Tribunal understands that a principal responsibility is to ensure an applicant is given a real opportunity to put evidence and submissions (including at hearing). At the end of the hearing, the applicant’s migration agent was concerned the Tribunal had put information to the applicant in the course of the hearing that he said was ‘esoteric’ and / or ‘binary’. The Tribunal had put information to the applicant about inter alia departure from Iran, lack of religious practise in Iran; failed asylum seekers; and I had provided the gist of relevant country information for comment. When asked, the only issue then referred to by the migration agent related to the applicant’s lack of religious practise; and specifically why the Tribunal had referred to the pressure for social change in Iran (discussed below). However, the context in which that was put is set out below and the Tribunal is satisfied the applicant was given a meaningful opportunity to provide evidence and submissions.

11. The present applicant also claimed to have undertaken 11 years of education in Iran but to have repeated at least two grades on multiple occasions. He did not obtain a school leaving certificate in Iran. He did claim to have obtained vocational qualifications in Australia (in [a specified] industry). At hearing, the Tribunal focussed on inter alia why the applicant feared harm in Iran for the reasons he had claimed. That being said, after considering the applicant’s responses to the material questions asked at hearing, I am satisfied he was able to provide meaningful responses to the questions asked. Therefore, and notwithstanding the agents concerns, I am satisfied the applicant was given a real opportunity to put evidence and submissions at hearing.

12. The migration agent also requested copies of all country information used by the Tribunal to be sent to his office. However, the Tribunal was satisfied the applicant was given a real opportunity to comment after providing the gist of same. The Tribunal therefore declined the request; after noting the agent had access to publicly available country information that corroborated the issues the Tribunal referred to. The agent proposed to submit a FOI request.

13. As a final preliminary issue the Tribunal also notes inter alia the English spelling of the family members names varied in the written material. The Tribunal considers the variations are the result of transliteration.

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

14. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with breached s.101(a) & (b) of the Act.

15. The applicant (along with three family members) arrived in Australia as an irregular maritime arrival [in] January 2010.  After being recommended as a refugee in his Refugee Status Assessment (RSA), he lodged an application for a Protection visa (PV) on 12 April 2010. He was granted a PV on 15 April 2010. On 12 August 2016, he was issued a Notice of Intention to Consider Cancellation (NOICC) of his PV under section 109 of the Migration Act 1958. The applicant was advised it appeared he had not complied with sections 101(a) & (b) of the Act.

16. In his PV form, the applicant nominated the following persons as immediate family members (being the family members who arrived with him in Australia as irregular maritime arrivals):

Given name:               [Mr A]

Family name:             [Name]

Date of birth:              [DOB]

Relationship to client: Father

Citizenship:                Stateless

Given name:               [Ms A]

Family name:             [Name]

Date of birth:              [DOB]

Relationship to client: Mother

Citizenship:                Iran

Given name:               [Ms B]

Family name:             [Name]

Date of birth:              [DOB]

Relationship to client: Sister

Citizenship:                Stateless

1. At question 19 of the Part C of Form 866, when asked his citizenship at birth, the applicant said “Iraqi”.  At question 20, when asked for his current citizenship, the applicant did not respond.  At question 21, when asked if he held any other citizenship, the applicant said “no”. At question 41, when asked where he feared persecution, the applicant said “Iraq & Iran”. At question 42, when asked why he left “that country”, the applicant said “please see RSA attachment”. At question 43, when asked what he feared may happen if he returned to Iraq & Iran, the applicant said “please see RSA attachment”. At question 44, when asked who he feared may harm him if he returned to Iraq & Iran, the applicant said “please see RSA attachment”. The applicant’s RSA statement, stated inter alia:

   I was born in Iran on [date]… I am [stateless and] a Shia and a Faili Kurd.  My father is a Faili Kurd and my mother is Iranian. [The applicant] said he was recognised as a Faili Kurd because of his father.  He fears that if he was forced to return to Iran he would be at risk of being harmed because he is stateless and because of his ethnicity as a Faili Kurd.

2. Regarding the applicant’s departure from Iran and travel to Australia, he said he had travelled to [a location] (in Iran), and enquired about obtaining an illegal or forged passport.  One of his friends told him there was a bazaar [and] there was person who could help him.  Around two weeks before the family departed Iran, the applicant ‘found this person and paid him for passports’ (“in total about USD [amount]”).  The applicant initially paid him around USD [amount], and this included part payment for the irregular travel to Australia. He paid the remaining USD [amount] in [another country]. The applicant said that “we” flew out from Teheran airport and travelled to [a specified country].  He then explained the rest of the travel to Australia.

3. At hearing, the Tribunal put to the applicant that country information it had seen had identified (words to the effect) the difficulties of departing Iran on a false passport, and that it was commonly safer to travel unlawfully across one of the land borders (as it was claimed his older brother [Mr C] had done[1]). In the applicant’s case he initially said his ‘whole’ family had allegedly departed Iran on false passports. Though the Tribunal understands it is possible (if very difficult) to obtain false passports that allow for departure from Iran via an airport, given all the adverse credibility findings herein, and the country information considered, the Tribunal does not now believe the applicant and his family obtained false passports to depart Iran, or that they departed Iran unlawfully (this is also based on the below discussion).   

   [1] See DFAT Country Information Report, Iran, 21 April 2016; though publicly accessible UK Home office reports assist with this (ie see the UK Home Officer, Country information and guidance: illegal exit, Iran, July 2016).

4. Regarding Iraq, the applicant said there is a war in Iraq, and at least in Iran he ‘probably won’t get killed’.  He also said he did not believe he could get Iraqi citizenship because they ‘kicked his father out of Iraq when he was young’.  He also said he believed he would be at risk of harm in Iraq due to the conflict between the Shia and Sunni. Be that as it may, and for the reasons stated herein, the Tribunal is satisfied the applicant is a citizen of Iran. Accordingly, I have not further considered Iraq in this decision record.

   Preliminary consideration – and applicant’s response to NOICC letter:

5. When discussed at hearing, the applicant repeatedly confirmed that all his problems in Iran were principally if not solely due to him being a stateless Faili Kurd.

6. The applicant said he was initially unable to respond to the Department NOICC letter based on his memory alone, and that he would need to get all the Department documents before responding. However, it was claimed all information he had provided was true and correct.  It was also claimed the information “imported into the delegate’s [NOICC] had been selectively copied and pasted for the sole purpose of presenting a set of forceful and insurmountable cancellation grounds”.

7. By statutory declaration of 7 December 2016,[2] the applicant said inter alia he had not yet reviewed his own migration files; there were some factual errors including his father’s date of birth (which he said was [date] and not [date]); that his grandmother’s correct name is [name] and not [name]; and that all other claims are true and correct. The applicant had also said some biographical details relating to family members had been omitted in the PV applications.  This was done on the advice of his people smuggler.  The applicant then admitted that he had not declared two of his brothers on his PV form (being [Mr D] - born [DOB] – aka [alias]; and [Mr C] – born [date]). The applicant then admitted that [Mr D] entered Australia in early 2000 and was granted a PV.  He said [Mr D] had advised him he had obtained his Iranian documents by payment of a bribe; and that [Mr D] is not an Iranian citizen; but that [Mr D] is now an Australian citizen. 

   [2] DIBP – from folio 67; also see statutory declaration dated 20 March 2017 – Tribunal – from folio 40. 

8. After considering the applicant’s evidence, I am not satisfied that any claimed inconsistency in information put to the applicant is material to this decision.

9. Next, the applicant claimed that his other brother [Mr C] (in [Country 1]) was a political activist and had joined a peaceful struggle for ethnic Arab regional autonomy (known as Khalgh-e Arab). It was claimed that [Mr C] had been jailed in Iran for reason of his political opinion; that [Mr C] then fled Iran illegally (across the border); and that [Mr C] was a refugee in [Country 1] (for reason of his political opinion) but that he had been hospitalised since 2010 as result of “suspicious injuries during a short trip to [Country 2]”.  It was claimed that [Mr D] had visited [Mr C] in [Country 1] on two occasions “but [no-one else] had been able to travel to [Country 1]”.  

10. Next, the applicant said he is living with his wife ([name] – DOB. [deleted][3]) and had been since July 2014.[4]  He said he has a son born [date].  He said he and his wife were expecting a second [child]. He said he is a qualified [occupation] and works full-time. He said the cancellation of his visa had meant he was unable to work in Australia[5] (though based on oral evidence provided at his [sister]’s hearing - which it was agreed the Tribunal may have regard to – the applicant continues to work in Australia).

    [3] Tribunal – from folio 40.

    [4] DIBP – folio 48.

    [5] Tribunal – from folio 40.

11. Next, by statutory declaration dated 20 March 2017,[6] the applicant claimed he could not seek travel documents from the Iranian embassy (in Australia) as he could not allow the government of Iran to know his protection claims as this would ‘increase his risk of persecution …in the event of forced removal from Australia’. However, it was subsequently discovered that his sister had returned to Iran on four separate occasions (inter alia for cheaper [medical treatment]) after arriving in Australia with the applicant and other family members. Therefore, the Tribunal is not satisfied the applicant has any risk of harm in Iran, for reason of applying for travel documents.

    [6] Tribunal – from folio 40.

12. Next, at the hearing and in contrast to the above claim, the applicant said he would in fact apply for a passport from the Iran Embassy in Australia, and his rejection would be proof of his being stateless. The migration agent said (words to the effect) this would constitute ‘strong evidence’ the applicant was stateless. However, the Tribunal said it would make no request for any information from the Iranian embassy (and none was forthcoming); given I had no real way of establishing if the applicant had undertaken this request properly. That being said, for all the reasons set out herein I remain satisfied the applicant is an Iranian citizen.

    Further evidence of false information lodged by the applicant:

13. [In] January 2015, the Department’s Identity Investigation Section completed an identity assessment based on the applicant’s claimed family composition.  As result of that investigation, evidence existed that the applicant provided incorrect information in his PV application about his family composition, and about whether or not he was an Iranian citizen. The relevant information follows:

    [Mr D] (previously known as [name] - or [name]):

14. The applicant’s older brother ([Mr D]) arrived in Australia as an irregular maritime arrival [in] December 2000 (around ten years prior to the applicant and other family members).  [Mr D] had later been granted a PV. [Mr D] had not been referred to by the applicant in his PV form (though he now concedes that [Mr D] is his brother). As part of his PV, [Mr D] claimed his citizenship as Iranian. [Mr D] also claimed he had a “birth certificate” and a “military/doc completion”.  When asked about his family composition, [Mr D] provided the following information:

31.      Details of father

32.      Full name:                  [Mr A]

33.      Date of birth:              [age] y.o.

34.      Where living now:      Iran

35.      Occupation:               [Occupation]

Details of mother

Full name:                  [Ms A]

Date of birth:              [age] y.o.

Where living now:      Iran

Occupation:               [Occupation]

Details of brothers and sisters

Name:   [Mr C]

Year of birth:               [date]

Current location:        Iran

Name:    [Applicant]

Year of birth:               [date]

Current location:        Iran

Name:   [Ms B]

Year of birth:               [date]

Current location:        Iran 

1. [Mr D] also provided details of the passport he used for travel to Australia, and said the ‘passport was genuine – from Iran with his name and photograph’. [Mr D] also provided evidence of his military service being undertaken, between “1997 – 1999 Compulsory military service”. According to country information, only Iranian citizens are required to undertake military service.[7] [Mr D] also provided his then bio-data details (he subsequently changed this name  while in Australia):  

   [7] See UK Home Office, Country Policy and Information Note, Iran: Military service, Version 1.0, October 2016.

37.      Family name:   [Name] 

38.      Given names:   [Mr D]

39.      What other names have you been known by:           [Alias] (nickname)

1. In [Mr D]’s application for a PV, amongst other things he said he was an Iranian citizen from birth.  When then asked, he said he had close relatives who were NOT in Australia, and he provided the following details:

41.      Family name:             [Name]

42.      Given names:             [variant spelling of Mr A]

43.      Date of birth:              [age]

44.      Citizenship:                Iranian

45.      Relationship to applicant 1: Father

Family name:             [Name]

Given names:   [variant spelling of Ms A]

Date of birth:              [age]

Citizenship:                Iranian

Relationship to applicant 1: Mother

Family name:             [Name]

Given names:   [Mr C]

Date of birth:              [age] years

Citizenship:                Iranian

Relationship to applicant 1: Brother

Family name:             [Name]

Given names:   [variant spelling of applicant's name]

Date of birth:              [age] years

Citizenship:                Iranian

Relationship to applicant 1: Brother (being the applicant)

Family name:             [Name]

Given names:   [variant spelling of Ms B]

Date of birth:              [age] years

Citizenship:                Iranian

Relationship to applicant 1: Sister

1. The family composition claimed by [Mr D], suggests that he is the applicant’s brother (as was conceded by the applicant); that [Mr D]’s father ([variant spelling of Mr A's name] – born [date]), is the applicant’s father ([Mr A] – born [different date]); that [Mr D]’s mother ([variant spelling of Ms A's name] – born [date]), is the applicant’s mother ([Ms A] - born [different date]); that [Mr D]’s brother ([variant spelling of the applicant's name]  – born [date]), is the applicant ([applicant's full name] – born [different date]); and that [Mr D]’s sister ([variant spelling of Ms B's name] – born [date]), is the applicant’s sister ([Ms B] – born [same date]).  

2. As stated herein, the applicant subsequently conceded that [Mr D] is his brother. At hearing, the applicant said he had omitted any mention of his brother [Mr D], on the advice of his people smuggler. The applicant also said that [Mr D] had in fact obtained a false Iranian passport, and the Tribunal notes that [Mr D] departed Iran ten years before the applicant and before more sophisticated departure safeguards were in place.[8]

   [8] DFAT Country Information Report, Iran, 21 April 2016; see 5.38 & 5.46. 

3. Post hearing submissions lodged on behalf of the applicant included a statutory declaration dated 4 May 2017 from [Mr D] (the brother).  That stated inter alia that he was not an Iranian citizen;  that the Iranian documents he lodged were false; that he only provided this information on the advice of his people smuggler; that he was in fact a stateless Faili Kurd; that he did not change his name by deed poll to disassociate himself from his family members who unlawfully travelled to Australia shortly after his name was changes; that even though he had sworn the prior information was true and correct, this was actually false, but the new information was true and correct; and that everything claimed in his family’s PV cases was correct.

4. However in his PV form, [Mr D] had sworn that his family members (parents and siblings) were citizens of Iran. He had also claimed to have become an Iranian citizen at birth. This was at a time when there was no apparent benefit in him so doing. [Mr D] had also provided a statutory declaration on 4 May 2017 regarding the reasons he changed his name (which he did shortly prior to the applicant and other family members arriving in Australia). He stated that he found that people had difficulty pronouncing his name so he officially changed his name. He agreed that the change of name took place around the time his family arrived in Australia in 2010. However, he claims that he did not change his name to conceal his identity as the Department had his pre-existing records and those records had not been changed.

5. The Tribunal notes however, that [Mr D]’s existence was not mentioned by the applicant, and that this may have been due to [Mr D] being accepted by the Department as an Iranian citizen. However, while the more recent differing evidence may be understandable (given [Mr D] now understands how it may benefit his family), the Tribunal is not satisfied that [Mr D] is a credible witness (particularly given his apparent willingness to provide false information to the Australian authorities), and I reject his new evidence as false.  

6. After considering the evidence, this is one reason that satisfied the Tribunal the applicant is a citizen of Iran.

   [Mr E]:

7. The applicant’s uncle [Mr E] ([who] declared himself to be an Iranian citizen) arrived as an irregular maritime arrival [in] April 2013.  As well as providing a National ID card, as part of his RSA submissions, [Mr E] provided the following information:  

Family name:             [Name]

Given name/s:           [Mr E]

Citizenship:                Iran 

Details of father

Family name:             [Name]

Given name/s:           [Mr G]

Citizenship:                Iran

Details of the mother

Family name:              -

Given name/s:           [Ms G]

Citizenship:                Iran

Details of siblings

Family name:             -

Given name/s:           [variant spelling of Mr A]

Date of birth:              [different DOB][9]

Citizenship:                Iran

Family name:              -

Given names:   [Ms F]

Date of birth:              -

Citizenship:                Iran

[9] By statutory declaration dated 20 March 2017, the applicant said the reason for this “error” was “unknown to us”. The applicant then said the father told him he had longstanding personal issues with the “paternal brother”.

1. [Mr E] also claimed he had avoided military service “for many years but eventually had undertaken 18 months … duration of service: 1987”.  Five months after he arrived in Australia (in April 2013), [Mr E] requested permission to leave Australia.  He was issued with a lassiez passer by the Iranian Embassy in Canberra in order to assist his return to Iran.  The Tribunal notes that a lassiez passer can be issued to an Iranian citizen to facilitate travel. In the circumstances I am satisfied that [Mr E] is a citizen of Iran – something that was conceded by the applicant at hearing.

2. By statutory declaration dated 20 March 2017,[10] the applicant said his paternal uncle ([Mr E]) departed Australia and left his wife and a [daughter] in Australia. The applicant did not know why this occurred. The family composition that was declared by [Mr E], indicated he is the applicant’s uncle. [Mr E] had advised that his brother is [variant spelling of Mr A's name], born [date], and that he is an Iranian citizen.  It therefore appears that this is the applicant’s father ([Mr A] - born [different date]). This is also something that was conceded by the applicant at hearing.

   [10] Tribunal – from folio 40.

3. Regarding the information provided by [Mr E], the applicant said he could not comment.  However, he did say that many Faili Kurds who had been able to secure Iranian citizenship, had done so through the payment of bribes.

4. However, after considering the evidence, this is part of the reason that satisfied the Tribunal the applicant is a citizen of Iran.

   [Mr A]:

5. The applicant’s father [Mr A], arrived in Australia as an irregular maritime arrival [in] January 2010 (along with the applicant and other family members). As part of his RSA, [Mr A] provided the following information:

Family name:             [Name]

Given name:              [Mr A]

Citizenship:                Stateless – born in Iraq

Details of father

Full name:                  [variant spelling of Mr G]

Details of mother

Full name:                  [Ms G]

Details of brothers and sisters

Name:   [Ms F]

1. In [Mr A]’s application for a PV, he also provided the following information:

Given name:              [Mr A]

Family name:             [Name]

Date of birth:              [DOB]

Place of birth:             Iraq

Relationship to client: Self

Country of residence: Australia

Citizenship:                Iraqi

Given name:              [Ms A]

Family name:             [Name]

Date of birth:              [DOB]

Place of birth:             Iran

Relationship to client: Wife

Country of residence: Australia

Citizenship:                Iran

Given name:              [Applicant name]

Family name:             [Name]

Date of birth:              [DOB]

Place of birth:             Iran

Relationship to client: Son

Country of residence: Australia

Citizenship:                Iraq

Given name:              [Ms B]

Family name:             [Name]

Date of birth:              [DOB]

Place of birth:             Iran

Relationship to client: Daughter

Country of residence: Australia  

Citizenship:                Iraqi

Given name:              [Name]

Family name:             [Name]

Date of birth:              Unknown

Place of birth:             Iraq

Relationship to client: father

Country of residence: Deceased

Citizenship:

Given name:              [Name]

Family name:             [Name]

Date of birth:              Unknown

Place of birth:             Iraq

Relationship to client: Mother

Country of residence: Deceased

Citizenship:

Given name:              [Ms F]

Family name:             [Name]

Date of birth:              Unknown

Place of birth:             Iraq

Relationship to client: Sister

Country of residence: Iran

Citizenship:                Iraqi

1. The family composition declared by the applicant’s father ([Mr A]), indicated that [Mr E] is the applicant’s paternal uncle. The Tribunal notes there are inconsistencies and variations in some of the bio-graphical details listed (including the spelling of names), however I am satisfied there is nonetheless a material consistency between the evidence provided by varying sources.  Therefore, the Tribunal is satisfied that [Mr E] (an Iranian citizen) is the applicant’s uncle and that [Mr D] is the applicant’s brother. At hearing, the applicant conceded that [Mr E] was his uncle.

2. After considering the evidence, this is another reason that satisfied the Tribunal the applicant is a citizen of Iran (given his uncle was a citizen of Iran).

3. Regarding his uncle ([Mr E]), the applicant said that some Faili Kurds had obtained Iranian citizenship (though he later said his uncle worked for [the military] and possibly obtained his Iranian citizenship ‘that way’); where close relatives had not been able to (and the Tribunal accepts this may be correct in some cases). He also said that his brother [Mr D] (with whom the applicant is in partnership at a [business] in [Australia]) had subsequently said that all his past evidence about his Iranian citizenship was false and he obtained same through bribery. However as stated at hearing, the cumulative impact of the adverse credibility findings could eventually satisfy the Tribunal the applicant (and his family) is a citizen of Iran. Coupled with the concession that inter alia he had omitted to reveal the identity of two siblings (being [Mr C] and [Mr D]), the Tribunal was not satisfied the applicant was a generally credible witness and I reject his new evidence as false.  

4. In the circumstances, this is also part of the reason that eventually satisfied the Tribunal the applicant is a citizen of Iran.

   Findings regarding the breach of sections 101(a) & (b) of the Act: 

5. Relevant country information stated that by operation of the Iranian nationality law (in particular Article 976), children acquire their Iranian citizenship from their father.  As the applicant’s brother and uncle are Iranian citizens, I am satisfied that the applicant’s father is also an Iranian citizen. As the father is an Iranian citizen, I am satisfied the applicant is an Iranian citizen. Further, I am satisfied the applicant withheld this information in his PV form. 

6. Based on the information before it and the findings made herein, the Tribunal is satisfied the applicant did not answer all questions in the PV form correctly; and that he in fact knowingly provided incorrect information. I am therefore not satisfied the applicant is stateless as he claimed.  I am satisfied he is an Iranian citizen. Given this finding, the Tribunal proposes to accept the applicant (and his family) departed Iran lawfully on a passport in his own name.

7. The Tribunal is therefore satisfied the applicant was granted a PV based on information that is incorrect. I am satisfied that information was material to the grant of the applicant’s PV. The Tribunal is satisfied the applicant has not complied with s.101(a) of the Act, as he has not correctly answered question 20 of Part C, regarding his current citizenship.

8. The Tribunal is also satisfied the applicant has not complied with s.101(b) of the Act. That is because I am satisfied he has provided incorrect information regarding inter alia family members (questions 8, 9 and 11 of Part B of Form 866); his citizenship at birth being Iraqi (question 19 Part C of Form 866); whether he was a citizen of any country (when he said ‘no’); and in various questions in the Form 866, the applicant had continuously claimed to be stateless and had continuously not declared family members.

9. For these reasons, the Tribunal finds that there was non-compliance with s.101(a) & (b) of the Act by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

10. As the Tribunal has decided there was non-compliance in the way described in the notice 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). 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 applicant 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 applicant

    ·     the subsequent behaviour of the applicanyt 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 applicant 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 applicant to the community.

11. Whilst 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’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

    Regarding the prescribed circumstances set out in r.2.41 of the Migration Regulations

    ·    The correct information

12. For reasons set out above the correct information is that the applicant was born in Iran and is an Iranian citizen.

    ·    The content of the genuine document (if any)

13. The prescribed circumstances are not relevant in the present case because the s.107 notice relied solely on section 101, not on s.103 (relating to bogus documents).

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

14. As referred to above, the applicant’s claims for protection were based principally (if not solely) on his claimed lack of legal status in Iran (as a stateless Faili Kurd). The Tribunal considers that the decision to grant him a PV was based on the incorrect information he gave to the Department, namely his claim to be a stateless person. For all the reasons set out herein, the Tribunal is not now satisfied the applicant is a person in respect of whom Australia has protection obligations. However, given the Tribunal has resolved this matter on an alternate basis, I have not considered this extensively herein.  

    ·    the circumstances in which the non-compliance occurred

15. The applicant conceded he had deliberately withheld information relating to his two undeclared brothers – on the advice of his people smuggler. The applicant denied providing incorrect information relating to whether he was an Iranian citizen; however, for the reasons set out above, the Tribunal is satisfied the applicant is an Iranian citizen.   

    ·     the present circumstances of the applicant

16. The applicant has been living in Australia since [January] 2010 (ie over 8 years), he is a qualified [occupation] (having studied in Australia) and has full-time employment. He is currently in a partnership with his brother [Mr D], in a [business]. The applicant is also married (since July 2014[11]) and one child has arisen from that union (though a second child was due in [month]).  His wife (an Australian permanent resident) lodged an application for Australian citizenship [in] November 2015 (the applicant’s child/s being automatically granted Australian citizenship at birth).

    [11] DIBP – folio 48.

17. It is therefore apparent that in the eight years he has resided in Australia, the applicant had established substantial links to the Australian community.

    ·     the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act

18. The Tribunal is satisfied the applicant has continued to provide false information about his Iranian citizenship. The applicant did provide corrections to his family’s bio data details in response to the Department NOICC letter. However, and even assuming those corrections are accurate, the Tribunal is not satisfied they are material to the applicant’s case.

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

19. [In] May 2014 the applicant lodged an application for Australian citizenship.  As part of that application, the applicant did not disclose he was an Iranian citizen.

    ·     the time that has elapsed since the non-compliance

20. The non-compliance occurred when the applicant lodged the application for the PV [in] April 2010.  The Tribunal is satisfied the applicant has resided in Australia for a substantial period.

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

21. There is no information before the Tribunal that the applicant has breached any law in Australia, otherwise than discussed herein.

    ·     any contribution made by the holder to the community 

22. It is claimed the applicant is [an occupation] and owns and operates a business with [employees] (though at hearing, he explained he is in partnership with his brother, and only around [number] persons are employed). At hearing, he also confirmed that he is not a member of any clubs, organisations or groups.

23. However, the Tribunal accepts the applicant is making a contribution to the community in the operation of his business.

    ·     other matters (including protection claims)

24. There are no persons in Australia whose visa would, or may, be cancelled as a consequence of the cancellation of the applicant’s visa.

25. Next, Australia is a signatory to the Convention on the Rights of the Child (CROC), and has an obligation to ensure that in all actions concerning children, the best interests of the child is a primary consideration.  The Tribunal notes this requires a decision maker to have regard to the consequences of cancellation, including whether a child will be separated from a parent.  The applicant has one - possibly two - children born in Australia. Based on the findings made herein, I am satisfied the applicant’s child/s are entitled to Iranian citizenship. Be that as it may, there is a risk that if the applicant’s visa is cancelled, he may be separated from his infant child/s. The Tribunal understands the applicant’s family (his wife and child/s) could return to Iran with him (should they choose); however the family wish to remain in Australia.  

26. If the applicant’s visa is cancelled, he would be subject to s.46(1) of the Act, barring him from applying for a further visa in Australia (including a BV) unless the Minister exercises his non-compellable discretion. Further, if the applicant’s visa is cancelled he would be subject to the s.48A(1B) bar. He would also become an unlawful noncitizen and liable to detention unders.189 of the Act and removal under s.198 of the Act.

1. An International Treaties Obligations Assessment (ITOA) was conducted - on 23 September 2016.[12] The Tribunal also understands that a further ITOA would be conducted prior to the applicant being removed from Australia.

   [12] DIBP – folio 43.

2. The Tribunal wishes to state that given all the findings herein, including the willingness of the applicant to deceive the Australian authorities, I am not satisfied he is a generally credible witness. The Tribunal’s discussion of the applicant’s protection claims follows:

   Faili Kurds who hold Iranian citizenship

3. Regarding his ethnicity (allegedly a stateless Faili Kurd), the applicant said he had never been married because he was a Faili Kurd and because he did not have a “proper education and no good finances”.  He said he did not have any national ID.  He also said even if he could marry his children would be in the same situation as himself. By statutory declaration dated 20 March 2017,[13] the applicant said he feared the Basij in Iran; and that they could “accuse him of anything”.  He said he had been arrested many times by the police or the Basij.  Regarding education, the applicant said he had completed 11 years of education over a 13 year period in Iran. Regarding employment, the applicant said he did not have a right to work in Iran. 

   [13] Tribunal – from folio 40.

4. The applicant also said he was arrested for “selling things in the street”. He said he was not always arrested as ‘normally’ people would be questioned and searched.  He said if he was selling items ‘they’ would ‘collect everything just take him to the van’.  The authorities would become violent if a person resisted or “answered back”.  The applicant said he was beaten on three occasions when it was discovered he was a stateless Faili Kurd. As a Faili Kurd he could not complain to the authorities. The Tribunal notes that stateless Faili Kurds may be harassed in this way given they have no legal right to work. However, Iran citizens are not harassed in the same way or at all, for selling items. Again the applicant confirmed at hearing, and on more than one occasion, that all the harm he experienced in Iran, was principally if not solely due to him being a stateless Faili Kurd.

5. The Tribunal is now satisfied the applicant is an Iranian citizen. None of the country information considered, including in any of the sources cited herein, has satisfied the Tribunal that Faili Kurds who have obtained Iranian citizenship, are treated materially differently to other Iranian citizens. In the circumstances, I am not satisfied the applicant was subject to the harm he claimed, in Iran.

6. Further, based on the accepted evidence, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Iran for reasons arising from his being a Faili Kurd who holds Iranian citizenship.

   Non-practise of Shia Islam

7. Regarding his religion, the applicant said he was a Shia Muslim but that he “mainly believed in God rather than a religion”. As noted at the hearing (words to the effect), the Tribunal understood that numerous surveys, including one by the magazine Asr-e Ma (“Our Era”), have shown that most Iranians under the age of 25—who make up 50% of the overall population—consider themselves agnostic.[14] Millions of Iranians born to Muslim parents do not attend mosque or perform daily prayers. The World Values Survey noted that Iran’s Muslim population has a weekly mosque attendance rate of less than 30% of the population (one of the lowest in the Muslim world and half that of Muslim countries like Indonesia (60%) and Pakistan (70%)).[15] A 2003 survey found that rates within Tehran alone were lower still, where “just 6 % of survey respondents said that they attend the congregations every week, while a total of 40% reported that they never attended the congregations”.[16] Reports on Islam in Iran frequently note the lament of the Iranian clergy that much of the population not only fails to attend mosque but also do not perform their daily prayers.[17] This has not, however, resulted in any kind of backlash against such persons or of the enforcement of such obligations in the same way that local authorities enforce bans on public dress codes and displays of intimacy (codes which apply to all persons in Iran regardless of their religion).[18] No more recent country information appears to contradict this. Regarding pressure for social change, the country information stated:

   …cynicism is just as strong in the leafy north Tehran suburb of Jamaran, where Ayatollah Khomeini lived. “If you are educated you never vote because you would just make a fool of yourself,” said Negin, a young dentist smoking shisha with four friends – their loose headscarves, makeup and fashionable clothes and boots a reminder of far-reaching social changes of recent years. “It’s easier to live in Iran without thinking about politics,” sighed Melina, a designer.[19]

   [14] CX262833: Pocha, J. ‘Iran’s other religion’, Boston Review, Summer 2003.

   [15] CISLIB21784: Tezcur, G.M., Azadarmaki, T. & Bahar, M. ‘Religious Participation among Muslims: Iranian Exceptionalism’, Critique: Critical Middle Eastern Studies, 15:3, fall 2006, p.221.

   [16] CISLIB21784: Tezcur, G.M., Azadarmaki, T. & Bahar, M. ‘Religious Participation among Muslims: Iranian Exceptionalism’, Critique: Critical Middle Eastern Studies, 15:3, fall 2006, p.226.

   [17] CISLIB17095: Baktiari, B. ‘Iranian Society: A Surprising Picture’, in: The Middle East Institute, The Iranian Revolution at 30, 29 January 2009, p.80; CX130987: ‘IRAN: Drugs and prostitution “soar” in Iran’, BBC News, 6 July, 2000.

   [18] CX153188: Swiss Refugee Council, ‘IRAN: Christians in Iran’, 18 October 2005.

   [19] CX6A26A6E1611: "Iran elections: reformists seek political gains but face apathy in key poll", Guardian (Unlimited) (UK), 25 February 2016,

8. After putting the gist of the country information to the applicant at hearing, he said his lack of religious practise in Iran would “100%” cause problems for him on return. The Tribunal understands the applicant said he did not practise Shia Islam in Australia (at the end of the hearing the applicant wished the Tribunal a happy Easter, but no claim was made the applicant was Christian). Citing the Tribunal’s reference to the country information about pressure for social change, the applicant’s migration agent also said (at the end of the hearing) the country information cited by the Tribunal was too simplistic (which led him to suggest the country information was ‘esoteric’ and / or ‘binary’). The agent said that in work and other areas a non-practising Shia Muslim in Iran may be harmed, (words to the effect) if not now but in a few years (no corroborating country information was lodged). The agent said the applicant may not have understood the relevance of the country information put to him. However, after discussing the issue with him, the Tribunal is satisfied the applicant was given an opportunity to provide a meaningful response. That said, the country information does not support the conclusion that non-practising Shia Muslims in Iran, and without more, have a real chance of suffering serious (or significant) harm.

9. Based on the country information considered above and the accepted claims, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Iran, for reason of his non-practise of Shia Islam.

   The applicant’s claimed political opinion

10. At hearing, the applicant said that while in Australia he was engaged in posting comments on-line which were critical of the Iran regime. He said he had undertaken same on [social media] (where he claimed to have [followers]), and on a website for an organisation called [Organisation 1]. He said he was ‘active’ in commenting about human rights in Iran. He said he was active in the campaign against cruelty, political executions and he sought to defend innocent persons. At hearing, and after discussing same, the Tribunal put to him (words to the effect) his evidence did not appear to be sufficiently detailed to indicate he was engaged in any political commentary. Be that as it may, the applicant agreed to provide further evidence (including translated documents) by COB 26 April 2017. The migration agent then requested a brief adjournment, which was granted.

11. When the hearing resumed, the applicant said he posted information about human rights in Iran, that [Organisation 1] contacts journalists in Iran, and information was then posted on the [Organisation 1] website. However, based on the lack of any detailed evidence before the Tribunal, I am not satisfied the applicant had engaged in any of the political activities he claimed.

12. Post hearing submissions lodged by the agent on behalf of the applicant included ‘[the applicant’s] [social media] entries as proof of his [claimed] political views and social media presence’; however that evidence was in Farsi. When then approving a request for an extension of time to provide further evidence, the Tribunal advised the agent it cannot read any language other than English and evidence not in English should be translated otherwise it would not be taken into account . No translations were received.

13. Regarding the claim to post material on [social media], further post hearing submissions alleged the information was critical of the Iranian government. However, this was in contrast to the applicant’s lack of knowledge about his alleged activities online and the Tribunal notes there does not appear to be any reference to the applicant being named online. When a submitted document was considered, it appeared the reference was made to the Persian calendar date [Farvardin] 1396 (which in the Gregorian calendar is [April] 2017 – ie immediately before the PV cancellation hearing). After considering this evidence, the Tribunal is not satisfied it is evidence of a political opinion and neither do I believe the applicant had or has any intention of repeating same; or importantly, that he was identified. More importantly, the Tribunal was not satisfied the applicant, who operated a car repair business, and had a wife and infant children, had much if any time to engage with such activities in Australia (something the applicant did not dispute at hearing).

14. Based on the country information considered above and the accepted claims, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Iran, for reason of his non-practise of Shia Islam.  

    [Mr C]’s claimed political opinion

15. The applicant claimed that his brother [Mr C] (in [Country 1]) was a political activist and had joined a peaceful struggle for ethnic Arab regional autonomy (known as Khalgh-e Arab). It was claimed that [Mr C] had been jailed in Iran for reason of his political opinion; that [Mr C] then fled Iran illegally (across the border); and that [Mr C] was a refugee in [Country 1] (for reason of his political opinion) but that he had been hospitalised since 2010 as result of “suspicious injuries during a short trip to [Country 2]”.  It was claimed that [Mr D] had visited [Mr C] in [Country 1] on two occasions “but [no-one else] had been able to travel to [Country 1]”. However, the applicant and his family did not suffer any serious harm in Iran, in the few years they remained there after [Mr C]’s departure.

100.   Further, the applicant did not claim to have a politically active brother in or from Iran at the time of lodging his PV application. The Tribunal does not accept it is plausible he would not have understood this might benefit his case; and I reject the evidence about [Mr C]’s political activities as false.

101.   For these reasons, and given I am not satisfied the applicant is generally credible, I am not satisfied he has a real chance of suffering serious or significant harm in Iran for reason of [Mr C]’s claimed activities.

[Ms B]’s (the sister’s) claimed political opinion

102.   The applicant’s sister explained that some persons, being her, [Mr C] (the applicant’s brother), [(her former fiancé)] and [a named person] (presently residing in [another country]), had commenced a group called [Organisation 1] around 7 or 8 years ago (around the time of her departure from Iran). She repeated that her brother ([Mr C]) had been assaulted in [Country 2] and was hospitalised for some time. She said the family feared this assault may have been due to [Mr C]’s political activities which were mainly conducted outside Iran. She said her former [fiancé] had been assassinated in Turkey (where he had then been living). She then said that after [Mr C] was assaulted and hospitalised for a lengthy period (it was claimed he was in a coma for 18 months and at hearing it was claimed he had suffered brain damage), she and the applicant had commenced to perform his work for [Organisation 1] (though I have rejected as false, the applicant had engaged in this). The sister then said they would secretly contact journalists in Iran (the sister contacted Iranian journalists in Iran, by Skype, about events in Iran). The sister would then publish information on the [Organisation 1] website about human rights issues in Iran. The Tribunal notes there is intensive internet monitoring by the authorities in Iran.[20]  

[20] See DFAT Country Information Report, Iran, 21 April 2016.

103.   However, it was claimed that only the names of the founders had been published. The sister said she and her brother had been working on the [Organisation 1] website anonymously since [Mr C] had been assaulted (in 2010). At hearing, when then asked if she travelled for work (also discussed herein), she conceded she had returned to Iran on four occasions since arriving in Australia (the last time around two years before the hearing). The migration agent said she had been in a de facto relationship with an Iranian man in Australia. The sister said these trips were ‘very dangerous’ but she had stayed with the mother of her current partner while in Iran (and she had accessed the cheaper [medical] treatment offered in Iran).  Post hearing submissions included evidence of [Ms B]’s “Iranian visa’s inserted on her Convention Travel Document” (which she apparently had no concern showing the Iran authorities). Medical evidence also referred inter alia to her suffering from [a health condition].[21] A post hearing statutory declaration from [Ms B] also sought to confirm hers and her family’s evidence set out herein.

[21] Letter dated 3 May 2017.

104.   However, and notwithstanding the lack of detailed evidence, the Tribunal will accept the sister had/has some very limited involvement in a group called [Organisation 1]. I am satisfied this work was entirely anonymous and the sister was safely able to return to Iran on four occasions, because she understood her involvement was not known to the Iran authorities. In a subsequent statutory declaration, the sister conceded she did not fear the Iran government, only the Iran people due to being stateless.

105.   Next, the sister said the applicant (her brother) was also involved in the work for [Organisation 1]. However, the applicant’s evidence about this work was so vague that I am not satisfied the applicant, who has a wife and infant children, and who works full time in partnership with his brother [Mr D] in a [business], even had the time to engage with [Organisation 1]. If this is incorrect, then I am not satisfied the applicant has had more than a very limited and anonymous and peripheral discussion about [Organisation 1], and I am not satisfied there is a real chance he would suffer serious or significant harm for this reason, should he return to Iran. I am satisfied this alternate conclusion is also supported by the fact the sister said at hearing that she only requested the applicant to do some work and he did not need to know (words to the effect) all the work of the [Organisation 1] group.

106.   Next, the sister ([Ms B]) said that in the last (around) 18 months, she had been engaged as a [details deleted].

107.   The sister provided written evidence after the Tribunal hearing (including in a statutory declaration). [Details deleted]. In a subsequent statutory declaration, she had said she did not fear the Iran government, only the Iran people due to being stateless (which the Tribunal accepts is evidence she had not been critical of the Iran regime). She believed the fact she was issued four visitor visas to Iran was evidence she was not a citizen (though the Tribunal remains satisfied the applicant is a citizen of Iran). She said that in Iran she did not have to work or appear in public places, but the Tribunal understands she was still able to visit her partner’s family and attend for [medical] treatment in Iran (which is apparently cheaper in Iran). She was terrified on one occasion when she was questioned at the airport in Tehran (but she apparently was still able to travel without harm). Based on the evidence before it, the Tribunal is not satisfied the applicant has a real chance of suffering harm in Iran, for any reason arising from [Ms B]’s claimed activities.

108.   The Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Iran, for any reason discussed under the above sub-heading.

The applicant’s uncle ([Mr E])

109.   The applicant said he feared his uncle ([Mr E] – who had arrived as an irregular maritime arrival in Australia [in] April 2013; and returned to Iran approximately five months later). He said that when he was in Australia “we” had been open with the uncle (who had formerly worked with [the military] in Iran), and he now feared the uncle would cause him problems on return. The applicant said his uncle would harm him as he was not religious. However, the country information considered did not satisfy the Tribunal that not being religious, would give rise to a real chance of harm for the applicant on return to Iran. More importantly, the Tribunal was sufficiently satisfied the applicant was not generally credible that I find this claimed fear to be false. Next, the applicant said when his uncle was in Australia, ‘they’ had advised him (the uncle) of their claimed activities. However, after discussing his evidence and based on the findings made, I am not satisfied the applicant has engaged in any activities in Australia that would cause him to have a real chance of suffering serious or significant harm on return to Iran.

110.   Next, the migration agent said the cumulative impact of inter alia the unlawful departure from Iran (which the Tribunal has rejected as false), the fact of being a failed asylum seeker (discussed herein), and the failure to practise Shia Islam (also discussed herein), would cause the applicant to be harmed in Iran. However, even considering same cumulatively, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Iran.

111.   The Tribunal is also sufficiently satisfied the applicant is not a credible witness, that I have rejected any claimed fear (arising from [Mr E]’s engagement with the [military], his political opinions or any other material claim), as false.

112.   Based on the accepted evidence, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Iran, for any reason relating to [Mr E].

Failed asylum seeker:

113.   When discussed at hearing, the applicant said that after having resided in Australia for (then) around seven years, if he returns to Iran he may be considered to be a spy. However, as noted elsewhere, the applicant’s sister had returned to Iran on around four separate occasions since arriving in Australia and the Tribunal is not satisfied she was harmed. Further, none of the accepted evidence has satisfied the Tribunal the applicant has a real chance of being considered (ie) a spy or traitor should he return to Iran. The country information stated:

5.33 Iran says it does not accept involuntary returnees. However, in practice, border authorities regularly accept Iranians with valid Iranian travel documents returned involuntarily or even those without documentation if persuaded they are Iranian. …  
5.34 From DFAT’s anecdotal observation at airports, a voluntary returnee (complete with IOM bags) does not attract much interest from authorities amongst the large regular international movements of Iranians. Credible sources have told DFAT that returnees will generally move quickly through airports – usually Tehran Imam Khomeini – without official interest. Where temporary travel documents have been issued by Iranian diplomatic representatives overseas, authorities at the airport will be forewarned about a person’s return because of Iran’s sophisticated government systems. Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport, credible sources have told DFAT that they will generally only be questioned if they had done something to attract the specific attention of authorities. The vast majority of people questioned would be released after an hour or two.
5.35 …DFAT is also not aware of any specific barriers for voluntary returnees to travel to their home region, including for unaccompanied women. Some women from minorities or rural areas may feel culturally unable to travel unaccompanied within Iran.[22]

[22] DFAT Country Information Report, Iran, 21 April 2016.

114.   The Tribunal presumes the applicant’s Iranian passport has expired. However, based on evidence from other Iranian PV applicants, he could apply for another passport at the Iranian embassy in Australia. Further, based on the country information, even if the applicant returned to Iran on temporary travel documents, I am not satisfied he would have a real chance of suffering serious harm for this reason.

115.   Next, in a DFAT report dated 19 April 2011 and in the aforementioned more recent DFAT Country Information Report, it is stated (words to the effect) that ‘it is unlikely Iranian authorities would prosecute an individual simply for claiming asylum overseas’ but noted that ‘it is possible that a known dissident may be prosecuted in this way’.[23] However and as stated herein, the Tribunal is not satisfied the applicant has any relevant profile that would cause him to be of adverse interest to the authorities or other persons on return to Iran. After the gist of the country information was put to the applicant for comment, he believed he would be considered a spy. However, the country information did not satisfy the Tribunal this was correct. Further, and as stated above, I am satisfied his sister was able to return unharmed.

[23] Department of Foreign Affairs and Trade 2011, Response to IRN 11738: Iran - Article on returned asylum seekers and people exiting Iran with false documents, 19 April <CX263145>

116.   Based on the accepted claims (including that which relate to the Tribunal’s satisfaction about the applicant’s lack of profile), I am not satisfied he would have a real chance of being subject to harm amounting to persecution for having sought asylum in Australia, or for having resided in Australia for around 8 years.

117.   Next, based on the evidence before the Tribunal, I am not satisfied that Australia’s international obligations would be breached by the cancellation of the applicant’s visa.

Conclusion

118.   Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program.  By his deception, the applicant has retained significant benefit.  I am satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing his claims to be granted a PV.  I am satisfied that as an Iranian citizen the applicant would have access to the benefits and rights accruing to Iranian citizenship on his return.

119.   However, the applicant has resided in Australia for around 8 years and this is a substantial period of time. In that time he was married (since July 2014[24] - to an Australian permanent resident wife); and he has one (and possibly two) Australian citizen child(ren). He has no known criminal record. He is a qualified [occupation] and presently works in partnership in a [business] with inter alia his brother [Mr D] (which employs other persons). His wife (an Australian permanent resident) lodged an application for Australian citizenship [in] November 2015. The Tribunal notes the applicant’s family (his wife and child/ren) could return to Iran with him if his visa is cancelled; however the family wish to remain in Australia. The Tribunal also notes the applicant’s parents and siblings have been allowed to remain in Australia.

[24] DIBP – folio 48.

120.   After considering all the evidence cumulatively, and notwithstanding the applicant’s duplicity, the Tribunal does not accept it is reasonable that the applicant’s visa be cancelled, given the substantial impact it would have on his immediate family members in Australia (particularly his Australian permanent resident wife and Australian citizen child/ren).   

121. The Tribunal has therefore decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. However, and after having regard to all the relevant circumstances (discussed above), the Tribunal concludes that the visa should not be cancelled.

DECISION

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

Mr S Norman
Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101Visa applications to be correct

A non‑citizen must fill in or complete his or her application form in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)    giving particulars of the possible non‑compliance; and

(b)    stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)    stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)    setting out the effect of sections 108, 109, 111 and 112; and

(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)     requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)    otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)    visas of a stated class; or

(b)    visa holders in stated circumstances; or

(c)    visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)    visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.