1700048 (Refugee)
[2018] AATA 2073
•9 April 2018
1700048 (Refugee) [2018] AATA 2073 (9 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1700048
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 3:12pm
CATCHWORDS
Refugee – Protection visa – Cancellation – Iran – False information provided – Stateless Fali Kurd – Married to an Iranian woman – Social discrimination and harassment in Iran – Non-practicing Shia Muslim – Immediate family are Iranian citizens – Family well settled in Australia – Australian citizen grandchildren – Health conditions
LEGISLATION
Migration Act 1958, ss 46, 46A, 48A, 100, 101, 103, 107, 109, 140, 189, 198
Migration Regulations 1994 r 2.41 Schedule 2CASES
MIAC v Khadgi (2010) 190 FCR 248Any 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 made by a delegate of the Minister for Immigration (on 30 December 2016) to cancel the applicant’s 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 had not complied with s.101(a) of the Act (“all questions on it are answered”); and that he had not complied with s.101(b) of the Act (“no incorrect answers are given or provided”). The issue in the present case is whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 21 April 2017 to give evidence and present arguments. As noted below, witness evidence was also provided at the Tribunal hearing. 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.
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
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.
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
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 present applicant ([Mr A] – AAT# 1700048), his wife ([Ms B] – 1700180), his son ([Mr C]), and his daughter ([Ms D] - 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.
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, the applicant, [Ms B] and [Mr C] (the first three persons), all requested the Tribunal to take account of the evidence of [Ms D] (the daughter) prior to finalising their cases. The daughter also issued the presently constituted Tribunal member, permission to consider all evidence in her case.
Next, all applicants requested the Tribunal publish its decisions for all applicants at or around the same time. As the case of [Ms D] has recently been finalised, the presently constituted Tribunal is now able to finalise the cases of the first three persons.
Next, in a statutory declaration dated 20 March 2017,[1] the applicant said he had a “very poor memory and concentration and may not be able to provide accurate answers to the questions” he may be asked at hearing. He said this was due to his “poor health”. He then explained that he had only recently become aware that his Protection visa had been cancelled, as his “family did not tell him anything about any of this due to his ill health”. He said he is “currently taking [medications]”. He said that in the “past 10 years, he had [medical conditions] which required…[surgery] about two years ago” at a [City 1] hospital. He also said his doctors told him to “stay away from stressful situations because it may lead to another [medical condition]”. The Tribunal accepts the medical evidence about the applicant.
[1] Tribunal – from folio 60.
That being said, a principal responsibility of the Tribunal is to ensure that an applicant has a real opportunity to put evidence and submissions in support of their case; including at a hearing. In this case and after having discussed the claims at a hearing, where the applicant was assisted and accompanied by all the above-named family members and his migration agent, I am satisfied the applicant was given such an opportunity.
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?
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 101(a) of the Act (“all questions on it are answered”); and with s.101(b) of the Act (“no incorrect answers are given or provided”).
The applicant (born [date]) arrived in Australia (with other family members) as an irregular maritime arrival on 13 January 2010. He said he was a stateless Fail Kurd. He said he was born in Iraq but had departed Iraq when he was “9 or 10 years of age”[2] (being around [year range]). He had then resided in Iran and had subsequently married an Iranian citizen female.
[2] DIBP – folio 18.
The applicant lodged an application for a Refugee Status Assessment (RSA) and later a Protection visa (PV), and he was subsequently granted a PV on 15 April 2010. By letter of 12 August 2016, he was issued with a Notice of Intention to Consider Cancellation (NOICC) of his visa.[3] The applicant responded to this notice on 12 December 2016.
[3] DIBP – folio 85.
In the NOICC letter, it was noted that in the RSA of 26 January 2010, the applicant had provided the following information:
1. Family name: [Name]
Given name: [Mr A]
Citizenship: Stateless – born in Iraq2. Details of Father
Full name: [Mr E]
3. Details of mother
Full name: [Ms F]
4. Details of brothers and sisters
Name: [Ms G]
In the applicant’s subsequent 14 April 2010 PV form, at question one of Part B of the Form 866 (the PV form), the applicant provided his bio-data details:
5. Family name: [Name]
Given name: [Mr A]
Date of birth: [date]
At question eight of Part B of the PV form, when asked “are there any members of the family unit who are in Australia and not included in this application?”, the applicant said “see attachment”. At question nine of Part B of the PV form, when asked “are there members of the family unit who are not in Australia at the time of application?”, the applicant said “yes” and then stated “please see attachment”. At question 11 of part B of the PV form, when asked “do any of the persons included in this application and named in question 1 have close relatives who are not in Australia at the time of application?”, the applicant said “yes” and then stated “please see attachment”. In an attachment provided with the PV form, and referred to at questions 8, 9 & 11 of Part B, the following information was provided:
6. Given name: [Mr A]
Family name: [Name]
Date of birth: [Date of birth 2]
Place of birth: Iraq
Relationship to client: self
Country of residence: Australia
Citizenship: Iraqi7. Given name: [Ms B]
Family name: [Name]
Date of birth: [Date]
Place of birth: Iran
Relationship to client: wife[4]
Country of residence: Australia
Citizenship: Iran8. Given name: [Mr C]
Family name: [Name]
Date of birth: [Date]
Place of birth: Iran
Relationship to client: son
Country of residence: Australia
Citizenship: Iraq9. Given name: [Ms D]
Family name: [Name]
Date of birth: [Date]
Place of birth: Iran
Relationship to client: daughter
Country of residence: Australia
Citizenship: Iraqi10. Given name: [Mr E]
Family name: [Name]
Date of birth: unknown
Place of birth: Iraq
Relationship to client: father
Country of residence: deceased
Citizenship11. Given name: [Variation of Ms F’s name]
Family name: [Name]
Date of birth: unknown
Place of birth: Iraq
Relationship to client: mother
Country of residence: deceased
Citizenship:12. Given name: [Ms G]
Family name: [Name]
Date of birth: unknown
Place of birth: Iraq
Relationship to client: sister
Country of residence: Iran
Citizenship: Iraqi[4][4] Married in [1984] (DIBP – folio 138 (reverse side)).
At question 19 of Part C of the PV form, when asked “your citizenship at birth?”, the applicant said “Iraqi”. At question 21 when asked “do you hold any other citizenship or are you a national of any other country?”, the applicant said “no”. At question 22, when asked “do you have a right to enter or reside in, whether temporarily or permanently, any country other than your country of nationality or your former country of habitual residence?”, the applicant said “no”. At question 23, when asked when and why he lost his citizenship, the applicant did not provide a response. At question 41, the applicant said he was seeking protection and did not wish to return to Iraq or Iran. At question 42, when asked why he left his country the applicant said “please see RSA statement”. At question 43, when asked what he feared if he returned, the applicant said “please see RSA statement”. At question 44, when asked who he thought may mistreat him on return, the applicant said “please see RSA statement”. At question 45, when asked why he thought he would be harmed if he returned, the applicant said “please see RSA statement”. At question 46, when asked if he thought the authorities would protect him on return, the applicant said “please see RSA statement”. The applicant’s RSA statement, stated (in part):
I was born [in] Iraq on [date]… I am a [stateless] Fail Kurd and believe that I am stateless because I have never had any documentation and I was forced to leave Iraq when I was nine or 10 years old. Since then I have lived in Iran with no status … even though my wife is Iranian.
[The applicant said he was married in 1984 but wasn’t able to remember the exact date. His wife] is an Iranian citizen. I have two children … My children were both born in Iran and do not have Iranian citizenship. I believe that I am stateless. I was removed from Iraq when I was nine or 10 years old. We were thrown over the border and Iranian government took all the people to 3 different camps. We were sent to the [a] Camp in Shiraz… Which is where both my parents died. My father died first from the stress of the situation … Because we lost everything. This was about two years after we went to camp and in about nine months later my mother died… I was about 12 years old then. My sister was about four years younger than me. My sister is still alive and living in Iran. She is married to an Iranian and therefore because her husband has identification she now has Iranian citizenship.
I have heard that some Kurds have a right to return to Iraq…[and the] Iranian government says that we are Iraqi. However the Iraqi government doesn’t accept Fail Kurds and they won’t let us into the country. … Also my wife is Iranian so she would not be allowed [to reside in Iraq]. The situation is very dangerous in Iraq, we see the war in Iraq on TV and this causes me extreme stress. I fear that if I was forced to return to Iraq or Iran I would be at risk of being harmed because of my ethnicity as a Fail Kurd.
After my parents died … my father’s friends came from Ahvaz and agreed to be guardian for us and took us to Ahvaz. We live with him for about five years. He was an Iranian citizen but was from the Arab tribe. He treated us very well [though the applicant later said he had some ‘personal issues’ and he had lost contact with this man and his own brothers]. He died about 10 or 12 years ago.
I was not able to attend school because I didn’t have any identification. So I started working [shortly] after I went to live with him. At that time I did have any problems with employers because he was behind … supporting me. We never received any documentation or cards from the Iranian government. I don’t know about my parents – I was only child.
I am a Shia Muslim by name but I just believe in God. [The applicant also said] we were never treated as human beings in Iran. There was no respect for other people. This is why we quit to religion …
[The applicant said he] had a [medical condition] and … decided we needed to leave Iran. I couldn’t work, my son couldn’t work and life was very very difficult. But we didn’t have the financial capacity to leave. When my wife’s father died [in 1979] we receive some money from his inheritance… But we didn’t get the inheritance until about five months ago [ie 30 years after the death] when the house was sold. Until then my wife’s mother has been living in the house… We [also] borrowed a little money from my wife’s brothers and sisters … We would rather drown in the ocean, we were even willing to risk the life of our two children. We knew in Australia human rights are respected… After we knew we had the money, one of my son’s friends said there is a person [who] can organise a passport for each of us because we had a passport problem. I’m not sure how much my son paid for the passport. We wanted to come to Australia because we heard and saw on television that human rights respected… We flew from Tehran to [another country] … [the applicant then explained how the family travelled to Australia]
I fear that if I was returned to Iran I would suffer from the same terrible conditions that I have lived in before I left – I would be constantly harassed and beaten, with no right to work … To support myself or my family. In any case I do not believe that the Iranian government would accept me because I have no right to live there. I fear if I was returned to Iraq I would be killed because there you have to fight or join a political party. I have seen on the television what it is like and I do not [think] I could survive. In any case I do not believe that the Iraqi government would let me come with my family. There is nowhere safe for me in Iraq or Iran.
When I had the [medical condition] he [the applicant’s son] started to help me [selling [things] on the street]. Before the [medical condition] I was working as [an occupation] but I couldn’t do this after the [medical condition]. I couldn’t get a job because I didn’t have identification and my children didn’t have identification so we sold [things] in the street, which was illegal.
In Iran Basij (pro-government militia) would constantly beat us and harass us. For example, tens of times we would [be] beaten because selling things in the street was illegal. We have to earn a living so that was the only thing that we could do so we were selling [things] in the street. We would buy [things] in the bazaar where the wholesalers are and then resell them. I couldn’t do manual work. So they would constantly come while we were selling [things] and harass us. This would happen every day …
The Basij would constantly ask for ID and they knew that we didn’t have any ID so they would beat us and harass us … Sometimes the Basij would come out of the car and beat us up. We would run away before they could arrest us. But they would then take all the goods that we were selling so we had nothing. About six months ago when they came to try and beat us my wife grabbed [things] and ran. She fell and was badly injured because she fell into a drain. Her leg and hand on her right side were badly injured. Her right shoulder is still painful and she still has scars on her leg. She needed stitches in her back but we didn’t go to doctors. We didn’t have the money to go to the doctor and she was embarrassed it was on the private parts of her body. Even though she is a citizen she still would have to pay for medical treatment and we didn’t have the money to pay for it.
Our children had no right to study – with great difficulty they have both finished high school but they didn’t get any degree from the high school. They were constantly being kicked out of the school and my wife would have to go and get them reinstated. Because my wife had an Iranian birth certificate, sometimes I would just beg the teachers and they would take them back. Sometimes [they] have to pay money and they would be reinstated. My son had it very difficult so he went to night classes with adults. He went to the day high school and the night classes. It wasn’t constant. My daughters school was easier, they were more sympathetic but at least once a month [sometimes more] she was kicked out. But it was easier to get them to take her back. We will try to find some connection, through a teacher or something and would beg them to help.
I and my children had no right to work. When I had a [medical condition] they wouldn’t let me in the hospital until my family borrowed money and paid the hospital. Even when I was [an occupation] sometimes the employer wouldn’t pay me and I couldn’t do anything. Sometimes I would be on the job for a month and they would only pay for 10 days but I couldn’t do anything. We were bullied constantly … The other [workers] would dob me in straight away because they wanted to work and I was in competition with them. The Basij would beat us up and we couldn’t do anything. This would happen every second or third day… the situation in Iran is very bad. Everybody is very poor and this is why the employer wouldn’t pay. We cannot get protection from the Iranian government because if I go to complain… then the first thing they would do is they would arrest me and beat me up from not having any identification.
I did not have the right to go to any other country. There is nowhere in Iran where I can go where you would be any different. … [There are]… fanatic everywhere.
At question 65 of Part C of the PV form, the applicant signed the declaration which stated inter alia that all information he had provided was “complete, correct and up to date in every detail”. As stated above, the applicant was granted a PV on 15 April 2010.
Preliminary consideration:
When discussed at hearing, the applicant repeatedly confirmed that all the aforementioned problems arose principally if not solely due to he and his children being stateless Faili Kurds in Iran. The applicant had also referred to various (ie) scarring and damage on his [body] (allegedly from being beaten). However, the Tribunal noted he had worked [in] Iran for very many years, and such injuries appeared to be consistent with (and typical of) that type of work. The now [age] year old applicant disagreed, and said he was beaten by the Basij, for reason of being a stateless Faili Kurd in Iran.
The applicant’s written response to the Department NOICC letter:
By letter of 24 August 2016, the applicant requested (from the Department) an extension of time to respond in order to obtain records under the Freedom of Information Act. The applicant was advised by Department email on 16 September 2016 that they did not have an extension of time to respond to the NOICC. However, that any information provided prior to the decision being made would be taken into account by the delegate. On 16 September 2016, the applicant (by his migration agent) provided the following information:
We have been instructed to submit the following response with respect to the notices of intention to cancel our clients protection versus.
·My clients have collectively advised us that in order to provide a comprehensive response to the cancellations grounds outlined by the delegate in her (NOICC), they need to review all the documents contained on their Department files.
·They cannot rely on their memory to recall what they have said in the interviews, the nature of the documents they have submitted with their PV applications and [their] protection claims without the opportunity to review their files which date back to January 2010 – some six years and six months ago.
·They have advised, however, that at time of their application [Ms B] [the wife] had declared her citizenship as Iranian.
·They also take the view that the information which has been imported onto the delegate’s (NOICC) to cancel their protection visas have been selectively copied and pasted for the sole purpose of presenting a set of forceful and insurmountable cancellation grounds.
·My clients will not be able to put forward any comprehensive response to the allegation raised by the delegate until and unless they have been given the opportunity to review full copies of their PV files.
We respectfully request the delegate to delay making a decision until our FOI requests to access the files are finalised. We will attempt to prepare our client’s responses as soon as we are in receipt of the files.
On 12 December 2016, the applicant’s agent responded to the NOICC with an email titled “Re: [Mr C] ([date of birth], M); [Mr A] ([date of birth], M). The email contained the following statutory declaration from the applicant’s son dated 7 December 2016[5] (in part):
[5] DIBP – from folio 111.
I [Mr C] … do solemnly and sincerely declare the following:
…..
3. Please note the letter of [NOICC] contains some factual errors. My father’s date of birth is not [date]. His correct date of birth is [date].
4. My grandmother’s correct name is [Ms F] not [variation of Ms F’s name]…
.....
7. Every other claim that I have raised in my statement of protection claims, to the best of my memory, is true and correct in every detail.
8. I wish to state that … some biographical details relating to our family members have been omitted in a protection visa applications.
9. The reason for this is the advice given to by the person who organised a journey from Iran to Australia. This man told me that we should not disclose any other one of our family members, especially the one who was already in Australia, in our asylum applications.
10. In our protection visa applications, we have not declared two … [sons] named, [Mr H] (dob. [date] – aka: [Mr H] as he has officially changed his name registered by Registry of Births, Deaths and Marriage); and [Mr I] (dob. [date]).
11. [Mr H] entered Australia in early 2000 (DIBP letter states his PV application date is 2002 which is incorrect) and successfully applied for asylum. He was held until late 2001 when his RRT application was granted.
12. [Mr H] has told us that he obtained his Iranian documents by way of payment of bribes to organise his departure from Iran to Australia. Like the rest of us, [Mr H] was not recognised as an Iranian citizen either …
…..
19. With regards to the information provided by [Mr J] [the applicant’s brother], I cannot comment on those. What I can say however, is the fact that a lot of deported Iraqi Faili Kurds had been able to secure Iranian citizenship to various means – mostly by payment of bribes to corrupt authorities …
The response to the NOICC letter also provided:
·A letter from [a doctor], dated [November] 2016 (advising the applicant suffers from inter alia major depression[6]).
·A letter from [a second doctor], dated [November] 2016 (advising a range of mental health and other health concerns[7]).
·A marriage certificate for [Mr C] and [a named person], dated [June] 2013.[8]
·A birth certificate for [a family member], dated to July 2015.[9]
[6] DIBP – folio 114.
[7] DIBP – folio 114 (reverse side).
[8] DIBP – folio 113.
[9] DIBP – folio 112.
The Tribunal has had regard to all of same prior to drafting this decision.
Subsequent evidence before the Department:
On 7 January 2015, the Department Identity Investigation Section completed an identity assessment based on the applicant’s claimed family composition. As a result of information obtained through this investigation, it was concluded the applicant had provided incorrect information in relation to his family composition. Further, it was later determined that by application of Iranian nationality laws, the applicant is an Iranian citizen. Other adverse evidence follows:
[Mr H] (aka. [Mr H’s original name] – the applicant’s son):
[Mr H] (the applicant’s son) arrived in Australia as an irregular maritime arrival on 31 December 2000. [Mr H] was omitted from the PV application of the applicant (and other family members who accompanied him to Australia in 2010). As part of [Mr H]’s PV form, he provided his bio-data details as follows:
13. Family name: [Name]
Given names: [Mr H’s original name]
Citizenship: Iranian
It was explained that after arriving in Australia, [Mr H] had changed his [name]. When asked if he had Iranian documents, [Mr H] had confirmed he had a Birth certificate and a military service completion document ([year range] compulsory military service). [Mr H] also confirmed he had departed Iran on his genuine passport. Information about his family members included:
14. Details of father
Full name: [Mr A]
Date of birth: [Age] [years old]
Citizenship: Iranian
Where living now: Iran
Occupation: [Occupation]15. Details of mother
Full name: [Ms B]
Date of birth: [Age] [years old]
Citizenship: Iranian
Where living now: Iran
Occupation: housewife
16. Details brothers and sisters
Name: [Mr I]
Year of birth: [Year]
Citizenship: Iranian
Current location: Iran
17. Name: [Mr C]
Year of birth: [Year]
Citizenship: Iranian
Current location: Iran
18. Name: [Ms D]
Year of birth: [Year]
Citizenship: Iranian
Current location: Iran
In his PV form, [Mr H] had also provided the following information:
19. Family name: [Name]
Given in: [Mr H]
What other names have you been known by: [name] (nickname)
Details of your current travel document
Type of document: passport
Nationality on document: Iranian
Your citizenship at birth: Iranian
In his PV, [Mr H] said he was a “young single Iranian man” and an Iranian citizen. He said he had travelled to Australia on a genuine Iranian passport in his own name. He said he underwent military service between [year range]. According to country information, the Tribunal understands that (with some exceptions not relevant to this case) male Iranian citizens are required to undertake military service. Based on the evidence before it,[10] and notwithstanding the more recent claims that the documents provided by [Mr H] were (words to the effect) all false and obtained by bribery, the Tribunal is satisfied that [Mr H] is an Iranian citizen.
[10] Including but not limited to ‘Princeton University Iran Data Portal 2013’, Nationality Law, 17 July < Accessed 12 August 2014 <CIS29471>; see Article 976 of the Iranian Civil Code.
In his written response to the NOICC, the applicant said his son [Mr H], had obtained his false Iranian identity documents by paying bribes to corrupt officials, and that he is not an Iranian citizen. However, [Mr H] has consistently stated he is an Iranian citizen; admitted to having an Iranian passport, an Iranian birth certificate, and a military service completion document. These documents support his claim to be an Iranian citizen. Further, there did not appear to be any plausible reason that [Mr H] would claim to be a citizen of Iran, and lodge the aforementioned documents, if same was not true.
In summary [Mr H] declared his family composition as follows:
· [Mr H] said his father (the present applicant) is [Mr A], (then) [age] years old / born [year] and an Iranian citizen. The Tribunal is satisfied this is the present applicant – being [Mr A] born [date]. · [Mr H] said his mother is [Ms B], [age] years old / born [year] and an Iranian citizen. It appears this may the applicant’s wife, [Ms B], born [date]. · [Mr H] said his brother is [Mr C] / [variation of Mr C’s name], [age] years old/born [year] and an Iranian citizen. The Tribunal is satisfied this is the applicant’s son, [Mr C] born [date]. · [Mr H] said his sister is [variation of Ms D’s name], [age] years old/born [year] and an Iranian citizen. The Tribunal is satisfied this is the applicant’s daughter, [Ms D], born [date].
The applicant later conceded that [Mr H] was his son and he had not named [Mr H] when asked to do so in his RSA or PV form.
Post hearing submissions lodged on behalf of the applicant included a statutory declaration dated 4 May 2017 from [Mr H]. That stated inter alia that he was not an Iranian citizen; that the Iranian documents he initially lodged were false; that he only provided this information on the advice of his people smuggler; that he was a stateless Faili Kurd; that he did not change his name by deed poll to disassociate himself from his other family members who unlawfully travelled to Australia shortly after this; that even though he had provided false information in the past, this new evidence was true; and that everything claimed in his family member’s files was correct. However, given that [Mr H] had until recently sworn that he was an Iranian citizen, it appears he will provide any evidence (false or otherwise) that he thinks may enhance his or his family’s case. While this may be understandable, the Tribunal is not satisfied this makes him a credible witness.
That being said, the Tribunal is satisfied that [Mr H] is an Iranian citizen, and this is one of the reasons that satisfied the Tribunal the applicant is an Iranian citizen.
[Mr J] (the applicant’s brother):
[Mr J] (the applicant’s brother) arrived in Australia as an irregular maritime arrival on 21 April 2013. As part of his RSA, the following information was provided:
· Family name: [Name]
Given name: [Mr J]
Citizenship: IranianIdentity documentation details – document/card type: National ID card
· Details of father
Family name: [Name]
Given names: [Mr E]
Citizenship: Iranian· Details of mother
Family name: -
Given names: [Ms F]
Citizenship: Iranian· Details of siblings
Family name: -
Given names: [Mr A]
Date of birth: [Date]
Citizenship: Iranian· Family name: -
Given names: [Ms G]
Date of birth: -
Citizenship: Iranian
[Mr J] also said he had undertaken military service from [year] - and for 18 months duration. [Mr J] had declared himself to be an Iranian citizen. Five months after arriving in Australia, he requested to depart. He was issued with a lassiez passer by the Iranian Embassy in Canberra in order to facilitate his travel and he returned to Iran. The fact that [Mr J] was able to obtain this document is a strong indicator that he is an Iranian citizen. As was the Department delegate, the Tribunal is satisfied that [Mr J] is an Iranian citizen.
In summary, the family composition declared by [Mr J] suggested he is the applicant’s brother:
· [Mr J] stated his father is [variation of Mr E’s name] and an Iranian citizen. The Tribunal is satisfied this is the applicant’s father, [Mr E] / [variation of Mr E’s name]. · [Mr J] stated his mother is [Ms F] and an Iranian citizen. The Tribunal is satisfied this is the applicant’s mother, [Ms F] / [variation of Ms F’s name]. · [Mr J] stated his brother is [Mr A], born [date] and an Iranian citizen. The Tribunal is satisfied this is the applicant. · [Mr J] stated his sister is [Ms G] and an Iranian citizen. The Tribunal is satisfied this is the applicant’s sister, [Ms G].
As did the delegate, the Tribunal acknowledges the inconsistencies and variations in the spelling of some of the aforementioned names, however, the substantial consistencies between names and family composition has satisfied the Tribunal that [Mr J] is the applicant’s brother. The Tribunal is also satisfied that [Mr H] and [Mr J] are Iranian citizens as they had initially claimed and consistently repeated.
As noted herein, the applicant subsequently conceded that [Mr J] was his brother, but that he and his brother had little to do with each other. He also said that [Mr J] had joined Sepah and or Basij, and his citizenship had been arranged after that. The applicant said he did not support the Basij or the Sepah and would not join same (and the Tribunal notes that many Iranians do not wish to join the Basij or Sepah and same are not harmed for this reason). The Tribunal put to the applicant that country information about citizenship stated:
…a very small number of Iraqis may be able to establish Iranian ancestry (through the paternal line), which would entitle them to Iranian citizenship.[11]
[11] Department of Foreign Affairs 2011, Status of Faili Kurd refugees and documentation issued to them in Iran, 19 October <CX274742>
Further, Human Rights Watch stated that:
A 2006 law…permits children of Iranian mothers who are over the age of 18 to apply for Iranian citizenship if the parents’ marriage is approved by the state but only confers citizenship if the applicant is not deemed to have a security risk or criminal background and renounces his or her father’s citizenship.[12]
[12] Human Rights Watch 2013, Unwelcome Guests: Iran’s Violation of Afghan Refugee and Migrant Rights, 20 November, UNHCR Refworld, p.68 < Accessed 15 January 2014 <CIS27022>
Accordingly, and based on the evidence, it is possible the applicant and or his children could have obtained Iranian citizenship (though no claim to have done so was made). When asked, the applicant, who claimed he had always sought the best for his children, made no claim that any of them had even sought citizenship in Iran.
That being said, based on the evidence before it, the Tribunal accepts that the applicant’s brother [Mr J], was a citizen of Iran; and this is one of the reasons that satisfied the Tribunal the applicant is an Iranian citizen.
[Mr I]
Both [Mr H] and [Mr J] referred to the applicant’s son [Mr I]. The applicant eventually conceded that [Mr I] is his son. Therefore, the Tribunal is satisfied that in his PV application, the applicant had intentionally chosen to omit that he had one son in [another country] – being [Mr I] (this is also referred to below).
Further findings regarding the applicant’s citizenship
In a statutory declaration dated 20 March 2017,[13] the applicant said he came to know his father-in-law through an unnamed friend. He then “took his job offer and moved from Ahwaz [being south west of Tehran] to another city”. He said this was “mostly because he wished to be away from his two brothers and the family that was raising him”. This occurred in his early teens. He later met and married his wife who was a daughter of his “boss”. He said he now had no “connection with any of his siblings”. He did however mention “[Ms G] [who is his] sister” in the PV form. He said his sister “died over a year or so ago”. The Tribunal understands the applicant “did not have any issues with [Ms G]” and that they “spoke on the phone once every six months or so”. The applicant also said he had no contact with his brothers; though one ([Mr J]) had come to Australia as an irregular maritime arrival in late 2013 or early 2014, with his wife and daughter. [Mr J] had voluntarily returned to Iran (without his family). The applicant’s son ([Mr C]) had explained that unknown to his father (the applicant), after his uncle had returned to Iran, he (the son) had maintained contact with his uncle’s wife (his aunt) and the uncle’s child (his cousin).
[13] Tribunal – from folio 60.
The applicant also had said that after being released into the community in Australia he had attempted to “reconcile his relationship with [Mr J]” but they had “a different political personal view”. He said his brother ([Mr J]) supported the Iranian political establishment and told him he should do the same. The brother also told the applicant the Iranian government would not grant citizenship to people who do not support its legitimacy. The brother said the applicant and his children “deserved to be mistreated and not given any rights in Iran”. The applicant also said he only “met his brother 2 or 3 times in as many months after he moved to [City 1] with his wife and daughter” (the Tribunal now accepts his initial claim at hearing to have not met his brother in Australia was not correct, and this finding was also provided some support by his family who accompanied him to the hearing). The applicant realised that they could not “mend [the] relationship because he [Mr J] supported Hezbollah [ostensibly based outside Iran] and [the applicant] was diametrically opposed to that way of thinking”.
The applicant also said he did not consider ‘them’ (his biological brothers) to be his brothers and he had no relationship with either brother. Further, regarding the information provided by [Mr J], he said he could not comment. He did say that “a lot of Faili Kurds have been able to secure Iranian citizenship through various means - mostly through payment of bribes to the corrupt authorities”. However, in October 2011 DFAT noted that the Iranian authorities were more tolerant of Iraqi refugees (like the applicant) and that this may have an impact on (on at least more recent) citizenship determinations. Further, the applicant had only much later claimed that [Mr J] was in the Basij or Sepah, and his citizenship was acquired by his work with one of those organisations. Be that as it may, regarding access to Iranian citizenship, the country information stated Iranian citizenship is passed to children of Iranian citizen males[14] (note the above country information).
[14] ZZZ105265.E - Iran and Pakistan: The rights and procedures for the foreign-born spouse of an Iranian woman to obtain Iranian citizenship; rights and procedures for a child of an Iranian woman and Pakistani man, born outside Iran, to obtain Iranian citizenship.
Accordingly, and based on the evidence, it is clearly possible the applicant and or his children might have obtained Iranian citizenship (though no claim to have even attempted to do so was made). Again, and given the other adverse credibility findings herein, the Tribunal does not accept this is plausible.
Next, as put to the applicant at hearing the country information indicated it may have been safer to have crossed a land border from Iran to a neighbouring country. The country information stated:
5.29 DFAT assesses that it is possible to leave Iran to flee arrest warrants or charges. This is usually accomplished overland rather than through the main airports. Passport control checks are sophisticated in Iran. An outstanding warrant for arrest would not go undetected at the main airports but it is theoretically possible that an individual could convince an airport officer to allow them to proceed. …. However, even in these cases, there are credible reports from a range of sources that many have been able to successfully cross borders overland.[15]
[15] DFAT Country Information Report, Iran, 21 April 2016.
At hearing the applicant said that all his problems in Iran were principally if not solely due to his having been a stateless Faili Kurd in Iran. However, it was also said his son [Mr I] escaped Iran to Turkey (overland) and had remained there for six years (where he suffered due to inter alia limited economic opportunity). [Mr I] had travelled to Turkey as he was allegedly a political activist in Iran (and had come to the attention of the Iranian authorities). When then asked why he (the applicant) had spent a considerable amount of money to purchase allegedly false passports in Iran, and then travel to Australia, he said inter alia he was too old to make the arduous journey overland. The applicant also said that his son [Mr I] had to suffer many deprivations in this journey. Be that as it may, the Tribunal has not seen any evidence that the alleged deprivations suffered would have prevented the then [age] year old applicant and his family (with adult children), from making such a crossing, particularly given that this was the safer option. It was also the least likely option to cause problems if an allegedly false passport was detected at the airport.
This is a further reason that satisfied the Tribunal the applicant (and his family) is a citizen of Iran; otherwise I am satisfied they would not have chosen to leave Iran via the more difficult, dangerous and expensive route through Tehran airport.
Miscellaneous
Next, in a statutory declaration dated 20 March 2017,[16] the applicant conceded that “some biographical details relating to family members had been omitted from his PV application”. This was because he had relied on the advice of the person who organised his journey from Iran to Australia. He then said he had not declared two of his sons. They were [Mr H] – DOB [date] (now [name]); and [Mr I] – DOB [date]. The applicant said [Mr H] entered Australia in early 2000 (the applicant said the DIBP letter indicating that [Mr H]’s PV application date was 2002 was incorrect). [Mr H] had been granted protection in Australia. [Mr H] is now an Australian citizen. He is married to his Australian citizen wife and has a son aged [number] months. The wife is expecting “their second child mid next year”. The Tribunal proposes to accept that [Mr H] is an Australia citizen, that he is married, and that he has one or two Australian citizen children.
[16] Tribunal – from folio 60.
Next, the applicant claimed the NOICC letter contained errors. These included the applicant’s date of birth (being [date] and not [date]). At question 1 of Part B of the PV form (and in a statutory declaration), the applicant had stated his date of birth was [date]. In the attachment with the Form 66, he stated his date of birth was [Date of birth 2]. However, the Tribunal is satisfied the conflicting information provided by the applicant himself had not assisted to clarify his date of birth. Neither is the Tribunal satisfied that this or any other error, affects the non-compliance outlined in the NOICC.
It was also claimed the applicant’s mother’s name is [Ms F] and not [variation of Ms F’s name]. In the RSA the applicant stated his mother’s name was [Ms F]. In an attachment provided with the PV form, the applicant stated his mother’s name was [variation of Ms F’s name]. However and again, the Tribunal is satisfied the conflicting information provided by the applicant had not assisted to clarify his mother’s name. Neither is the Tribunal satisfied that this error affects non-compliance outlined in the NOICC.
It was also claimed the NOICC incorrectly stated that [Mr H] lodged an application for a PV in 2002. The delegate noted the only date in the NOICC relating to [Mr H] was the date he arrived in Australia (being 31 December 2000). However, [Mr H] did lodge the PV in 2002. However, much of this confusion derived from transliteration and other immaterial errors and the Tribunal is satisfied the NOICC was clear and without material error.
Next, in the written response to the NOICC the applicant stated that a response to the NOICC was submitted without him being able to access relevant records held by the Department. The delegate was (and the Tribunal is) satisfied the applicant had been provided sufficient time to prepare his case even without such records; particularly given the information being discussed was principally about issues (ie the applicant’s family composition) that should presumably be well known to him.
The Tribunal makes the following preliminary findings:
The applicant has now conceded that [Mr H] is his son. Therefore, the Tribunal is satisfied that in his PV form, the applicant had intentionally omitted the fact he had a son in Australia ([Mr H]).
Based on the evidence before it, the Tribunal is satisfied that [Mr H] is a citizen of Iran. As had been initially claimed by [Mr H], though subsequently disputed, I am satisfied that [Mr H] was a citizen of Iran from his birth – and that he would have obtained his citizenship from his father.
Based on the evidence before it, the Tribunal accepts that [Mr J] (the applicant’s brother), is a citizen of Iran (something eventually conceded by the applicant). The Tribunal was unable to locate information that joining the Basij, Sepah or another Iranian intelligence agency would necessarily enable a non-citizen to acquire citizenship (as was claimed). Be that as it may, the Tribunal presumes this is possible. However, given I am not satisfied the applicant is generally credible, and given the other issues that support a conclusion the applicant was a citizen of Iran, I propose to find the applicant’s brother [Mr J], obtained Iranian citizenship in the same way as the applicant.
Next, both [Mr H] and [Mr J] referred to the applicant’s son [Mr I]. The applicant eventually conceded that [Mr I] was his son. Therefore, the Tribunal is satisfied that in his PV form, the applicant had intentionally omitted the fact he has a son in [another country] - being [Mr I].
Next, and as stated herein, the applicant’s claims are principally sourced in him being a stateless Faili Kurd. In the statutory declaration dated 20 March 2017,[17] he said he was deported from Iraq when he was nine or 10 years of age. The applicant was granted the PV on the basis that he satisfied the Minister that he was a person in respect of whom protection was owed under the Refugees Convention. The applicant had consistently maintained he was stateless. This claim was fundamental to the finding that the applicant was a person to whom Australia owed protection. However, and for all the reasons stated herein, I am now satisfied the applicant (and his family) is a citizen of Iran.
[17] Tribunal – from folio 60.
The Tribunal is therefore satisfied the applicant has not complied with s.101(a) of the Act (“all questions on it are answered”).
The Tribunal is also satisfied the applicant has not complied with s.101(b) of the Act (“no incorrect answers are given or provided”), as I am satisfied he provided incorrect information with respect to the following questions on the PV form.
·In the “attachment” referred to at questions 8, 9 and 11 of part B of the PV form, when the applicant did not include details of family members (specifically his sons [Mr H] and [Mr I]).
·At question 21 of part C of the PV form, when asked “do you hold any other citizenship or are you a national of any other country?”, the applicant said “no”. As stated above, the Tribunal is satisfied the applicant is an Iranian citizen.
·In the statement provided in support of the RSA (and referred to in his PV application and referred to questions 42, 43, 44, 45 and 46 of part C of the PV form, with respect to the applicant being stateless and with respect to undeclared family members.
For these reasons, the Tribunal finds that there was non-compliance with sections 101(a) and 101(b) of the Act, by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that 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 visa holder was based, wholly or partly, on incorrect information or a bogus document
·the circumstances in which the non-compliance occurred
·the present circumstances of the visa holder
·the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·any other instances of non-compliance by the visa holder known to the Minister
·the time that has elapsed since the non-compliance
·any breaches of the law since the non-compliance and the seriousness of those breaches
·any contribution made by the holder to the community.
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
For reasons set out above the correct information is that:
othe applicant is a citizen of Iran (and not a stateless Faili Kurd as he claimed).
o[Mr H] and [Mr I] are the applicant’s sons and citizens of Iran.
o[Mr J] is the applicant’s brother and a citizen of Iran. .
As an Iranian citizen, the applicant would have the same rights and opportunities as all Iranian citizens.
·the content of the genuine document (if any)
This prescribed circumstances 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 visa holder was based, wholly or partly, on incorrect information or a bogus document
Based on the findings expressed herein, the Tribunal is satisfied that throughout his visa application process, the applicant withheld information about his family composition and about his citizenship. In the absence of contrary information, the delegate accepted and relied on what the Tribunal is now satisfied is false information (most particularly about the applicant being stateless). I am therefore satisfied the decision was based substantially on incorrect information provided by the applicant.
· the circumstances in which the non-compliance occurred
The applicant has subsequently conceded that he deliberately withheld information about his family composition in his PV application. The applicant has denied providing incorrect information in relation to his citizenship. Given the Tribunal is satisfied the applicant is an Iranian citizen, I am also satisfied that his decision to continue to withhold this information was voluntary and not beyond his control. However, at the time the false information was initially provided by the applicant, he said he misled the Australian authorities based on the advice of his people smuggler.
The Tribunal is therefore satisfied the applicant knowingly and willingly provided incorrect information in an effort to enhance his PV application.
· the present circumstances of the visa holder
The applicant and his family have been living in Australia since 13 January 2010. When discussed at hearing, he did not claim to belong to any clubs, organisations or groups. The applicant has a number of serious health issues for which he is treated in Australia; and the Tribunal accepts this is correct.
Further, the applicant’s wife, three of the applicant’s children and numerous grandchildren also reside in Australia. The Tribunal notes the applicant’s children and grandchildren have been allowed to remain in Australia, and the cancellation of his PV may result in him being forced to return to Iran (with his wife), where no close family members reside.
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The Tribunal notes that it is now satisfied the applicant provided, and continued to provide, false information about his citizenship.
· any other instances of non-compliance by the visa holder known to the Minister
On 6 June 2014, the applicant lodged an application for Australian citizenship. In that application, the applicant did not disclose he was an Iranian citizen.
· the time that has elapsed since the non-compliance
The non-compliance occurred when the applicant lodged the application for the PV on 14 April 2010. Around eight years have elapsed since that time. As did the delegate, the Tribunal believes the withholding of evidence about citizenship was serious. However, the substantial period of time the applicant has resided in the Australian community, without any apparent breaches of other Australian laws, weighs in his favour.
· any breaches of the law since the non-compliance and the seriousness of those breaches
Other than those discussed herein, there is no evidence before the Tribunal that there have been any breaches of the law since the non-compliance occurred.
· any contribution made by the holder to the community.
There is no evidence before the Tribunal of any contributions to the community by the applicant. When asked at hearing, he said he was not a member of any clubs, organisations or groups.
· Persons in Australia whose visa would or may be cancelled consequentially:
There are no persons in Australia whose visas would, or may, be cancelled if the applicant’s visa is cancelled.
· whether Australia has obligations under international agreements that would or may be breached if the applicant’s visa is cancelled
Australia is a signatory to numerous conventions. One of these is the Convention on the Rights of the Child (CROC). Australia has an obligation to ensure that in its actions concerning children, the best interests of the child are a primary consideration. That being said, this does not prevent the cancellation of a visa but it requires a decision maker to turn their mind to the consequences of cancellation. The applicant has four children (three in Australia), all of whom are adults. He has grandchildren, but the Tribunal understands the grandchildren are principally cared for by their own parents.
Further, the Tribunal understands that if the applicant’s visa is cancelled, a further International Treaties Obligations Assessment (ITOA) should be completed by the Department before a decision was made to remove the applicant from Australia. Be that as it may, based on the below country information from DFAT, the Tribunal understands the applicant may not be returned to Iran, if he does not voluntarily choose to depart Australia.
The Tribunal has discussed other protection claims below.
· whether there are mandatory legal consequences which would arise if the applicant’s visa is cancelled
If the applicant’s visa is cancelled he would be subject to s.46A(1) of the Act, which would bar him from making a valid application for a further visa. This would mean, given the applicant was an irregular maritime arrival, that he would be barred from lodging a valid application for a BV. If the applicant’s visa is cancelled, he would also be subject to s.48A(1B) of the Act, which would bar him from making a further application for a PV while in the migration zone. The effect of these provisions is that the applicant would not be able to make any further valid application for a visa while in Australia, unless the Minister intervenes to lift the bars.
Further, if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. That is because I am satisfied he can safely returned to Iran. I also presume he may be granted a BV in Australia, in order to settle his affairs prior to departing.
· Other relevant matters (including protection claims)
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.
Faili Kurds who hold Iranian citizenship
Amongst other things, the applicant said he and his children suffered in Iran due to their being stateless Faili Kurds. In the statutory declaration dated 20 March 2017,[18] the applicant also said due to being a stateless Faili Kurd, he did not receive any education in Iran. He said his children “had a lot of difficulties” growing up in Iran, “solely because of not having any national identification document”. He said (in particular) his son ([Mr C]) was “expelled from school on several occasions”. However, at hearing the applicant conceded that all these harms arose due to his and his family’s being stateless Faili Kurds. For the reasons set out herein, the Tribunal is satisfied this is false, that the applicant is an Iranian citizen, as are his family, and that any harm arising from their allegedly stateless status in Iran is false.
[18] Tribunal – from folio 60.
None of the country information considered, including in any of the sources cited herein, have 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 (or his family) was subject to the discriminatory harm he claimed, in Iran.
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
Regarding his claim that he inter alia is a ‘Shia Muslim by name’ but that he ‘just believed in God’, at hearing and when it was discussed, he initially said he feared harm in Iran due to his (lack of) religious practise. He also said people are “running from religion in Iran”. The gist of the following country information was referred to at the hearing. 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.[19] 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%)).[20] 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”.[21] 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.[22] 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).[23] No more recent country information appears to contradict this.
[19] CX262833: Pocha, J. ‘Iran’s other religion’, Boston Review, Summer 2003.
[20] 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.
[21] 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.
[22] 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.
[23] CX153188: Swiss Refugee Council, ‘IRAN: Christians in Iran’, 18 October 2005.
Given I am not satisfied the applicant is generally credible, I do not accept any adverse attention was directed at the applicant or his children (for a lack of religious practise), Further, based on the country information, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Iran, for reason of his lack of Shia Islam religious practise.
[Mr C]’s claimed political opinion
Post hearing submissions lodged by the agent on behalf of the applicant included ‘[Mr C]’s [the applicant’s son’s] Instagram entries[24] 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.
[24] Which information was claimed to have been “transmitted in a highly intricate communication labyrinth” – see HRA in Iran letter of 18 April 2017.
Regarding the claim to post material on Instagram, further post hearing submissions alleged the information was critical of the Iranian government. However, this was in contrast to the [Mr C]’s lack of knowledge about his alleged activities online and the Tribunal notes there does not appear to be any reference to the [Mr C] being named online. When a submitted document was considered, it appeared the reference was made to the Persian calendar date 14 Farvardin 1396 (which in the Gregorian calendar is 3 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 [Mr C] had or has any intention of repeating same; or importantly, that he was identified. Again importantly, the Tribunal was not satisfied [Mr C], who operated a [business], and had a wife and infant children, had much if any time to engage with such activities in Australia (something [Mr C] did not dispute at hearing).
In the circumstances, the Tribunal is not satisfied that the applicant has a real chance of suffering serious or significant harm in Iran, for reason of [Mr C]’s alleged activities online.
[Mr I]’s claimed political opinion
Next, the applicant then said that [Mr I] (his other son who was omitted from the applicant’s PV form) was a political activist and had joined a ‘peace struggle for ethnic Arab regional autonomy (known as Khalgh-e- Arab)’. He was jailed in Iran for political reasons and had left illegally. [Mr I] was later granted refugee protection in [Country 1]. The applicant then went on to refer to some “suspicious injuries during a short trip to [another country]” in 2010 that [Mr I] had suffered. Those injuries were said to have “led him sinking into a deep coma for about 18 months or so”. [Mr H] had visited [Mr I] in [Country 1] on two separate occasions but none of the rest of the family had been able to arrange travel to [Country 1]. At hearing, the Tribunal put to the applicant that even the people smuggler should know that claiming to have a political activist son ([Mr I] – now in [Country 1]) would have assisted his case. The applicant said he did not mention this to the people smuggler but had decided to take his advice none-the-less.
The Tribunal does not accept it plausible the applicant would not have understood (and relatively shortly after arriving and being placed in immigration detention) that having a political activist son could assist his case. The Tribunal also notes that in its own experience, many Iranian persons were travelling by unauthorised routes from Iran to Australia and that many had claimed to have family members both inside and outside Iran – and it therefore did not appear plausible the applicant would not have mentioned his son’s claimed activities after discussing it with the Iranian cohort arriving in Australia as irregular maritime arrivals (as has been conceded by other Iranian applicants). Also, and given the applicant had apparently paid a considerable amount of money to travel to Australia (with three other members of his family), it did not appear plausible (words to the effect) he would have omitted telling about [Mr I]’s political activities, if same were true. When discussed, the applicant said he was stressed and decided to adopt the advice of his people smuggler. However, the Tribunal does not accept this is plausible and rejects the evidence about [Mr I]’s political activities as false.
Consequently, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Iran for reasons arising from [Mr I]’s alleged political activities.
The applicant’s wife’s evidence about [Mr I]:
100. The applicant’s wife said that her two children ([Mr C] and [Ms D]) were beginning to come to the adverse attention of the Iran authorities given the political activities of [Mr I]. However, and as stated at hearing, the country information considered may suggest that if they had come to the adverse attention of the authorities (ie for walking together in public), this was more likely due to their being suspected of breaching social norms (and their release from any detention could be obtained after their sibling relationship was established). The Tribunal also notes that the son ([Mr C]) is now married and the daughter ([Ms D]) has matured into a [woman]. The Tribunal is not satisfied that they will have a real chance of suffering serious or significant harm on return to Iran, for any reason discussed above.
101. The Tribunal is not satisfied that [Ms D] or [Mr C], or the applicant, had a real chance of suffering serious or significant harm in Iran for these reasons.
[Ms D]’s claimed political opinion
102. The daughter ([Ms D]) said that in the last (around) 18 months, she had been [working] [details deleted].
103. It was claimed the daughter claimed she was publicly named on the website (as [variation of Ms D] – which was not her real name). She claimed that her contact details were also listed on the website or the [workplace] Facebook page (and her real name was listed in her email address published on that site). At the hearing, the daughter eventually conceded she had not [details deleted].
104. [Ms D] provided written claims after the Tribunal hearing (including in a statutory declaration). She said she was attempting to obtain letters in support about her [work] but she believed she had been critical of the Iran government (however, no further evidence of same was lodged). 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 national (though the Tribunal remains satisfied the applicant is a citizen of Iran). [Ms D] said that in Iran she did not have to work or appear in public places (when she had returned), but the Tribunal understands she was still able to visit her partner’s family and attend for [health] 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 after being questioned she was released unharmed and allowed to travel).
105. Post hearing submissions included evidence of [Ms D]’s “Iranian visa’s inserted on her Convention Travel Document” (though this did not even cause her to be questioned by the Iran authorities on three return trips to Iran). A post hearing statutory declaration from [Ms D] also sought to confirm hers and her family’s evidence set out herein.
106. After considering the evidence, the Tribunal is not satisfied that [Ms D] has a real chance of suffering serious harm in Iran, for any reason she claimed.
107. Based on the accepted claims, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Iran, arising from [Ms D]’s alleged activities.
The applicant’s brother [Mr J]
108. The Tribunal is sufficiently satisfied the applicant is not a credible witness, that I have rejected any claimed fear (arising from [Mr J’s] engagement with the Basij or Sepah, his political opinions or any other material claim), as false.
109. Based on the accepted evidence, the Tribunal is not satisfied the applicant has a real chance of suffering harm in Iran, for any reason relating to [Mr J].
The applicant’s health
110. Next, the applicant suffers from various health issues including depression, anxiety and PTSD. The applicant is taking antidepressants and is under the care of a psychologist. He had suffered [medical conditions]. In the statutory declaration dated 20 March 2017,[25] the applicant also said he had been on a disability pension for the past six years in Australia due to “multiple health issues”. He said his wife had been providing him full-time care. He says he is on a “strict regime of high-dose medications to control his” aforementioned health conditions. He also said that in Australia he had “collapsed in a park … and was transported to the hospital in an ambulance”. This had occurred around two years ago and he had [surgery] in a [City 1] Hospital shortly after that. He then referred to his health and his son’s ([Mr I]’s) health and that he wished to see his son [Mr I] before he (the applicant) passed. The applicant then said that should he return to Iran, he would “not be able to afford to pay for the medication and medical treatment and he may die as a result of forced return to Iran”. Further evidence of same was provided after the hearing.
[25] Tribunal – from folio 60.
111. However, as an Iranian citizen the applicant would have access to the health care system and services that are available to all Iranian citizens. The applicant’s wife stated that her husband (the applicant) is very sick and the family had (at least initially) “decided not to expose him to the stress and anxiety of the looming prospects of his visa cancellation. [It was claimed that we] are certain that hearing this news will have a devastating impact on his health and might cause him to have another major episode of [medical conditions]”. However, later evidence indicated the applicant was aware of the visa cancellation process. For instance, on 23 August 2016, the applicant signed a Form 956 – Advice by migration agent / exempt persons of providing immigration assistance. At question 16 of the Form 956, the applicant indicated the appointment related to a “Cancellation process” of a subclass “SC866” visa.
112. Regarding health services available in Iran, the country information stated:
2.9 Figures from UNDP’s 2015 Human Development Report indicate that Iran's health system provides an average 8.9 physicians per 10,000 people. Total estimated health expenditure is 6.7 per cent of GDP. According to the same report, Iran has an average life expectancy at birth of 75.4 years and over the period 2010-2015 experienced average annual population growth rate of 1.3 per cent, with a fertility rate for women of 1.9 births. Government policies which encouraged a higher birth rate during the Iran-Iraq war of the 1980s have resulted in a high proportion of Iran’s population being under 30 years. This youth bulge means there is a high demand for employment and encourages changing social media usage, fashion and music interests.[26]
[26] DFAT Country Information Report, Iran, 21 April 2016.
113. The country information considered by the Tribunal indicated that healthcare is available in Iran. Iran has a well-structured healthcare system, with basic healthcare available to the entire population.[27] Healthcare and public health services are provided through a nationwide network. This consists of a referral system, starting at primary care centres in the periphery going through secondary-level hospitals in the provincial capital and tertiary hospitals in major cities.[28] The healthcare provided by the Iranian government generally only covers low-cost, basic healthcare services. An extensive network of public clinics offers basic care at low cost, and general and specialty hospitals operated by the Ministry of Health and Medical Education provide higher levels of care.[29] Further, the information provided by such commentators as the World Health Organisation,[30] did not indicate that persons who suffer from mental health problems in Iran are treated in a manner that may be termed persecutory. Furthermore, the Tribunal is satisfied the country information indicated that persons in Iran who are affected by mental health problems are generally viewed sympathetically and the government has implemented programs to facilitate mental health care; and that such services are available in (ie) Paveh city[31] (being west south west of Tehran). The Tribunal put the gist of the above to the applicant at hearing. The applicant feared (words to the effect) he would not receive appropriate medical treatment.
[27] ‘Healthcare in the Islamic Republic of Iran’, Tahsili, Z and Brand, L, Lex Arabiae, January 2010, CX316432
[28] ‘Health System in Iran’, Mehrdad, R, The Japan Medical Association Journal, vol. 52, no. 1, January–February 2009, p. 69, CIS21219 .
[29] ‘Healthcare in the Islamic Republic of Iran’, Tahsili, Z and Brand, L, Lex Arabiae, January 2010, CX316432 .
[30] CIS18623: WHO-AIMS report on the Mental Health System in the Islamic Republic of Iran, World Health Organisation/Ministry of Health and Medical Examination, Islamic Republic of Iran, 2006.
[31] CIS36DE0BB1900: Shakeri, J. et al, ‘Exploring the Prevalence of Various Psychiatric Disorders and Commitment of Violence in the Patients Referring to Farabi Educational and Medical Center of Kermanshah’, Life Science Journal 2013;10(4); CIS2F827D92410: Dodangi,N.; Ashtiani, N.H, & B. Valadbeigi, ‘Prevalence of DSM-IV TR Psychiatric Disorders in Children and Adolescents of Paveh, a Western City of Iran’, Iran Red Crescent Medical Journal, 5 July 2014; and CISEC96CF1589 Veissi, M et al, ‘Job Stress, Job Satisfaction and Mental Health: The Balancing Effects of Personal Hardiness and Social Support Network Factors’, Iranian Journal of Psychiatry and Clinical Psychology, Volume 6, Number 2 and 3 (Fall & Winter 2000).
114. The applicant’s migration agent provided further information after the hearing. This sought to establish the applicant would not have access to the medical treatment he needs in Iran (including that in Iran, there would be no generic medication for the ailments suffered by the applicant - including [medications]); or that he would not be able to afford same. Further post hearing submissions included a medical letter dated 10 May 2017, indicating the applicant suffered major depression and PTSD. Further, that he could not cope with the “current shock related to his visa cancellation”.
115. That being said, the Tribunal accepts the health care system in Iran may not be as beneficial as that which exists in Australia. However, none of the evidence considered, has satisfied the Tribunal (ie) that those health services that are available to persons in Iran, would be withheld from the applicant for any reason. Further, the Tribunal notes the applicant said he had no mental health problems in Iran, and the Tribunal presumes his mental health may be assisted should he return to a more familiar environment.
116. Next, it was also claimed that without a proper job in Iran, the applicant would not have health insurance. However, and as stated at hearing, the Tribunal understood the applicant would have access to the same health services as other Iranian citizens. Regarding returnees to Iran, the country information stated:
2. To do immediately after the return:
…..
…register with relevant authorities: Returnees who do not have valid Iranian documents are required to register at respected offices such as Police+10.
(re-)register for the health insurance system and the pension insurance system.
There are two different kinds of health insurance coverage: either through employment or private, both under Iranian public insurance named TAMIN EJTEMAEI- Insurance through employment: Government employees benefit from free access to the public health insurance through their employment. Private companies cover the accidental insurance for their own employees.
- Private Insurance: Except for governmental employees, all other Iranian citizens have to insure themselves privately, if their employers do not insure them. To obtain the insurance coverage, it is necessary to provide: copy of the Iranian birth certificate, passport picture, complete medical check-up.
apply for social welfare at the Tamin Ejtemaei, Iran´s only public social welfare organization.
contact services assisting with the search for jobs and housing.
…..
II. HEALTH CARE
Health care system
a. General information on the health care system
The Government tries to provide free medical treatment and medication for all Iranian nationals. There are two different types of health insurance coverage: either through employment or private, both under Iranian public insurance TAMIN EJTEMAEI Children’s health insurances are normally covered by their parents’ health insurance.
Insurance through employment: Government employees benefit from free access to the public health insurance through their employment. Private companies cover the accidental insurance for their own employees.
Private insurance: Except for governmental employees, all other Iranian citizens have to insure themselves privately, if their employers do not insure them. To obtain the insurance coverage, it is necessary to provide: a copy of the Iranian birth certificate, a passport-size picture, a complete medical check-up.
Salamat insurance: This new private insurance is provided by the Ministry of Health and covers up to 90% of health expenses. Individuals can register for Salamat insurance through its website: [32][32] Country Fact Sheet: Islamic Republic of Iran", International Organization for Migration, 31 January 2017, CISEDB50AD194.
117. Based on the country information considered, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Iran, for reasons of his ongoing health concerns. Be that as it may, the Tribunal does accept the applicant would be substantially benefited by the health services made available to him in Australia.
The claimed meditation practise of [Ms D] and [Mr H] in Australia
118. The applicant lodged information at hearing about the meditation practise undertaken by [Ms D] and [Mr H]. A letter dated [April] 2017 from [an organisation in] Australia, said the applicant’s son ([Mr H]) and daughter ([Ms D]) were inter alia regular attendees at meditation classes. These classes further their spiritual growth. The country information stated:
Mohammad Ali Taheri, founder of a popular spiritual group called "Erfan-e Halgheh," or "mysticism circle," has been kept in solitary confinement in Tehran’s notorious Evin prison since May, 2011. Taheri, who taught popular spirituality and meditation classes, was originally given a 5-year sentence for “insulting Islamic sanctities,” an offense that does not carry the death penalty as it does not involve the deliberate insulting of the Prophet Mohammad.[33]
[33] CXBD6A0DE1918: "Hundreds support Iranian mystic facing death sentence", Fox News, 25 February 2015,
and:
Interuniversalism [also known in Persian as Erfan-e Halgheh, Erfan(e) Halgheh, Erfan-e Halqeh, Erfan-e Kayhani or Erfan Kaihan] is also known as "Interuniversal Mysticism" (Interuniversalism Inc. n.d.), "Mysticism of the Ring" (Doostdar Apr. 2012, 130) or "Cosmic Mysticism" (IOPHRI 12 Aug. 2013; Doostdar Apr. 2012, 130). Sources describe Interuniversalism as "a spiritual doctrine" (Interuniversalism UK n.d.), "a mystical outlook" (Interuniversalism Inc. n.d.), a "mysticism" (Doostdar Apr. 2012, 130), a "philosophy" (MEHR 27 Oct. 2013) and "a school of thought" or "belief structure" (Senior Researcher 28 Oct. 2013). It originated in Iran (Interuniversalism Inc. n.d.).
…..
According to the Senior Researcher, "[t]he [s]tate and state officials think of Interuniversalism [as a] cult and a ... scam" (ibid.). The Director of Interuniversalism UK stated that a bill that aims to ban "Interuniversalism Mysticism" in Iran and stipulates punishments for "anyone attending, promoting and managing 'fake spiritual doctrine'" has been drafted; however, he added that the bill "has not reached the parliament open session" yet (Interuniversalism UK 30 Oct. 2013; ibid. 5 Nov. 2013). The Director added that "fake spiritual doctrines" are "defined as non-Islamic doctrines, and the government agencies have explicitly characterised Interuniversalism as a 'fake spiritual doctrine'" (ibid. 30 Oct. 2013).[34]
[34] Immigration and Refugee Board of Canada, "IRN104640.E - Iran: Situation and treatment of practitionners of Interuniversalism (Erfan Halgheh) (2010-October 2013)", Immigration and Refugee Board of Canada, 01 November 2013, CIS27379.
119. At hearing, the Tribunal put to the applicant that it did not understand that all persons who practised (ie) meditation in Iran or Australia, had a real chance of suffering serious or significant harm in Iran. The applicant’s daughter and the migration agent disagreed. They said (words to the effect) that all meditation engages in spiritual issues, and same is considered a threat to Shia Islam. However, the country information has not satisfied the Tribunal this is correct.
120. That being said, based on all the evidence, I am not satisfied the applicant (who does not practise this meditation) would have a real chance of suffering serious or significant harm for this reason on return to Iran, for reason of the practise of same in Australia by two of his children.
Failed asylum seeker
121. At the hearing, the Tribunal asked the applicant if he feared harm in Iran, for reason of possibly being returned as a failed asylum seeker (and he had resided in Australia – a western country, for eight years). The Tribunal then put to him that his daughter (a witness at the hearing and who had also been granted a PV around the same time as himself), had returned to Iran on more than one occasion, after receiving her PV. The applicant said he did not wish to go to Iran (the Tribunal also understands the applicant had travelled to [another country] after being granted his PV). 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.[35][35] DFAT Country Information Report, Iran, 21 April 2016.
122. 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.
123. Next, in a DFAT report dated 19 April 2011 and in the aforementioned more recent DFAT Country Information Report, Iran, 21 April 2016, 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’.[36] However and as stated herein, the Tribunal is not satisfied the applicant has any relevant profile that would cause him to be of any adverse interest to the authorities or other persons on return to Iran.
[36] 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>
124. 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 serious or significant harm for having sought asylum in Australia, or for having resided in Australia for around eight years.
125. Next, based on the evidence before the Tribunal, I am not satisfied that Australia’s international obligations would or may be breached by the cancellation of the applicant’s visa.
Conclusion
126. 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 (including social security benefits). I am satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing his claims to be granted a PV.
127. However, the applicant has resided in Australia for around 8 years and this is a substantial period of time. The applicant has a number of serious health issues for which he is treated in Australia; and the Tribunal accepts this is correct. The Tribunal also accepts the applicant is advantaged by the health treatment he receives in Australia and that his forced return to Iran would likely cause him more serious health issues. Next, the applicant’s wife, three of the applicant’s children and numerous grandchildren have been allowed to continue to reside in Australia; and the cancellation of his PV may result in him being forced to return to Iran (with his wife), where no close family members reside. Further, there is no evidence before the Tribunal, that there have been any other breaches of the law since the non-compliance occurred.
128. That being said, after considering all the evidence cumulatively, and notwithstanding the applicant’s duplicity, the Tribunal does not accept it is reasonable that the relatively elderly and sickly applicant’s visa be cancelled, given the substantial impact it would have on him and immediate family members.
129. 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
130. 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
MemberATTACHMENT – 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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Standing
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