1700999 (Refugee)

[2018] AATA 1496

1700999 (Refugee) [2018] AATA 1496 (18 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700999

COUNTRY OF REFERENCE:                  Iran

MEMBER:Denis Dragovic

DATE:18 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 18 April 2018 at 11:59am

CATCHWORDS
Cancellation – Refugee – Protection visa – Iran – Providing incorrect answers in application – Political opinion – Green Movement – Anti-government demonstrations – Race – Faili Kurd – Applicant returned to Iran – Return from a Western country – Applicant’s relative with serious illness – Failed asylum seeker

LEGISLATION
Migration Act 1958, ss 5(1), 36, 46, 46A, 48, 48A, 97-105, 107, 109, 116, 128, 134B, 140, 499
Migration Regulations 1994, r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
MILGEA v Che Guang Xiang [1994] FCA 1259

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 provided incorrect information related to his claims of harm were he to return to Iran because of his involvement in protests, a personal vendetta and being a Kurd. The claims were found to be incorrect by the delegate based upon the applicant liaising with the Iranian Embassy to apply for a new passport, travelling to Iran and remaining in the country for [number] months before exiting Iran. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 31 July 2017 and 26 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

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

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. 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.

   Memory and mental health of the applicant

9. The applicant arrived to Australia on [a specified] boat. [Details of arrival deleted.][1] The applicant claims to have suffered head injuries during this [journey] and subsequently mental health issues. He provided the Tribunal with a general practitioner’s certificate stating that he has suffered from ‘depression with anxiety since several years’. The applicant stated through the representative in a pre-hearing submission that any perceived inconsistency identified by the Department can be attributed to the applicant being severely traumatised following [events on the journey] and that he was unable to provide full answers at his first interview which was held 11 days later.

   [1] [Deleted.]

10. No evidence was provided to suggest that the applicant’s stated head injury as opposed to mental health issues was an ongoing matter.

11. The applicant was not on any medication at the time of the hearing.

12. Upon conclusion of the hearing the representative requested time to provide a psychological report. A report, dated [in] October 2018, was provided on 26 February 2018. The report included observations particular to the session as well as the following opinions and conclusions:

    a.‘[H]e provided sufficient information to draw the conclusion he was genuinely traumatised as a result of the [events in the journey to Australia]…he was also traumatised by being sexually abused.’

    b.‘[The applicant] has developed an avoidant response in relation to being raped in military detention, to being [on] an asylum seeker boat [travelling to] Christmas Island and to now facing the prospect of having his visa cancelled with the consequence being that he would be deported to Tehran.’

    c.‘[S]ymptoms are consistent with him suffering from a trauma related diagnosis such as a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood…and features of traumatisation, and/or with Posttraumatic Stress Disorder.’

    d.‘Based upon my assessment of [the applicant], he requires mental health treatment and ideally should be receiving mental health treatment from a practitioner – psychologist or psychiatrist – who is able to speak his native language.’

13. I find that the applicant had the ability to participate meaningfully in both hearings.

14. Throughout the hearings I incorporated the opinions and conclusions of the psychological report in the process of turning my mind to this case including adopting procedural measures to reduce the emotional and cognitive demands on the applicant.

    Relevant information pursuant to s.107 notice

15. The s.107 notice advised that a delegate of the Minister considered that the applicant may not have complied with s.101(b) of the Act. Section 101 states:

    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

16. Section 101 refers to the 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’.

17. The applicant made the following claims in a statutory declaration attached to his protection visa application form which was referred to as providing answers to questions 42–48 on the application form 866C.

    ·He participated in the Green Movement protests. He was photographed holding a sign ‘[with specified slogan]’. The brother of one of his former girlfriends whose father was a leader of the Sepah recognised him and he fears retribution. He also destroyed photos of the then leader.

    ·He was targeted by the Basij and Sepah who took him to a deserted place, told him that he shouldn’t have acted against the authorities and then raped and tortured him. In total he was detained by them for 12 hours.

    ·He received warning letters from the Basij and phone calls.

    ·He is discriminated against due to being a Kurd.

    ·He fears persecution due to his support of the Green Movement, having lived in a western country, and that he was one of the asylum seekers [whose boat arrival at] Christmas Island [resulted] in extensive media coverage and his name being known.

18. The delegate found that the applicant met the definition of a refugee on 14 April 2011 and he was granted a protection visa on 13 July 2011.

19. Subsequently, circumstances arose such that his claims of fearing harm were he to return to Iran were questioned by the Department including that he liaised with the Iranian Embassy to obtain a passport and then travelled back to Iran [in] 2014 where he spent [number] months before returning to Australia [in] September 2015.

20. Based upon this information the Department sent a Notice of Intention to Consider Cancellation by registered mail and email on 22 November 2016.

21. The Notice of Intention to Consider Cancellation provided a summary of the answers given by the applicant to questions 42–45 of form 866C by way of an attached statement of claims.

    Q42. Why did you leave that country?

    You provided an attached statement of claims in which you claimed (in part) that you are an Iranian Kurd living in Tehran with your [specified family members] and that your father is deceased. You stated that you had attended demonstrations in support of the ‘Green Party’ in Iran and that because of this you were targeted by both members of the ‘Shepah Party’ and the Basiji. You claimed in your statement that because you supported the ‘Green Movement’ and spoke out against the government you were arrested, detained, raped and tortured by these groups six months prior to your departure. You claimed in your statement that you received threatening phone calls and warning letters which were left at your house by the Basij because of your involvement with the Green Movement and because it was unsafe you fled to a relative’s house until you made arrangements to flee Iran. You further stated that you had previously been in a relationship with the daughter of a Shepah leader and that the uncle of this woman recognized you from the demonstrations and targeted you for your involvement. You lastly added that you are discriminated against because of your ethnicity.

    Q43. What do you fear may happen to you if you go back to that country?

    You provided an attached statement of claims in which you claimed:

    I believe that I will be persecuted due to my support of the Green Movement. The Basij target anyone who they believe is against the Leaders of the Revolution. Furthermore, I believe that I will be persecuted because I have been living in a western country. They will suspect that I am a spy from a western country. Due to the fact that my boat [arrival had] been in the media and therefore it will be known that I have been to Australia. My identity has been revealed and therefore I will be suspected of being a spy.

    Q44. Who do you think may harm/mistreat you if you go back?

    You stated – Please refer to attached statement of claims. In your statement you answered:

    I believe I would be harmed by the Basij, the Sepah Party and the Iranian Security Agency.

    Q45. Why do you think this will happen to you if you go back?

    You provided an attached statement of claims in which you claimed:

    I believe they will harm me due to my involvement in the Green Movement and because I have been living in a western country.

22. The Notice of Intention to Consider Cancellation then identified the following incorrect information (bold added by the tribunal):

    a.‘I consider that you provided an incorrect answer to question forty two of the form 866C when you stated that you left Iran because you did not feel safe there and were scared for your life as you held an adverse profile due to your support of the 'Green Party' and that because of this you were targeted by members of the 'Shepah Party’ and the Basiji. This is incorrect because entry and exit date stamps in your current Iranian passport issued by the Embassy of Iran in Canberra indicate that you voluntarily returned to Iran and remained in the community there between [dates in] 2014 and [September] 2015, a period of around [number] months. Given that you voluntarily engaged with the Iranian authorities in Canberra when you applied for a new Iranian passport and upon your entry to and exit from Iran at Tehran Imam Khomeini International airport, the extended length of your stay in Iran and that you returned to Australia indicate that your claims of holding an adverse political profile are incorrect.’

    b.‘I consider that you provided incorrect answers to questions forty three, forty four and forty five of the form 886C when you stated that if you go back to Iran you would be persecuted by the Basij, the Sepah Party and the Iranian Security Agency due to your claimed support of the Green Movement and because you have resided in a western country and your identity may have been revealed by the media [upon] arrival in Australia. This is incorrect because you voluntarily returned to Iran between [dates in] 2014 and [September] 2015 and remained in the community there for [number] months without any hindrance by the authorities. The fact that you engaged with the Iranian authorities when you applied for an Iranian passport in Australia alerting them to the fact that you intended to travel there, and you engaged with them when you entered and exited Tehran Imam Khomeini International airport and returned to Australia unharmed indicates that your claims of being persecuted if you returned to Iran are incorrect.’

    c.‘I consider that you provided an incorrect answer to question forty seven of the form 886C when you stated that you departed Iran [in] November 2010. This is incorrect because your current Iranian passport [number] issued to you by the Iranian Embassy in Canberra [in] 2014 has an endorsement which states that your last departure from Iran was from Tehran Imam Khomeini International airport on [a date in] December 2010.’

23. I am satisfied that the delegate reached the necessary state of mind to issue the NOICC because the delegate expressly states that she has formed the view that incorrect information was provided. The delegate based the NOICC on concerns about the return of the applicant to Iran and his remaining in the country for [number] months. I accept that this raises a question about whether the applicant’s claim for protection was warranted. I therefore accept that the delegate reached the required state of mind.

24. The representative submitted a response dated 30 November 2016 to the Notice of Intention to Consider Cancellation in which the applicant maintained that the information he provided was correct, that his life would be in danger were he captured by the Basij, Sepah or the Iranian Security Agency, and that his return to Iran was a necessity. Furthermore, he claimed that he took measures to reduce his profile while in Iran including spending only one week in his former home in Tehran and the majority of the remainder of the time on his uncle’s [property].

25. The Department did not undertake an International Treaties Obligations Assessment prior to cancelling the visa, noting that it will be undertaken before a decision is made to remove the visa holder. While regrettable that such a decision was made considering the policy reads, ‘Articles 32 and 33 of the Refugees Convention must be considered before making a decision whether to cancel a visa, as cancellation in Australia may lead to removal from Australia and the possibility of refoulement’,[2] it has not affected this decision as I have undertaken a de novo review.

    [2] PAM3 ‘General visa cancellation powers’ (ss.109, 116, 128, 134B and 140)

26. Following this process the Department concluded that the applicant was in breach of s.101(b) and as a result the visa was cancelled under s.109 on 21 December 2016.

27. The Tribunal received a pre-hearing submission summarised below:

    a.The applicant relied on his submission dated 30 November 2016.

    b.[Events on the boat journey] to Australia [have] traumatised him.

    c.At the time of his return to Iran he was suffering from severe depression arising in part from a workplace injury. At the same time his mother was placing distressing calls to him. The combination of his trauma, depression and his mother’s calls led him to make the decision to return to Iran.

    d.The applicant answered the visa application questions in 2010 while he was severely traumatised and to the best of his memory.

    e.Attached to the submission were:

    i.Father’s death certificate

    ii.A medical certificate for his mother showing her to have [a medical condition] referencing [a date in] April 2011 as the date the applicant’s mother attended the clinic

    iii.A medical certificate for his mother showing her to have ‘[other conditions] from 2013’ with the date [in] August 2013

    iv.A medical certificate for his mother showing her to have [a medical condition] and depression referencing [a date in] April 2011 as the date the applicant’s mother attended the clinic

    v.Three MRI reports dated [in] October 2016 for the applicant’s mother showing her to have [specified conditions].

    vi.A medical certificate from a general practitioner for the applicant dated [in] February 2017 stating that the applicant suffers from ‘[another condition] due to [a specified] injury as well as depression with anxiety since several years’

    vii.A letter of support from [an official from a] Church, dated [in] January 2017 stating that the applicant has volunteered to fix cracks and paint the church’s front porch

    viii.A letter of support from [a named person], [manager] [at Business 1], stating that the applicant has been a part of the volunteer team since December 2016.

28. At the Tribunal hearing the applicant presented evidence on his initial departure from Iran:

    a.He was a part of the Green Movement in 2009. Together with a friend of a girl whose father was [an officer] in the Revolutionary Guard they were going to a protest sometime after the election which was held in June 2009. He knew that her father was [an officer] and it transpired that her uncle saw them at the protests. He suspected that her uncle had seen them because his friend saw her uncle. He claimed that this wasn’t the only protest he had attended as he had participated in a lot of others.

    b.He said that he was arrested in May or June 2010. He claimed that he was getting threatening letters over the preceding period. He was arrested by a group of three men from the Basij and put into a van with a bag placed over his head. After some hours they started beating him and then they raped him. Then after some time, maybe a day or two, they left him in the desert. Following this event he remained at home for a while and then went to his uncle’s village where he lived before coming to Australia, leaving Iran using his own passport in his own name. The reason he didn’t leave immediately after the threats and detention was that he was saving money to pay the fare.

    c.The claimed threatening letters were from the Basij and Sepah. He said that they were official letters. They would accuse him of being against the regime and that the supreme leader had stated that people against the regime were hooligans and whatever happens to them is the fault of the individuals. These letters were not court summons. The letters would say that they had identified him, that he’d be punished and that he had to stop. No letters were provided to the Tribunal as evidence.

29. In preparing for his return to Iran in 2014 the applicant went to the Iranian embassy in Canberra where he applied for a passport. Upon arrival to Iran he said that he was asked some questions at the immigration counter such as where he had been and what he was doing, to which he answered honestly, and then he went home to the same place where he had lived since he was 15 years old through to prior to his departure. He remained there for a week but being scared that he’d be caught, he moved to his uncle’s [property]. He also spent time in other places including his cousin’s house, his uncle’s friend’s house and his family property outside of Tehran. He claimed that he avoided checkpoints when he travelled, he used his cousin’s telephone and lived off of savings.

1. The applicant claimed he was able to pass through immigration control because only murderers and other perpetrators of serious crime are on a watch list while his fears were from the local Basij.

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

2. 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.

3. In the Notice of Intention to Consider Cancellation three claims were made of incorrect information as noted above with the following being the specific conclusions:

   1.‘Your claims of being persecuted if you returned to Iran are incorrect.’

   2.‘Your claims of holding an adverse political profile are incorrect.’

   3.‘I consider that you provided an incorrect answer to question forty seven of the form 886C when you stated that you departed Iran [in] November 2010.’

4. I will dispose of the third conclusion of incorrect information upon the basis that I find the difference between the claimed departure date from Iran [in] November 2010 and the correct date, being [in] December, is immaterial.

5. The first claim of being persecuted is not information but rather a subjective opinion. It is open to the applicant to present a subjective opinion on what would happen to him were he to return to a country. As such I do not accept that incorrect information was provided in this case.

6. The second statement identifying the incorrect information as holding an adverse profile is information as it is an objective fact which a decision maker can determine to be correct or incorrect. It can be tested by assessing the underlying claims which collectively would contribute to an individual being perceived by a state as being hostile such that they could be described as having an adverse profile. It is to this question that I now turn my mind.

7. The s.107 notice included a summary of the answer provided by the applicant to question 42 of the application form which asked, ‘Why did you leave that country?’ The summary included, among other information, the following: ‘You further stated that you had previously been in a relationship with the daughter of a Shepah leader and that the uncle of this woman recognized you from the demonstrations and targeted you for your involvement.’ In reaching the conclusion that ‘your claims of holding an adverse political profile are incorrect’, the delegate of the Minister provided the reasoning listed above. I accept that the references to the daughter of a Sepah leader in the summary of the response to question 42 form part of the reasoning. The delegate reached the view that the applicant held an ‘adverse political profile’ even if not explicitly mentioned in the reasoning because being seen protesting with the daughter of the Sepah leader during the Green Revolution is a subset of what can be described as his ‘support of the Green Party’. This support in turn formed a part of the reasoning for the delegate to conclude that the applicant claimed to have an ‘adverse political profile’ although it was not stated in such words by the applicant. For these reasons I find that the s.107 notice was a valid notice.

8. The applicant returned to Iran. In doing so he accessed an Iranian passport through the Iranian embassy under his real name, he passed through Iranian immigration control and then remained in Iran for [number] months before passing once again through immigration control to return to Australia. The applicant contends that he held a low profile, used his friend’s phone, lived on his uncle’s [property] and avoided checkpoints. Regardless of his claims to have maintained a low profile, the applicant accessed a passport which would alert authorities to his imminent return in addition to passing twice through immigration control, for which country information suggests the authorities crosscheck names against databases of the Ministry of Intelligence and Security as well as the Revolutionary Guard.[3]

   [3] UK Home Office, Iran: Illegal Exit, July 2016, p. 7

9. In considering whether incorrect information was provided I have considered the basis upon which he claimed to fear the Sepah and Iranian Security Agency in his application form. This included his political activities in Iran and being in a relationship with a girl whose father was [an officer] and ‘one of the Leaders of Sepah’. Regarding the latter, he claimed in a very brief submission accompanying his application that the [officer]’s brother recognised him at the demonstrations ‘and therefore continued to ensure I was targeted for my involvement’. I find this information, namely that the [officer] continued to ensure he was targeted, to be incorrect for the following reasons.

10. The applicant feared personal retribution from his former girlfriend’s father who he claimed was [an officer] in the Sepah. He claimed in his statement that the [officer]’s brother had seen him at a protest in 2009 which at the hearing he clarified was actually more accurately described as a friend seeing the [officer]’s brother. That the friend saw the brother does not mean the brother saw the applicant. The applicant claims that he was then arrested, raped and tortured by members of the security forces about a year after the protests during which his friend had seen the [officer]. I accept that the rape and torture occurred. It is possible that it occurred at the instigation of the [officer], though this would be speculation.

11. The applicant then remained in Iran for another six months. That the applicant was not approached by the [officer] nor by proxies openly working on behalf of the [officer] in the months after his rape leads me to find that either the [officer] did not see him at the protests and the rape was not instigated by him or the [officer] was behind the rape but felt that the retribution he had inflicted upon the applicant was sufficient. Considering the seniority of the [officer], were the applicant’s claim that the [officer] ‘continued to ensure I was targeted’ true then there would have been continued targeting against him while he was still in Iran for the six months between his rape and his departure. Instead, there was no targeting (the threatening letters and phone calls all occurred prior to the rape, there are no claims that they continued after the rape and before he left Iran). The applicant claims that this was because he went to his uncle’s [property] and was out of sight.

12. If by some chance the [officer] were seeking the applicant but was unable to find him in Tehran and did not check his extended family’s properties, a fact I find highly unlikely, then, being [an officer] in the Sepah which has authority over airport security as noted above, I find he would have established alerts such that he would have been informed of the applicant’s departure in 2011. No action was taken by authorities on the applicant’s departure from Iran when he left using a passport in his own name.

13. For these reasons I find that the applicant had provided incorrect information by writing that the [officer] had ‘continued to ensure I was targeted’.

14. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

15. 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).

16. 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: ss.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994. 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.

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

    The Tribunal’s considerations

    The correct information

18. The correct information was established through the earlier reasoning and is that the [officer] was not continuing to ensure he was targeted. I place considerable weight in favour of exercising the discretion to cancel the visa.

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

19. The decision to grant the visa was not based in part or wholly upon the incorrect information. Instead, the decision to grant the visa was based upon sur place events, specifically the [events transpiring on his boat journey to Australia]. [Details deleted]. There was considerable national and international media coverage which according to the applicant included photos of him. The Minister’s delegate determined that Iranian media covered the event which, alongside the view they had formed that Iran held a harsh line on failed asylum seekers, led the Minister’s delegate to grant the applicant a protection visa. For this reason I place considerable weight against exercising the discretion to cancel the visa.

    The circumstances in which the non-compliance occurred

20. The applicant denied there being non-compliance but emphasised that any perceived non-compliance would arise from inconsistencies resulting from him being severely traumatised [from his journey to] Christmas Island. The circumstances surrounding the inconsistencies are relevant as the applicant provided more extensive details in his official application lodged three months after his arrival. It is those details which the Department subsequently found to be incorrect based upon his return to Iran.

21. The applicant has claimed that he was traumatised and as such any inconsistencies were a result of the circumstances surrounding his arrival. While I accept that this may be the case were he interviewed days or weeks after arriving and if the inconsistencies were around minor details, but his application, including statutory declaration, was made three months after [his arrival]. Furthermore, the incorrect information identified is at the very core of his claims. I do not accept that his claims would have changed due to this traumatic experience arising from his method of arriving to Australia. As such I find that there are no extenuating circumstances for the non-compliance and for that reason place no weight against exercising my discretion to cancel the visa.

    The present circumstances of the visa holder

22. The applicant does not have a partner or children. He is currently working as [an occupation].  He carries a workplace injury for which he did not apply for compensation and does not seek regular medical treatment. The applicant claims to continue to suffer from the traumatic events of his arrival to Australia through flashbacks and nightmares. Despite these claims the applicant has not engaged with the mental health services available to him as a member of the Australian community, though a psychologist noted that the applicant,

    [A]ppears to have a very “unsophisticated” understanding of the mental health system in Australia. To date, he has therefore not availed himself to any mental health counselling or treatment. In my opinion it is likely that a further concern for [the applicant] is that even if talking based mental health treatment (psychotherapy) was adequately described to him, this may well be a feared process which he would seek to avoid because symptoms of avoidance are integral to his current trauma related symptoms.

    For the reasons given by the psychologist regarding the applicant’s state of mind I place no weight on the fact that he has not availed himself of these services.

23. I put to the applicant country information on the standard of mental health facilities in Iran to ascertain whether he would have access to services were he to choose to access them and to evaluate their quality. The World Health Organisation’s Mental Health System in the Islamic Republic of Iran report found that while there are shortcomings in the government’s response to mental health issues, it is a ‘well-resourced and competent system’.[4] In an academic article written by Priester he writes, ‘Having spent considerable time in discussions with professors and students involved in [Tehran Psychiatric Institute] I find the training and students to be on par with some of the best U.S. mental health counselling training institutions … the doctoral-level training reflects the curriculum taught in American Psychological Association’s accredited counselling or clinical psychology training programs.’[5]

    [4] World Health Organisation, WHO-AIMS Report on Mental Health System in the Islamic Republic of Iran, 2006, accessed on 14 March 2018

    [5] Priester, P E. ,Mental Health Counseling in the Islamic Republic of Iran: A Marriage of Religion, Science, and Practice, Counseling & Values, 2008, 52(3), 255

24. In response the applicant said that the mental health support system is for people who can afford it. I noted that the WHO report states that, ‘All mental disorders are covered in social insurance schemes, but there are limitations for the length of a hospital stay.’ He added that medication is really expensive. I put to him that he’s not taking any medication now for his mental health. He noted that he is taking medicine for his back. I find that the mental health services in Iran would be adequate and accessible to the applicant. The applicant did not raise an issue regarding whether he would have problems accessing the medicine for his back.

25. For the reason of the applicant not accessing mental health services in Australia and the availability of adequate services in Iran, I place no weight against exercising the discretion to cancel his visa for the reason of his present circumstances.

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

26. Having found that the applicant provided incorrect information I now consider whether he has breached his obligations. The applicant has claimed and continues to claim that the wider security apparatus posed a threat to him for reasons of his participation in political activities. Under Subdivision C of Division 3 of Part 2, s.105 requires visa holders to as soon as practicable inform an officer in writing of the correct answer.

27. The applicant has changed his claim, no longer stating that he feared the government security organisations including the Sepah and ‘Iranian security’ as per his answer to question 44. He claimed that the fact that he wasn’t detained when passing through immigration was not a relevant matter as he feared the local Basij and not the other security organs. This is a substantial deviation from his original claims. In considering whether this deviation could have arisen due to his mental health I have reviewed the submission by the psychologist. I accept that the applicant in completing his protection visa application could have been under psychological stress such that he was confused and inadvertently provided incorrect information. Nevertheless, the applicant did not correct it over the years. I find that the applicant did not meet s.105 by informing an officer of the incorrectness. Having said that, though, given his ongoing mental health issues and limited understanding of what is a complex legal environment I give little weight in favour of exercising the discretion to cancel the applicant’s visa for the reason that he did not inform an officer of the incorrectness.

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

28. No other instances of non-compliance by the visa holder are known to the Tribunal. I place little weight against exercising the discretion to cancel the visa.

    The time that has elapsed since the non-compliance

29. The applicant was granted a protection visa in mid-2011. Over six years have passed since this application. I place moderate weight against exercising the discretion to cancel the visa.

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

30. The applicant claimed at the hearing that there has been no breach of the law. There is no evidence before the Tribunal to suggest that there has been any breach of the law. I place no weight in favour of exercising the discretion to cancel his visa.

    Any contribution made by the holder to the community

31. The applicant submitted letters supporting his claim of providing voluntary work. He provided a letter from [Business 1] which stated that he began working with them in a volunteer capacity from December 2016. The letter was not dated. I asked him how long he had worked there and he said ‘a few months’. A second letter was submitted from the [a] Church dated [in] January 2017 in which the applicant is listed as having volunteered free of charge to fix the cracks and paint the church’s front porch. Prior to receiving his Notice of Intention to Consider Cancellation letter on the 22 November 2016 he had not done any volunteering, nor had he done any subsequent to these two stints.

32. Both letters indicate the applicant doing voluntary work immediately after he was notified of his cancellation. I find this to be an attempt at manipulating the visa review process. That the applicant would undertake such an action reflects poorly upon him. There being no other evidence of any volunteer activity in the preceding five years nor subsequently I give moderate weight in favour of exercising the discretion to cancel the visa.

    Other considerations

33. The prescribed circumstances as listed under r.2.41 are considered above. However case law provides that this is not an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case. I have also considered other aspects in this case.

34. Section 99 of the Act states:

    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.

35. As such the integrity of the sur place claims becomes relevant and should be considered in this review as they were provided by the applicant at the interview with the Department, were central to the decision of the Minister’s delegate and can be considered as information under s.101 of the Act.

1. The applicant claimed at the protection visa interview that for the reason of being on the boat which [received] coverage by the Iranian media he faced an enhanced risk as a failed asylum seeker. The delegate accepted these claims and was granted a visa based upon them. While it could be argued that objectively this claim has been undermined by his return, the country information at the time, as compiled by the Minister’s delegate and referenced in the primary decision, indicates that as best as was known then failed asylum seekers were at heightened risk upon return to Iran. As such that the applicant returned in 2014 does not undermine the claim that in 2011 the situation, as best was known, was such that he faced a real chance of serious harm. For this reason, having turned my mind to the applicant’s return to Iran as it relates to the sur place claim, I give no weight in favour of exercising the discretion to cancel the visa.

2. I have also considered the applicant’s extended stay in Iran. The applicant put to the Tribunal that he spent [number] months in hiding or under the radar—a possibility, but one which I find far-fetched. Had the applicant travelled discreetly back to Iran for a short period of time an argument could be made that he remained in fear of the regime, but the fact that the applicant returned for [number] months suggests that he had re-established himself in Iran.

3. The applicant claimed that he returned to Iran under critical circumstances, namely, the health of his mother. In reviewing the documentation provided by the applicant it is apparent that his mother’s health was not critical with [specified conditions] due to age. This was put to him at the hearing. He responded that his mother had problems that were accumulating and in understanding the situation one has to consider all of them. In addition his sister was calling regularly saying that their mother was crying all day. He also said that he believed she was going to kill herself. In his response to the s.107 notice the applicant wrote that he had been receiving distressing calls from his mother for approximately two years and was concerned that something grave was going to happen to her.

4. While I accept that the applicant’s mother’s mental health may have been conveyed to the applicant in such a manner as to suggest urgency, this does not explain why the applicant remained for [number] months. There being no reason for having remained in Iran for such a period I find that the applicant had re-established himself in Iran. For the reason that the applicant not only visited but re-established a life in Iran I give considerable weight in favour of exercising the discretion to cancel the visa.

5. The Department’s procedural guide also requires delegates to take into account other factors, such as Australia’s international obligations or whether an automatic cancellation may have occurred under s.140 of the Act. The Tribunal has considered the following factors in addition to those as required under r.2.41.

   Whether the cancellation would lead to the person's removal in breach of Australian's non-refoulement obligations

6. Consideration of whether the cancellation would lead to the applicant’s removal being in breach of Australia’s non-refoulement obligations engages with issues related to the applicant being considered a failed asylum seeker by the Iranian authorities, having participated in the Green Movement and any ongoing risks arising from that, being an Iranian Faili Kurd, and lastly any possible retribution from his former girlfriend’s family. That the applicant returned to Iran and lived there for [number] months is relevant as it tests the veracity of some of the applicant’s claims.

7. I accept that the applicant is an Iranian citizen, participated in ‘a lot’ of protests during the Green Revolution, was detained for a few days at which point he was raped and tortured, and that he was seen with a former girlfriend whose father was [an officer] in the Sepah. I also recognise that he arrived in Australia on [a boat] which [received] international coverage including in Iran.

8. I accept that the applicant was photographed holding a sign ‘[with specified slogan]’ and destroying photos of the leader.  

9. The applicant claimed that his mother received letters about him from the authorities during his return visit but she had burned them. I asked when was the last one she had received to which he said he didn’t know as she is scared of telling him everything. I noted that this was new information to which he responded that he hadn’t provided it before as his lawyer didn’t have a translator and so he couldn’t explain as his English isn’t good. I noted that the submission to the Department was very detailed and asked how they could have understood that but not the information that his mother had received some letters which was an important element. He responded by saying that he wasn’t sure if he had told anyone or not and that he has a bad memory because he had been hit on the head during [events in the boat journey]. I find that the applicant’s mother did not receive any such letters for the reason that the information was raised for the first time at this hearing raising credibility concerns which have not been dispelled by the applicant’s inconsistent answer in addition to a view that had the authorities known of his return and wanted to detain him then they would have sought him out at the very least by having sent someone to his mother’s house, which they did not. In reaching this finding I have taken into account his mental health and the impact it could have in contributing to any inconsistency.

   Considerations – Threat from the [officer]

10. I have earlier considered the applicant’s claims of being at risk of harm at the hands of the [officer]. I found that the correct information is that he was not a person of interest to him. As I found that he was not a person of interest at the time he left Iran in 2010 and at the time he returned in 2014 I also find that he will continue not to be a person of interest were he to return in the future. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future for the reason of being wanted by the [officer].

    Considerations – Threat from government security agencies

11. To return to Iran he accessed an Iranian passport through the Iranian embassy under his real name, he passed through Iranian immigration control and then remained in Iran for [number] months before passing once again through immigration control to return to Australia. The applicant contends that he held a low profile, used his friend’s phone, lived on his uncle’s [property] and avoided checkpoints. Regardless of his claims to have maintained a low profile, the applicant accessed a passport which would alert authorities to his imminent return in addition to passing twice through immigration control, at which point country information suggests the authorities crosscheck names against databases of the Ministry of Intelligence and Security as well as the Revolutionary Guard.[6]

    [6] UK Home Office, Iran: Illegal Exit, July 2016, p. 7

12. In the application form the applicant said that he feared being ‘harmed by the Basij, the Sepah Party and the Iranian Security Agency’. Were he of interest to the Sepah or Iranian security agency as he claimed I put to him that he would have been identified at the airport, either by being alerted through accessing a new passport or via the two databases that are crosschecked. He responded that they only arrest murderers or those accused of serious crimes. I put to him that country information indicates that people the government suspects of having committed a crime are taken aside upon arrival and interviewed in depth. He repeated that this intervention was only for those who had committed serious crimes and his problem was with the local Basij and for personal reasons. Considering country information explains that the Sepah and the Ministry of Intelligence and Security control the airport and he passed through the airport in total three times I agree with his revised assessment of not having a reason to fear those agencies when passing through immigration. As he has shown not to have a risk profile by passing through the airport I also find that the two agencies would not pose a threat to him in the rest of Iran for the reason that were he a person of interest he would be identified at immigration control. For this reason I find that the applicant’s claims as expressed in his application of the risk of harm he faced from the Sepah and Iranian security agency for having participated in the Green Movement do not amount to a real chance of serious harm in the reasonably foreseeable future or a real risk of significant harm.

13. Once through the airport the applicant then returned to his home where he had grown up and remained in Iran for [number] months. Were he of interest to the local Basij in Tehran, as he claims he is now, I find that it would be very likely at some stage that word would have got out that he was back. I do not accept that he could have gone underground for [number] months and not be identified by his feared persecutors considering the Basij have stations throughout the country as described in the country information below or as the applicant suggested when he stated that ‘every suburb has a Basij base’.

    The structure of Basij is slightly similar with the structure of a communist party from certain totalitarian states. There are several levels of society: every Iranian city of a considerable size is divided into two “areas” or “regions” whereas in the small Iranian towns and villages there are "cells" organized as social, religious and governmental bodies. There are also Basij units for students, workers and members of the tribes. Basij also created “Ashura Brigades” for men and “al-Zahra Brigades” for women. As far as their involvement is concerned, the members of Basij are considered to be “permanent”, “active” and “special”. Their recruitment is done by local mosques by informal selection committees of the local leaders. The leaders of the mosques are considered to be the most influential members of the committees.[7]

    [7] Dumitrescu, O., The Intelligence and Security Services of Iran, World Security Network, 29 November 2010, accessed on 17 December 2010 <CX255162>

14. Nor could he avoid all checkpoints in the countryside and not be reported upon by local informants, who would recognise a new face in a small village or know who he was. This is particularly so if the Basij were intent on harming him as he had described in his application and were capable of doing so as he had claimed. Based upon the past experience of his return and country information I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from the local Basij.

    Considerations – Failed asylum seeker

15. I now turn my mind to his fears of being harmed for the reason of being a failed asylum seeker. It is this claim that led to the applicant being initially granted a protection visa. At that stage it was a sur place claim based upon the means by which he arrived, namely via a boat that [received] extensive international media coverage including in Iran. He had claimed that by being returned he would not only be known to be a failed asylum seeker but that by having come from a western country he would be perceived to be a spy—claims that he conflated in his statutory declaration accompanying his application. Despite having been found to face a real chance of serious harm I find that the situation has substantially changed since his initial protection visa assessment.

16. The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[8] Given the Iranian government’s position, when turning my mind to considering the applicant’s risks I do so upon the basis that were he to return to Iran in the reasonably foreseeable future he would do so as a voluntary returnee. As such I will consider whether as a voluntary returnee he would face a real chance of serious harm or a real risk of significant harm.

    [8] <>

    This claim has been tested by the applicant through his return to Iran passing through immigration control without being stopped. Having put this to him, he responded that the possibility remains that he will be harmed noting that a group of Bahais went to America and they were arrested upon return.

17. The risks the applicant claimed to face arose from the means of his arrival to Australia in 2010, the claimed exposure in the international and Iranian press and including the then rhetoric against asylum seekers by the Iranian government. This series of events led to him being granted protection. But his subsequent return in 2014 is indicative that the interest no longer exists. Country information supports this empirical view.

18. I put to the applicant the following country information and requested that he comment:

    5.33 Strong anecdotal evidence suggests that officials do not attempt to prosecute a voluntary returnee—largely because most failed asylum seekers leave Iran legally (e.g. regular departure through airports or with passports).

    I note that the applicant left Iran legally. The applicant responded to the information by saying that it is just a show. They’re not going to say that they’re going to kill people but they will kill people. He gave the example that his house is [near] a cemetery and he has seen mass graves being dug. He said that there is a high possibility the same will happen to him. He also gave an example of some Christians who went back and were imprisoned for 40 years.   

19. Considering that the applicant was not of interest upon arrival to Iran in 2014 and country information from 2016 suggests that he would not be of interest, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future were he to return to Iran for the reason of being a failed asylum seeker and having arrived in Australia through [a well-publicised boat arrival].

    Consideration – No religion

20. The applicant added that he doesn’t have a religion and that he is likely to be harmed because of that. I put to him that according to the World Values Survey nearly a quarter of Iranians never attend religious services and another 23% only attend on holy days[9] and added that he would be perceived to be like half of the rest of the population. He responded that they have a religion and that he doesn’t. Having suggested that no one would know that he hasn’t a religion he responded by saying that they would find out. I do not accept that the applicant would be found not to have a religion as there is no reason arising from the facts that the applicant would be questioned in this regard. I find that the applicant would not face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future were he to return to Iran for the reason of not having a religion.

    Consideration – Past participation in the Green Revolution and possible future participation in protests

    [9] World Values Survey, ‘Iran Wave 2005-2009 Online Data Analysis: V186 – How often do you attend religious services?’, <

21. Regarding the applicant’s claims of fearing harm for his involvement as a protestor in the Green Revolution including having held a sign with ‘[with specified slogan]’ and destroying photos of the leader I asked whether he would be considered a low or high profile protestor. He said that the Supreme Leader had told the Basij that they had the right to fire so if you were a high profile protestor they will kill you right away. Considering that he was not fired upon and/or killed I infer from this that he acknowledges his role as being perceived as low level.

22. I read to him country information on this matter:

    3.67 Most lower profile activists arrested in the 2009 and 2010 protests and subsequently released are unlikely to face serious on-going harassment, and should normally be able to go about their daily lives unmolested.

    I put to him that someone with a profile such as his who has been arrested is unlikely to face ongoing harassment. He responded that there is a high likelihood that he’ll be arrested because they think that a person who is dangerous to the regime will protest again so they arrest them. He affirmed that he disagreed with the information from the Department of Foreign Affairs and Trade (DFAT). I asked if he had any evidence to support his view that it is wrong. He responded that a lot of people that were there were killed or tortured such that they wanted to kill themselves.

23. I find that the applicant has not presented any evidence that would undermine DFAT’s advice and having found that he was a low profile protestor, I find that he faces a remote chance of serious harm and similarly a remote risk of significant harm in the reasonably foreseeable future were he to return to Iran for the reason of having participated in the Green Revolution protests and been arrested for this role in them.

24. I also considered whether the applicant would once again participate in political activities such as the protests during the Green Revolution. I asked the applicant if he had participated in any political activities against the regime while in Australia, to which he responded that he had joined the protestors in [an Australian location] in support of the 2017/18 protests in Iran. The applicant claimed that Iranian authorities video tape protests and use this against returnees. There is country information which supports this claim, namely that Iran does monitor some in the diaspora and those seeking asylum,[10] but it is also nuanced in that it is in instances when protestors are seen to have committed crimes including political or religious crimes.[11] The applicant has not participated in any political activities for seven years. Then, as before, when mass protests broke out he joined in. For his participation in protests in the past including in Australia I find that the applicant would not be seen to be a threat to the regime and as such would not be of interest to the regime upon return. But I do accept that the applicant would in the reasonably foreseeable future participate in mass political protests again if he were to return to Iran. The question I turn my mind to is what level of risk he would face. The applicant stated that he participated in a lot of protests saying at the hearing that he tried to go to most. He was not arrested or harmed until more than a year after the first protests broke out at which point in time he was targeted by a group from the local Basij and dealt with extrajudicially, possibly, as noted above, upon the instructions of the [officer] for other reasons. I find that the applicant’s future participation in such mass scale protests in Iran would lead to the applicant facing a remote chance of serious harm and a remote risk of significant harm based upon his previous experiences and country information.

    Consideration – Being a Kurdish Iranian

    [10] Department of Immigration and Border Protection, Issues Paper, Iran: Returnees, April 2015

    [11] Iran: CI170620132605508, Ahwazi Arab protesters in Australia – Iranian authorities monitoring anti-government activities overseas, question 4

25. As a Kurdish Iranian the applicant felt that there was serious discrimination against him. He told the Tribunal that he gets taunts such as ‘he’s a Kurd, he’s a Kurd’. I asked if there was anything else. He said that those close to the border are in a worse position but not for those such as him. I find that the taunts the applicant gets do not amount to serious or significant harm and as such he does not face a real chance of serious harm or a real risk of significant harm for the reasons of being an Iranian Kurd.

    Consideration – Continuing pursuit by the [officer]

1. He claimed that there is a high possibility that his former girlfriend’s family is still searching for him. I put to the applicant that he wasn’t searching for him immediately after the protests or when he returned to Iran, to which he responded that he was in the desert and the mountains and no one knew that he was there. The applicant had said that he had stopped seeing this girl after he was arrested (in 2010), but despite this he believed that the [officer] would persist in searching for him so as to retain his honour and once found he would be killed. I put to him that he was arrested and held by the authorities upon the instigation he claimed of the [officer], yet he wasn’t killed. He responded that he was afraid of being raped again. After being raped he remained in Iran for six months but claimed that he was in the desert behind the mountains which put him away from the reaches of the [officer].

2. Having accepted that the applicant was detained by the Basij and raped I cannot dismiss the possibility that it was at the instigation of the [officer], nevertheless, the fact that the applicant was subsequently released, then remained in Iran for a further six months before passing through immigration three times strongly suggests that the [officer] no longer had an interest in any retribution. The applicant responded that only high level people of interest are detained through the airport watch list. While country information referenced earlier does not specify the extent of the watch lists I find that the [officer]’s seniority would allow him to either officially or unofficially place an individual such as the applicant on those watch lists. Considering these facts I find that the [officer] will not seek retribution against the applicant were he known to have returned. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future were he to return to Iran for the reason of his involvement with the [officer]’s daughter.

   Consideration – Having lived in a western country

3. The applicant also raised a concern that he fears being at risk for the reason of having lived in a western country and being perceived as western which would make him more vulnerable to attention from the security forces. I put to the applicant the following country information:

   DFAT assesses it is difficult to make an overall assessment of the treatment of what are sometimes labelled ‘Westernised’ Iranians. This term is of very limited usefulness in a society where up to one third of the people, middle class and above, mostly in urban areas, aspire to and try to live what could be called a modern lifestyle. Many poorer Iranians also aspire to such a lifestyle but live more traditionally. However, youth in particular can experience some form of low-level harassment from security authorities, such as being subjected to searches, car checks and verbal warnings for dress or behaviour. It is important to note the significance of Iran’s sizeable youth population in this regard.

4. The applicant responded by simply saying that his life would be in danger and that it won’t get to that point as he’ll be killed or raped before then. I find that the applicant would not face adverse attention such that it would constitute a real chance of serious harm or a real risk of significant harm for the reason of being perceived to be ‘westernised’.

   Cumulative considerations

5. In MILGEA v Che Guang Xiang [1994] FCA 1259, the Court required that to establish a real chance it is necessary to look at the totality of circumstances.[12] As such I turn my mind to considering the cumulative impact upon the applicant’s profile in relation to refoulement grounds. In particular, I considered his circumstances as someone who is a failed asylum seeker who came on a high profile boat, has lived in a western country, participated in the Green Movement as a low level protestor and would participate in future mass protests, is an atheist, is an Iranian Faili Kurd, and had been in a relationship with a girl over a decade ago who has a father who was [an officer] in the Sepah. As the applicant previously returned to Iran under these same circumstances (other than having participated in protests in Australia) without facing harm, and considering that I have not accepted his claims that he adopted a low profile for [number] months, and having found that the chances of future harm arising from each claim is either remote or does not exist, I find that cumulatively the risks do not amount to a real chance of serious harm. I have also taken into consideration the applicant’s sur place activities which occurred after he returned to Iran as well as the seven years he has lived in Australia and how that would impact his behaviour such that he may be perceived adversely. In considering the entirety of the claims collectively I find that the applicant does not face a real chance of serious harm in the reasonably foreseeable future were he to return to Iran.

   [12] Jenkinson, Spender and Lee JJ, 12 August 1994 at [17]

6. I have also considered the Department’s Complementary Protection Guidelines as required by Ministerial Direction No. 56. In each of the integers identified above I found there did not exist a real risk of significant harm, as defined exhaustively in s.36(2A). I now turn my mind to considering the claims cumulatively. Having previously returned to Iran under these same circumstances without facing harm and considering that I have dismissed his claims that he maintained a low profile by living in the remote areas away from Tehran, and taking a forward looking perspective I find that cumulatively the applicant does not face a real risk of significant harm. I have also taken into consideration the applicant’s sur place activities which occurred after he returned to Iran as well as the seven years he has lived in Australia and how that would impact his behaviour such that he may be perceived adversely. In considering the entirety of the claims collectively I find that the applicant does not face a real risk of serious harm in the reasonably foreseeable future were he to return to Iran.

   Additional considerations

7. The Department’s guidelines set out other additional matters that should be taken into account where relevant. This includes whether there are other persons whose visas may be cancelled because they are family members, mandatory legal consequences to a cancellation decision, for example detention, as well as whether indefinite detention is a likely consequence of the cancellation decision.

8. I have considered whether there are other persons in Australia whose visas would, or may, be cancelled because they are members of the same family unit and found that there aren’t and as such place no weight on this consideration.

9. I now turn my mind to consider whether there are mandatory legal consequences which prevent the applicant from making valid visa applications. In this applicant’s case these are ss.46A(1), 48 and 48A. When exercising these provisions the applicant will not be able to make any further lawful applications, or be issued any further visas other than those prescribed or without Ministerial intervention, and therefore he may be detained. Although the applicant is subject to a bar preventing further applications while onshore I place little weight against cancelling the visa in this regard as the applicant has not identified additional claims that would put him at risk were he to return to Iran.

100.   I have also considered whether there are mandatory legal consequences to a cancellation decision, for example, whether indefinite detention is a likely consequence of the cancellation decision. It is the current policy of Iran to refuse to accept involuntary returnees. The question before the Tribunal is whether affirming the delegate’s decision would lead to indefinite detention. In this case it does not. The applicant is an Iranian citizen and having found earlier that he does not face a real chance of serious harm or a real risk of significant harm whether the applicant faces indefinite detention in Australia is dependent upon a choice he makes rather than the outcome of this decision. That he has chosen in the past to return is indicative of a willingness to return to Iran. For this reason I place no weight on this consideration.

101.   There are no other matters that I deem relevant to consider.

102.   In considering discretionary findings cumulatively I am of the view that the mitigating circumstances presented are not sufficient to outweigh the decision in favour of cancelling the visa.

103. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

104.   The Tribunal affirms the decision 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.