1700606 (Refugee)

[2018] AATA 2529

1700606 (Refugee) [2018] AATA 2529 (12 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700606

COUNTRY OF REFERENCE:                  Iran

MEMBER:Denis Dragovic

DATE:12 June 2018

PLACE OF DECISION:  Melbourne

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 12 June 2018 at 1:02pm

CATCHWORDS
Cancellation – Protection visa – Iran – Providing incorrect answers in visa application – Incorrect name and date of birth – Return to Iran – Acquiring a new passport – Arrest warrant – Religion – Conversion to Christianity – Attacks from Basij militia – Real state of satisfaction on grounds for cancellation – Airport departure checks – Decision under review set aside

LEGISLATION
Migration Act 1958, ss 5(1), 46, 97-101, 107-109, 375A, 424A
Migration Regulations 1994, Schedule 2

CASES
Zhao v MIMA [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had in a number of instances provided incorrect information including:

   a.The applicant claimed his name is [name] while the delegate found it to be [Alias 1].

   b.It was recorded at the entry and biodata interview a few days after arriving in Australia by boat that the applicant’s date of birth was [date] while his actual date of birth is [another date in the same year].

   c.The delegate wrote that the applicant claimed a warrant had been issued for his arrest. The delegate argued that by returning to Iran, and while there acquiring a new passport without hindrance in both instances, the applicant has shown that the claim was incorrect.

   d.The delegate identified the applicant’s claims that he will be harmed by the Basij for having converted to Christianity. The delegate found that by returning to Iran and re-engaging with the Iranian authorities to obtain a new passport he has shown this to not be the case.

   e.The delegate claimed that the applicant’s statement in which he said that he feared the death penalty because he has converted to Christianity was not correct because he had returned to Iran voluntarily.

3. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 19 April 2017 before a member whose term expired prior to finalising the decision. The applicant appeared before this member on 6 April 2018 to give evidence and present arguments. It was explained to the applicant that evidence presented at the first hearing remained as evidence received by the Tribunal for the purposes of determining his case. The Tribunal also received oral evidence from his son, [named]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. 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

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of Immigration of any incorrect information of which they become aware and of any relevant changes in circumstances.

8. 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.

9. 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.

10. At the hearing I discussed with the applicant the presence of a valid s.375A certificate on the file. I explained that the documents protected by the certificate are documents which show how the Department undertakes its investigation including personal details of the officers involved in the investigation and deliberative matter that shows how a decision was arrived at. I explained that if there was any material that was adverse to the applicant behind the certificate I would raise it through the hearing.

11. I did not provide the certificate to the applicant and his representative at the beginning of the hearing for the reason that the certificate was poorly written, in that it included such a degree of detail that it undermined the purpose of the certificate. The certificate was based in part upon revealing methods that the Department uses in gathering information and then the certificate itself goes on to explain what those methods are.

12. I offered to provide a (redacted) copy of the certificate to the applicant at the end of the hearing, as the hearing was to engage with some of the material gathered through the mechanisms that the certificate sought to protect.

13. As the decision is in the applicant’s favour and it would add no value for him to question the certificate’s validity, and considering that releasing it would undermine the integrity of the Department’s processes, I have chosen not to release the certificate. It would be preferable in the future that the Department not provide such extensive details in the certificate.

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

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

    Section 101 Visa 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

15. Section 101 refers to incorrect information being given on the application form. The term ‘application form’ is defined in s.97 for the purposes of a s.109 cancellation, which states it as meaning, ‘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 s.46 allow to be used for making the application’.

16. On the 9 March 2012 the applicant was informed by the Department that his application for protection had not been accepted. It was automatically forwarded to the Independent Protection Assessment Office who subsequently found that protection was owing and the applicant was notified on the 22 October 2012. The decision was made upon the basis of the applicant’s conversion to Christianity and the impact this would have upon the applicant were he forced to resettle in Iran.

17. Subsequently, the Department came to know that the applicant had departed Australia on [a date in] May 2014. He indicated on his departure card that his estimated length of stay abroad would be two months and that he was planning on staying in [Country 1]. The applicant returned [in] August 2014. He was interviewed by a Department officer at the airport who found an Iranian passport issued [during this period] in the name of [Alias 1 variant]. The stamps in the Iranian passport indicate that he had used it to exit Iran.

18. Based upon this information the Department sent a Notice of Intention to Consider Cancellation (NOICC) by email on 17 November 2016.

19. The NOICC identified the following incorrect information:

    Questions 1 and 4

    You claimed your name is [name] and another name you have been known by is [Alias 1].

    Based on the evidence above, I consider this is incorrect because:

    ·The translation of your Iranian birth certificate (issued [on date]) indicates your name at birth was [Alias 1 variant].

    ·The translation of your Iranian driver's licence (issued [in] 2002) indicates your name is [Alias 1 variant].

    ·In your Biodata interview on 16 November 2011 you claimed you were formerly known by the name [part of Alias] and changed this to [part of applicant name] in [Country 1] 4 to 5 years ago.

    ·Your Iranian passport was issued [in] 2014, after you claim to have changed your name in [Country 1]. It indicates your name is still [Alias 1 variant].

    Question 8

    You claimed your date of birth is [date].

    Based on the evidence above, I consider this is incorrect because:

    ·The translation of your Iranian birth certificate indicates your date of birth is [a different date in the same year].

    ·The translation of your Iranian driver's licence indicates your date of birth is [that different date].

    ·Your Iranian passport indicates your date of birth is [that different date].

    Questions 42 and 43

    From your statutory declarations dated 13 February 2012 and 18 May 2012 which you provided in support of your Protection visa application, in relation to this question you claimed you left Iran because a warrant has been issued by the Iranian authorities for your arrest as an apostate and you fear you will be killed for having converted to Christianity.

    Based on the evidence above, I consider this is incorrect because:

    ·On [a date in] August 2014 you returned to Australia after having departed [in] May 2014. You were interviewed by a Department officer at [the] Airport. The officer found you were in possession of an Iranian passport number [number], issued [in] 2014 by the Immigration and Passport Police in Iran and valid to [2019].

    ·The stamps in your Iranian passport indicate you departed Iran using that document.

    ·Country information indicates Iranian authorities check computer databases before issuing passports:

    oDFAT and UK Home Office advice indicates that security checks are carried out, checking issues such as completion of military service, outstanding warrants, unpaid student loans, and outstanding court cases.

    oAdvice from DFAT indicates that a blacklist is in operation and a passport application would be blocked for an applicant who is blacklisted.

    ·If the Iranian authorities had issued a warrant for your arrest as claimed, the country information above indicates you would have been blacklisted and not issued a new Iranian passport. Since you were issued a new Iranian passport [in] 2014, 1 year and [number] months after you lodged your Protection visa application, this indicates the claim in your Protection visa application that the Iranian authorities had issued a warrant for your arrest, is not true.

    ·It is implausible if there was a warrant for your arrest and you feared being arrested and killed by the Iranian authorities as claimed, you would voluntarily return to Iran, engage with the Iranian authorities to obtain a new passport and exit through an official Iranian checkpoint.

    Question 45

    From your statutory declarations dated 13 February 2012 and 18 May 2012 which you provided in support of your Protection visa application, in relation to this question you claimed you feared if you return to Iran:

    ·You will be harmed by the authorities and the Basij for converting to Christianity after leaving Iran and your opposition to the implementation of Islamic laws and policies in Iran promoting the injustices imposed by Islam.

    ·You will also be killed because the authorities have issued you a court summons, the penalty of which is hanging under Sharia law as you will be considered an infidel.

    Based on the evidence above, I consider this is incorrect because you have subsequently voluntarily returned to Iran, engaged with the Iranian authorities there to obtain a new Iranian passport, departed through an official government checkpoint, and were not arrested nor harmed

    Question 46

    From your statutory declarations dated 13 February 2012 and 18 May 2012 which you provided in support of your Protection visa application, in relation to this question you claimed it was the Iranian authorities and the Basij you feared would harm you if you returned to Iran.

    Based on the evidence above, I consider this is incorrect because you have subsequently voluntarily returned to Iran, engaged with the Iranian authorities there to obtain a new Iranian passport, departed through an official government checkpoint, and were not arrested nor harmed.

    Question 47

    From your statutory declarations dated 13 February 2012 and 18 May 2012 which you provided in support of your Protection visa application, in relation to this question you claimed this would happen because you have converted to Christianity and would be seen by the Iranian authorities as an apostate and opposed to the implementation of Islamic laws and policies in Iran promoting the injustices imposed by Islam.

    Based on the evidence above, I consider this is incorrect because you have subsequently voluntarily returned to Iran, engaged with the Iranian authorities there to obtain a new Iranian passport, departed through an official government checkpoint, and were not arrested nor harmed.

    Question 48

    From your statutory declarations dated 13 February 2012 and 18 May 2012 which you provided in support of your Protection visa application, in relation to this question you claimed you do not believe the authorities will protect you because you have converted to Christianity and violated Sharia law and will be killed, and you will not be able to relocate anywhere in Iran because a court summons has been issued against you.

    Based on the evidence above, I consider this is incorrect because you have subsequently voluntarily returned to Iran, engaged with the Iranian authorities there to obtain a new Iranian passport, departed through an official government checkpoint, and were not arrested nor harmed.

20. The applicant’s representative made a submission on the 12 December 2016 in which he rebutted the assertions made in the NOICC. I will engage with these rebuttals under the below section when considering each of the claimed pieces of incorrect information.

    Consideration of claimed incorrect information: The applicant’s name

21. The Department identified the applicant’s Iranian documents as having a different name to the one he presented to the Australian government upon arrival to Australia. In these Iranian documents he is named as [Alias 1 variant] while he claimed to be [name].

22. The delegate wrote in the NOICC that the fact that his passport still has his name as [Alias 1] suggests that he is still known under that name. In response to the NOICC the applicant submitted that although he had changed his name in [Country 1], it was not an official change of name and hence his Iranian documents continued to carry that name.

23. I now turn my mind to considering these claims and counter-claims. The applicant claims to have changed his name unofficially in [Country 1] and used that name when he came to Australia. Subsequently, he returned to Iran and acquired a passport but did not go through the process of requesting an official change of name in the Iranian government system. This would seem reasonable for two reasons. Firstly, the applicant was only staying in Iran for a limited period of time and had no plans to re-settle in Iran, making the burden of going through a bureaucratic process unnecessary. The second being that he feared any engagement with the authorities because of his past and, as such, attempting to change his name would appear to be an unnecessary risk. It is possible that both are true to varying degrees.

24. I also note that the applicant wrote in his Form 80, submitted along with his protection application forms in 2012, that he is also known as [Alias 1]. The difference between [Alias 1] and [Alias 1 variant] is not material.

25. Based upon the applicant’s acknowledgement of his alternative name from the outset of his engagement with the Department and the obvious reasons as to why he would not seek to officially change his name while in Iran, I find that the applicant has not provided incorrect information with regards to his name.

    Consideration of claimed incorrect information: The applicant’s date of birth

26. The delegate identified a discrepancy in the applicant’s claimed date of birth. Shortly after arriving in Australia the applicant was interviewed. He claims that he was in a poor state of mental health and, as such, could not remember the exact date of his birthday and only gave the year of [year]. It is claimed by the applicant that the officer then input [another date in that year] as the date. Subsequently, documents were provided by the applicant which showed the date of birth to be [different date].

27. In considering whether the applicant provided incorrect information, whether intentionally or not, I have taken into consideration his version of events which, although difficult to believe considering that he gave other detailed particulars, is possible under stressful circumstances. Considering that a real state of satisfaction is required to be reached and without sufficient information to the contrary I accept the applicant’s explanation in part for the reason that falsifying his date of birth appears would have no bearing on his claims, and therefore no apparent motivation to provide false information. As such that he did not provide the information nor intentionally withhold it leads me to find that he did not provide incorrect information, but rather the officer input the date as claimed for the reason of needing a fully completed form.

    Consideration of claimed incorrect information: The outstanding warrant for the applicant

28. The applicant claimed in his application form that he has an outstanding court summons. In considering this claim the delegate identified it as incorrect information under questions 42 and 43 for the reason that:

    If the Iranian authorities had issued a warrant for your arrest as claimed, the country information above indicates you would have been blacklisted and not issued a new Iranian passport. Since you were issued a new Iranian passport [in] 2014, 1 year and [number] months after you lodged your Protection visa application, this indicates the claim in your Protection visa application that the Iranian authorities had issued a warrant for your arrest, is not true.

29. In response to the NOICC the applicant referenced article 133 of the Islamic Republic of Iran’s Criminal Code of Procedure for Public Revolutionary Courts, in which it describes the processes the courts take in blacklisting a person from traveling outside of Iran.

    Article 133 – Based on the importance and the evidence of the crime, the court can also arrange to prevent the accused from leaving the country. The validity of this arrangement is six months and if deemed necessary by the court, it can be extended every six months. This arrangement can be appealed for a review within 20 days from the date of issuance at the Province Court of Appeal.

    Problematically, the applicant’s response did not address the core issue raised which is the accessing of a passport, nor its use when departing the country. The delegate noted this and then reached a reasonable conclusion on the information available.

1. Country information that was not raised by the applicant nor the Department would suggest that both perspectives are correct. The UK Home Office report from 2012 notes:

   Checks are carried out, at the time of passport issue, in relation to any other outstanding security issues, such as outstanding warrants, which could prevent either a male or a female from being issued the passport. This takes place at the time of the general passport application rather than when issuing any particular exit stamp. This is done using a specialised database, which is also the same system used at the airport when conducting the final verification of eligibility to travel at the security checkpoint.[1]

   [1] United Kingdom: Home Office, Operational Guidance Note - Iran, October 2012, Draft Iran OGN v8.0, [accessed 16 May 2018] at 3.15.3

2. Importantly, this suggests that the same computer system used at the airport is used at the issuing of passports. In this case it is possible, and even probable, by reading the above information, that if the applicant’s court summons was not renewed and did not appear in the system which the airport uses in conducting the final verification as per article 133 of the Islamic Republic of Iran’s Criminal Code of Procedure for Public Revolutionary Courts then it would not appear in the same system used to issue passports. As such, that he was able to access a passport in 2014 is not contrary to his claims that at the time of fleeing Iran in 2011 there was an active court summons.

3. Alternatively, it is possible that the courts only update data for airport users and not for officials who issue passports, but I find this to be less likely for the reason that it is the same organisation that manages both. There is too little information to know with certainty but, on the face of it, the information favours the applicant’s claims.

4. This argument was not put to the Tribunal, instead, the applicant said that his [family member], a [business owner], organised for someone to process his passport without the applicant’s involvement. The applicant put to the Tribunal at the hearing that the speed of getting the passport is indicative of someone being paid off to process it. I put to the applicant country information which suggested otherwise: ‘It all started because the Iranian passport system was being computerised at the time of her application. A process that should have taken three days took weeks.’[2] This was in reference to a period in 2004-2005 when the system was being updated. Otherwise it would appear that it can take a few days. He said that he wasn’t involved in the process of getting it and as such couldn’t comment further. On the basis of the country information I don’t put any weight on the speed of acquiring a passport being indicative of it being acquired improperly through the bribing of officials.

   [2] Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), Iran: 1) Information on the current procedure for issuance of Iranian passports; 2) Information on last changes of the procedure for issuance of Iranian passports; information on possible updates of the procedure in the period between or previous to 2004-2005; 3) a) Provided that there was an update: Information on time requirements for replacing an old with a new passport; b) provided that there was no update: Information on time requirements for issuance of a biometric passport, 6 September 2010, a-7369, available at < 5 April 2018]

5. Instead, I turn to other evidence provided by the applicant to determine whether the claim of acquiring the passport through his [family member] is credible. I noted to the applicant at the hearing that Iran has used biometric passports since 2007:

   Iran has been using biometric diplomatic and service passports since 2007. These have a tiny computer chip embedded in the cover which contains the owner's features like face or fingerprints for the clear identification of the passport holder.[3] Ordinary biometric passports began to be issued in February 2011.[4]

   In addition:

   …an applicant must be present when a passport is lodged, because fingerprints are obtained and an ID check is performed at this time.[5]

   [3] ‘Iran unveils 1st biometric passports’ 2007, Press TV (Iran), 12 July < Accessed 3 November 2014 < CXE90FC0120176 >

   [4] UN Security Council 2012, Final report of the Panel of Experts established pursuant to

   [5] Department of Foreign Affairs & Trade 2009, CIS Request No. IRN 9725 Passport and exit procedures, 9 June <CX227682>

6. I asked whether he had ever provided finger prints, to which he responded that he had not. He explained that he wasn’t present because his [family member] found someone who obtained the passport in exchange for money. I asked the applicant to provide to the Tribunal his Iranian passport so that it could be checked to see if fingerprints were recorded as a part of the biometrics. Subsequent to the hearing his passport was not provided. A tribunal officer contacted the applicant to ask whether he had found his passport. He advised that he has moved house twice since he last saw his passport, which was four years ago, and as such believes that it is lost. I find this answer unconvincing. A passport is a valuable document that, regardless of how many times one moves house, would be very unlikely to be overlooked or misplaced. 

7. The applicant did not provide at any stage a copy of the court summons making it difficult to verify its legitimacy.

8. The key question becomes how did the applicant access a passport? Two possibilities exist. According to the applicant his [family member] paid people off to get a passport, which may or may not have been necessary as country information suggests that his court summons may not have been renewed anyway. The other possibility is that the applicant did not hold the adverse profile he claims and as such accessed his passport with ease as would any other Iranian.

9. As noted earlier country information suggests that the courts are required to renew restrictions on government security systems every six months.[6] Country information infers that these security systems are accessed by both officials who issue passports and by those at the airport. That the applicant was able to leave the airport suggests that he would not have had an issue accessing a passport leaving little basis upon which to suggest that the applicant provided incorrect information. This is a strong argument. Alternatively, the applicant claims that his [family member] paid someone to access the passport and that this would have circumvented any alerts, but the passport, which could have supported his claims, has been lost in a manner that I find to be unconvincing.

   [6] See above reference to Article 133 of the Criminal Code of Procedure

10. The other possibility is that the summons never existed. He had lied about this element of his claims and returned to Iran accessing a passport as any other Iranian would. In support of this view is his decision to return as it could suggest that he didn’t have the fear that he claimed had led him to flee Iran in the first place. But courage and fear are strange things. They can often appear in ways that are hardly rational. We find courage at unexpected times when even a moment’s reflection would urge an opposite course of action and we feel fear when no rational reason can be found. It is the role of the Tribunal when exercising its merits review authority to not treat applicants as automatons that rationally consider every decision. In this case the applicant claims that while in [Country 1] where he had travelled to meet his [Relative A] he was informed that she was unable to depart from Iran because she [suffered a medical condition]. Being advised by his [family member] that it was serious he chose to take the risk of travelling to Iran. He claimed that after his departure from Iran his [Relative A] had a [further episode] leaving her disabled. He provided the Tribunal with photos of his [Relative A] in hospital and medical reports. One medical report was dated [June] 2014 another [days earlier] both aligning with the applicant’s claims of being informed of his [Relative A’s] illness while in [Country 1]. Another was from 2016 showing his [Relative A’s] situation more recently. Is this a reasonable motivation for the applicant’s return? If it is true I find that it would be. There are reasons to doubt the applicant’s claims.

11. At the first hearing the applicant explained:

    The truth is that [Relative A] was really stressed and worried, and was thinking of me a lot, and in this stress and anxiety I asked them to - I asked her to come with my [family member] to [Country 1] to see her.  It’s worth mentioning that [her] age is [elderly] (indistinct), and that’s why I thought that, according to the condition, I thought it better for my [family member] to bring [her] to [Country 1] with him, to visit.  I have never, ever thought about returning to Iran.  That is the reason why I told my son that I will go for seven to 10 days and will return shortly. 

    I put to him that his travel itinerary showed that he had booked for a period of just over two months. He first gave an answer related to the [Country 1] visa being for a fixed period and his ticketed reflecting that period. When pressed he was evasive in his answer having the Tribunal to on numerous times direct him to the issue that his claimed intention was not aligned with his ticket. He then claimed that he was told by the travel agent that he could change the travel dates as and when he wanted and that if he booked longer and stayed shorter he wouldn’t have to pay a change fee but vice versa he would.

12. I subsequently emailed the travel agency and received the following reply:

    Unfortunately this ticket was purchased in 2014 and we can only retrieve data for tickets that are issued within 12months. If we ask our helpdesk for past date bookings to be retrieved there is a charge of $150. Once we retrieve the past date booking then we can tell what was the condition of specific ticket the customer had purchased as each fare has its own conditions.

    Generally if someone books a ticket and is unsure of the return date they put a longer period and then change it to earlier if needed. The change fee will still apply for ticket change in both cases either changing to earlier date or changing to a later date and the cost will be assessed at the time of making the change.

    Most of the tickets are restricted to have a tentative date booked for the return flights. Changing the date to earlier or later dates the ticket will be re-assessed and charges quoted at the time of making the changes. We can’t predict if it’s going to cost less or more.

    The last assumption I have is he must be talking about no-show penalties. If he books a ticket for shorter period and he doesn’t travel and doesn’t notify the airline he will have to pay no-show penalty. This has happened to a few of our clients they assume they are not ready to travel and the flight departs when they are ready to travel they get in touch with us to rebook then they have to pay the no-show penalty and rebooking fees. Our consultant must have recommended to book a longer return date to avoid no-show fees in case he can’t travel on the earlier date.

13. It appears that the applicant has not been truthful as the evidence available indicates that either extending or shortening a trip will lead to a change fee. The information was put to the applicant under s.424A. He responded on the 8 June:

    As I stated during my hearing, I told my son that I would travel to [Country 1] for around two weeks. I purchased foods for my son for two weeks only. However, when I went to the travel agent to purchase my ticket, because [Relative A] and [family member] had not yet had their tickets confirmed, I was not sure about the exact date of my return. For this reason, as per the advice of the agent, I booked my return flight for over two months. I was told by the agent that it is usually easier and cheaper to change it to a shorter period. I am not familiar with the ticketing system and rules. That is what I remember I was told. I believe that the Member should give more weight to the fact that my son was [under age] at the time and was mainly dependant on me. He is still dependant on me and living with me. It was very obvious that my intention for travel was could only be for a short period of time because I could not leave alone my son for two months. I think it is usually common, or at least that was my understanding at the time, to book your ticket for a longer period and then change it to a shorter period when you are not sure about the exact date of you return if when your intention is to travel for a short period of one to two weeks.

14. In considering the entirety of the issue of the court summons and his adverse profile I first note Zhao v MIMA in which the Court considered a s.116 cancellation writing that the ‘state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not.’[7] The decision went on to say: ‘A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.  The decision-maker must ultimately be satisfied that the ground for cancellation is established.’[8]

    [7] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25].

    [8] Ibid at [32]

15. In this case we have a situation in which the applicant is lacking in credibility, but the country information provides enough possibilities to support his circumstances even ignoring his explanations. For example, regardless of whether the applicant’s [family member] paid for a new passport to be processed it appears possible that a court summons existed but was subsequently not renewed and as such he was able to access a passport. That the applicant may have intended to travel to Iran from the outset or not is unclear but that alone is insufficient to conclude that he did not fear return for the reasons mentioned above. Under these circumstances I conclude that the information available is not sufficient to reach a real state of satisfaction, such that I can find the applicant provided incorrect information regarding a court summons.

    Consideration of claimed incorrect information: The applicant’s conversion to Christianity and his return to Iran

16. The delegate of the Minister notified the applicant through the NOICC that his claimed fear of being ‘harmed by the authorities and the Basij for converting to Christianity’ was incorrect because ‘you have subsequently voluntarily returned to Iran, engaged with the Iranian authorities there to obtain a new Iranian passport, departed through an official government checkpoint, and were not arrested nor harmed’.

17. The delegate is incorrect in their reasoning in this instance. It is inherent to the protection application process that the fear of returning based upon a religious conversion is premised upon a permanent return to the country. Converting to Christianity and resettling in Iran would run the risk of harm based upon the applicant pursuing what is a right under the Refugee Convention, namely, freedom to practice one’s religion free from persecution.

18. In considering the applicant’s return to Iran for a period of one month (based upon passport stamps in his Australian titre de voyage he departed [Country 1] [in] June and his Iranian passport was stamped as having re-entered [Country 1] [in] July) the risk is very different than were he to relocate permanently. The applicant stated that he wasn’t going out much, he stayed at [a relative]’s home and would only visit his [Relative A] at the hospital when his [family member] arranged it.

19. He also submitted that it was not practical to evangelise during his visit. However he said that he did speak to his siblings, nieces and nephews about ‘the gist of Christianity’ indirectly. It would be reasonable to expect the applicant to have chosen to change his behaviour such as to act discretely, to forgo attending church and not to evangelise during a short visit. I do not find it appropriate to use the applicant’s return to Iran as a test of his claimed fear of persecution based upon religious conversion. As such, I find that incorrect information was not provided in claiming that his conversion would put him at risk.

    The applicant’s fears of the Basij

20. The NOICC noted the applicant’s protection claims, as expressed in his application, that he feared the Iranian authorities and the Basij if he returned to Iran. The delegate found that by returning to Iran and re-engaging with the Iranian authorities to obtain a new passport he has shown this to not be the case.

21. Upon a simple reading of this statement it would appear that the delegate’s appraisal is correct, but when read in context, it is more nuanced. The applicant’s claims against the Basij and the authorities as referenced in the NOICC are found in the statutory declarations dated 13 February 2012 and 18 May 2012. In reviewing the latter there is no reference to fearing Basij upon return but rather only in the former. In this document the applicant wrote, ‘I believe if I return to Iran I would be at a real risk of facing serious harm by the authorities and the Basij’. Preceding this statement in response to the question, ‘What I fear may happen to me in Iran’, he wrote, ‘I believe if I return to Iran I would face a real chance of persecution for reasons of my decision to cease practicing Islam and converting to Christianity’.

22. Therefore, a correct reading of the claim by the applicant is that he fears the Basij and the authorities for the reason of his conversion to Christianity. When we take this into consideration the issue once again arises of how a brief visit does not necessarily undermine the risk one faces for having converted to a different religion under circumstances of a permanent return. The applicant explained and I accepted that he acted discretely during his short visit. His fear of the Basij as expressed in his protection application related to the circumstances he would face was he to live more permanently in Iran. As such I find that the applicant did not provide incorrect information in stating that he feared the Basij and the authorities.

23. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

24. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

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

    Denis Dragovic
    Senior Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)    requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)    visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)    having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

    
    

resolution 1929 (2010), S/2012/395, 12 June, p.50 < Accessed 3 November 2014 <CIS961F9401947>