1701319 (Refugee)

1701319 (Refugee) [2017] AATA 2968 (23 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701319
COUNTRY OF REFERENCE:                  Stateless
MEMBER:Denis Dragovic
DATE:23 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 23 November 2017 at 9:11am

CATCHWORDS
Refugee – Cancellation – Protection visa – Stateless – Iranian origin – Member of a social group – Person of interest – Basij – Imputed political opinion – Mir Hussein Moussavi supporter – Green Movement protests – Provided incorrect information – Revisited Iran – Used a legitimate Iranian passport – Subpoenaed in Iran – Embraced Western cultural characteristics – Failed asylum seeker
LEGISLATION
Migration Act 1958 ss 5AAA , 46, 46A , 48A ,65, 97, 101, 101(b) , 102, 103, 104, 105, 107, 107(2), 109(1), 109(1)(b)-(c), 109(2), 140, 424A, 424AA 426A, 499
Migration Regulations 1994 r.2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
MILGEA v Che Guang Xiang Unreported, Federal Court of Australia [1994]
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision 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).
The delegate cancelled the visa on the basis that the applicant had provided incorrect information for his visa application, namely, in claiming to fear harm for having participated in political demonstrations in 2009 in which he was identified by the authorities who subsequently raided his parents’ house. In addition he claimed to fear returning to Iran for the reason of being frequently harassed by the Basij as a consequence of wearing what is deemed inappropriate clothing, playing a guitar and socialising with his girlfriend in public. The incorrect information identified by the delegate is the adverse profile the applicant claimed to have upon which his protection claim was based. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 18 July 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] and [Mr B].
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
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
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 and Border Protection of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Relevant information pursuant to s.107 notice
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
s101. 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
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.’
On the basis of the claims the applicant made in his application he was granted a protection visa [in] September 2010.
[In] December 2014 the applicant received notification of approval of his Australian citizenship which emphasized that he had to undertake a Pledge of Commitment at an Australian citizenship ceremony to become a citizen. The applicant travelled to Iran on the [in] March 2015 and returned [in] May 2015. As a result of having returned to the country he feared harm the Department further investigated and found that an Iranian passport was issued to the applicant [in] February 2015. Being satisfied with there being a breach of s.101(b) [in] August 2016 a Notice of Intention to Consider Cancellation was sent. A response was submitted by the applicant’s representative [in] December 2016. An International Treaties Obligations Assessment (ITOA) was subsequently undertaken in November 2016.
s.109 cancellation decision
Following receipt of a response from the applicant and the investigation by the Department the delegate concluded that the applicant was in breach of s.101(b). The justification in summary was the following:
Given that the visa holder returned to Iran under his true identity, with no apparent issue, suggests that he did not hold the claimed adverse profile as claimed by him in his protection visa application. Additionally, the available evidence indicates that the visa holder, represented himself in his true identity, has had interaction with the Iranian authorities, has voluntarily applied for an Iranian passport and issued with an Iranian passport, consequently alerting the Iranian authorities of his intention to travel to Iran, with no apparent issue arising. Moreover, the visa holder has returned to Iran without him being identified or detained. This significantly undermines the visa holder’s claims for protection and suggests that he did not hold the claimed adverse profile with the Iranian authorities nor was he of interest to them as claimed by him in his protection visa application.
As a result the visa was cancelled under s.109 [in] January 2017.
Prior submissions and evidence available to the Tribunal
Submission in response to the s.107 notice dated [December] 2016 which included:
·Scanned copy of his Iranian passport issued [in] 2015
·Scanned copy of his expired Australian Passport issued [in] 2011
·Scanned Notification of Approval of Australian Citizenship dated [December] 2014
·Scanned certified translation of subpoena issued by the Justice Department of the Iranian Islamic Republic dated August 2015
·Documents relating to his mother including her identity card, a medical certificate and MRI results
·Certified translation of his father’s death certificate dated [October] 2014
A pre-hearing submission dated 15 June was received by the Tribunal which contained the following:
·Representative’s submission in response to the matter at hand
·Evidence of pending charges in Iran – a scanned certified translation of a subpoena issued by the Justice Department of Iran dated August 2015
·Evidence of his father’s death – Certified copy and translation of his death certificate dated [October] 2014
·Evidence of his mother’s health condition – identity card, medical certificate, MRI results
·Additional identity documents of the applicant including tax returns
A pre-hearing submission dated 17 July 2017 was received by the Tribunal which contained four medical documents related to the applicant’s condition of anxiety and depression.
A post-hearing submission dated 1 August 2017 providing a copy of his Iranian passport, two character references and a photograph of the applicant dated March 2015.
At the hearing the applicant reiterated that the reason he left Iran was that he feared the Basij and the entire government of Iran.
He stated that he returned to Iran because his father had passed away earlier and then after two months he learned that his mother was very sick and didn’t know how long she had left. I put to him that according to the medical certificate he presented his mother had a slipped disc which is not life threatening and would not justify an urgent return to Iran. He agreed that it is a slipped disc. But added that she had eight children and is [age] years old and that she had [another health problem] as well. While if it was just one ailment she could handle it but all of them together made it hard. I put to him that the medical certificate he had provided showing his mother having an MRI in March of 2015, a period when he was in Iran, did not correlate with his claim that his motivation for return was that she was in need of life threatening surgery. He responded that they were trying to find alternatives to surgery and reiterated his claims that she had lost a lot of weight, couldn’t walk and go to the toilet and that he was told by his sister that his mother’s situation was very dangerous for her and was recommended for surgery. After a few weeks in Iran he claimed that he had identified a doctor who found an alternative to surgery. I put to him that as of [date] May the doctor was recommending surgery, but he had told the Tribunal that he had found an alternative shortly after arriving which was in March. I put to the applicant that I found his story inconsistent and contradictory. He responded that it was two years ago and so he couldn’t remember the dates and order of events exactly. I put to him that I doubted that after two years he couldn’t remember the order of what amounted to important events in his life. I find that the applicant’s mother did not face life threatening surgery based upon the evidence provided by the applicant including that the ailment was a slipped disc alongside the inconsistency in his claims.
Entry and exit through Iran
His return to Iran was arranged through his [brother-in-law]. He claimed that he organised for a man to meet him at the airport upon arrival to Iran. According to the applicant, this man came to him and took him through the airport. After one day his luggage and passport were delivered to his address. He claimed that he didn’t talk to officials in the airport and specifically that he wasn’t interviewed or interrogated.
I asked the applicant why, considering his brother-in-law was so well connected and was able to organise for him to enter and exit the country by-passing security and immigration, couldn’t he settle the problem the applicant was having with the local Basij? The applicant responded that the Basij couldn’t be paid off unlike the airport groups. I put to him that the Sepah runs the security at the airport which also controls the Basij. He explained that the contact in the airport was powerful enough and had enough connections to be able to arrange it in the airport but he was not sure if he was Sepah or not.
I asked the applicant to describe the process he went through to pass through security in the Imam Khomeini Airport. He provided brief descriptions which I found unconvincing. I put to him country information which identifies exit procedures as including acquiring an exit visa from the police (which requires two photos, military service completion certificate along with other documents)[1], passing through security to enter the terminal where they check your passport, check-in where they register the passenger’s name and finally the immigration check. He put to the Tribunal that his passport was handled by the fixer prior to his departure and that he was met at the entry to the Terminal. He disagreed with the country information that an exit stamp is required. He claimed that he didn’t pass through any security as he was led through a ‘staff only’ entrance. He didn’t surmise how his fixer managed the check-in stage other than saying that he got him onto the plane without going through those processes.
[1] Canada: Immigration and Refugee Board of Canada, Iran: Types of exit permits issued to individuals for travel abroad; the difference between an exit permit and an exit stamp; how these permits are obtained and whether they are placed inside the passport or take some other form; restrictions applied to certain categories of applicants; the criteria for multiple and single-exit permission; exit fees; whether exit permission is set for a specified time period and the penalties, if any, for overstay; countries that Iranians can travel to without a visa (2004 - February 2006), 3 April 2006, IRN101053.E, accessed 26 October 2017,
Country information suggests the following:
Ms Enayat gave evidence that, on return, she considered that it would be “virtually impossible” for citizens who left Iran without proper papers (passport and exit visas), through unauthorised border posts, to conceal that fact, whether they apply for redocumentation or obtain temporary documentation in the course of removal procedures. She said she did not think that the appellant could conceal either that he had left Iran illegally, or that he had sought asylum in the United Kingdom.[2]
Passport control checks are sophisticated in Iran…but it is theoretically possible that an individual could convince an airport officer to allow them to proceed.[3]
Some Iranians were reported to have managed to leave through the airport on forged documents and through bribery, although it was also reported that it was very difficult to leave Iran illegally through an airport due to thorough security checks.[4]
[2] United Kingdom: Upper Tribunal (Immigration and Asylum Chamber), SA (Iranian Arabs - no general risk) Iran v. Secretary of State for the Home Department, 07 February 2011, CISD9559B12295
[3] Department of Foreign Affairs and Trade, Australia, DFAT Country Information Report: Iran, 21 April 2016 at [5.29]
[4] Refugee Review Tribunal, Country Advice: Iran – IRN39507 – Undocumented Faili Kurds – Movement – Registration – Treatment – Green Cards – Exit Procedures – Right to Work – Health Care – Property – Iranian Nationality – Marriage, 28 November 2011
Under s.424AA I put to the applicant information before the Tribunal that could be a reason or part of a reason to affirm the decision. The information was the Department’s interview record upon return to Australia in May 2015. Specifically it reads, ‘Passenger stated on arrival in Iran he had been questioned regarding his time in Australia. Passenger stated he was also questioned on departure from Iran, and was initially not able to board his flight. He stated a friend who works at the airport helped sort things out.’[5] The applicant claimed not to understand despite repeated explanations of why it was relevant. I explained that I had specifically asked whether he was interviewed upon arrival to Iran to which he said that he wasn’t while in this statement he claims that he was. I similarly put to him that he had stated that he didn’t go through any of the checks I had presented upon departure and instead that he went straight through to the plane without engaging with any officials. He responded that there was some misunderstanding. He said that three years ago he couldn’t speak English 100% and that he was excited to be back to Australia and he was just saying that, but it’s just a misunderstanding. I put to him that I found it hard to accept that it could be a misunderstanding considering the scope of his answers as well as his ability to convey other detailed information including that his mother was ill, father had passed away, that he had stayed in his family house in Tehran and spent time with them and other family members.
[5] [File number] at folio 35
Considering country information suggests that passport controls are sophisticated and that there are thorough security checks while the applicant’s description of his facilitated departure was unconvincing and contradictory, I find that the applicant entered and exited Iran without the help of a fixer using a legitimately obtained genuine passport.
Regarding the applicant’s statement upon entry to Australia that his friend at the airport helped him board the flight, I was unable to examine it further as the applicant maintained his story that he was not stopped. As such I am left only to speculate as to what the reason for the claimed problem was. As the range of possibilities are large and many not related to any adverse profile with the government I give this evidence no weight.
Subpoena
The subpoena the applicant had provided the Department was issued [in] August 2015. He told the Tribunal that it was sent to his father’s old address and that he only received it a few months after he had left Iran via his sister who had emailed it to him. He claimed that his sister had it for a year but didn’t tell him. She didn’t want to stress him. I put to him that I find it hard to believe that she would do so. He responded that they don’t tell him everything that is happening. I asked why he had waited until [December] 2016 to submit it to the Department. He put to the Tribunal that as soon as he received his notice that the Department was considering cancelling his visa ([date] August 2016) he told his sister and she informed him about the subpoena. He claims that he didn’t know anything about the process and so didn’t know what was required other than what his lawyer would ask him for.
I put to him country information that notes the format for court summons changed in June 2015 and that the new Iranian Code of Criminal Procedure came into force in Iran in June 2015 and replaced the previous version that had been adopted in 1999. Under Article 89 of the new CCP:
summons must be signed by a magham-e ghazai (“judicial authority”) and should include the reasons for the summons as well as the date and location of reporting and consequences of failing to report.[6]
He responded that he wished that it was like that. He said that the Iranian government is the biggest supporter of terrorism in the world and that they could not be believed. He stated that court processes, lawyers and paperwork do not operate as they should.
[6] Amnesty International, ‘Flawed Reforms: Iran's New Code Of Criminal Procedure’, 11 February 2016, CIS38A8012227
I asked why he thought that it took six years for the government to get around to pursuing him. He clarified that they were looking for him in 2009/2010, nevertheless, regarding the timing of the subpoena, his sister was divorced and he guesses that his ex-brother-in-law upon learning that he had returned reported him as having returned which triggered the subpoena. I asked why they didn’t come and take him from his mother’s house when he had visited to which he explained that he was reported to the authorities only after he had already departed.
I put to the applicant that country information indicates that it is easy to get forged documents[7] and asked whether there was any reason to believe that his subpoena was not forged. He responded that if it was fake then he’d have a pile of documents in support of his case and that as he has been honest throughout his seven years of living in Australia there would be no reason for him to start to be dishonest.
[7] United Kingdom: Home Office, Country Information and Guidance - Iran: Background Information, including actors of protection and internal relocation, July 2016, version 3.0, at [17], accessed 16 November 2017, type="1">
I do not accept the legitimacy of the applicant’s subpoena for the following reasons. The applicant fled Iran for reasons emanating from his involvement in the presidential election protests in 2009. He claims that he was a person of interest to the local Basij who saw him during the protests. He claims that he fled following raids upon his parents’ house. That no subpoena was issued immediately after these events but instead six years later raises serious doubts as to the veracity of his claims. Country information indicates that it is easy to get fake documents and as such I place little weight on the copy of the subpoena provided to the Tribunal. I found his explanation of how he may have been reported to the authorities to be unconvincing, though, I place no weight on this element as any reasoning would be speculative. I also find his explanation of why he didn’t provide the subpoena to the Department earlier to be unconvincing. Overall, considering the six year delay in processing a subpoena, the circumstances in which it was withheld from the applicant by his sisters and country information on the availability of fake documents I find that the subpoena is not genuine.
Throughout the applicant’s stay in Iran he encountered no problems. He went to the doctors, hospital, pharmacy and shops without being stopped. He claims that he followed the rules and dressed up as is considered appropriate. I accept that he did not encounter any problems and that he followed the rules while in Iran including dressing as is considered appropriate.
As to why the applicant sought and obtained an Iranian passport despite fearing Iranian authorities, he claimed that his friend had told him to try it despite his doubts that they would give it to him. The process included paying a fee and sending documents such as his birth certificate (Shenasanehmah) without having to travel to Canberra for an interview. He claimed that the Iranian government facilitated it so that they could get him when he returned to the country. I accept that the applicant obtained the passport as described but I do not accept his suspicion of why it was processed for the reason that other evidence regarding his engagement with authorities in Iran does not indicate a government interested in the applicant. I find that the applicant’s suspicions of the Embassy’s motivations for processing his passport are unfounded.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:
The s.107 notice referred to a statutory declaration that the applicant submitted dated 14 May 2010 in which he wrote that he feared returning to Iran for the following reason:
·You fear you will be imprisoned and tortured or otherwise seriously harmed by the Iranian authorities because of your involvement in political demonstrations in 2009, if you return to Iran;
·You opposed the current government and campaigned in public for Mir Hossein Mousavi in the lead up to presidential election in 2009;
·On the day of Ashura you joined a protest march with other protesters and were attacked by members of the Basij with batons and tear gas;
·You believed that you were recognised by members of the Basij who live in your neighbourhood and two days later, the Basij raided your parents’ house and assaulted your family demanding to know of your whereabouts;
·Since your departure from Iran, the Basij have returned several times to your house and one time confiscated your music, computer and other personal items. The Basij have also detained your father on two separate occasions;
·You were frequently harassed by the Basij in recent years as a consequence of wearing ‘inappropriate’ clothing, playing guitar and socialising with your girlfriend in public; and
·You fear persecution for reasons of political opinion by the Iranian government, and you are unwilling to seek the protection of the authorities
I note that while the statutory declaration was submitted for the refugee status assessment the applicant’s 866 visa application form in questions 42-46 states, ‘Please refer to my previously submitted RSA request’ as such he has incorporated the statutory declaration into the visa application.
Considerations
The applicant claimed but I did not accept that he was compelled to return to Iran because his mother needed surgery which could put her life at risk. He claimed but I did not accept that he undertook measures to avoid being detected when entering and leaving Iran. What is known and accepted is that he engaged with the Iranian Embassy to obtain a passport despite fearing the government of Iran and that he returned to Iran for a period of two months passing through immigration control where he was questioned by authorities and released each time.
That the applicant departed Iran using a passport in his name, engaged with the Iranian Embassy in Australia and passed through immigration controls in Iran twice I find to be sufficient evidence that the applicant is not and never was a person of interest to the Iranian authorities. For this reason I find that the applicant provided incorrect information in the form of his claimed government profile when describing the harm he feared.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the 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.
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 (related to what is in question)
The correct information was established through the earlier reasoning and is that the applicant does not have the adverse government profile that he claimed. I place considerable weight in favour of exercising the discretion to cancel the visa.
The content of the genuine document (if any)
As no document was provided there is no genuine document to consider.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or bogus document
The decision of the Tribunal to remit the matter to the Department was based partly upon the incorrect information identified in the earlier section of this decision. For this reason I place considerable weight in favour of exercising the discretion to cancel the visa.
The circumstances in which the non-compliance occurred
The applicant had claimed in his application that he had fled Iran in 2010 using a ‘false Iranian passport’. At the hearing he maintained that he had left Iran illegally. The Tribunal put to him via correspondence following the hearing under s.424A the following:
You have provided to the Tribunal a copy of the Observations page within your passport. It appears that the note on this page indicates that under your current name the Iranian government has recorded your preliminary departure from Iran as being on the [date] ([February] 2010). This departure date aligns with your claimed departure date of [January] 2010.
Can you please provide the Tribunal with a certified translation of this page in your passport?
In addition, if it is that the page refers to your preliminary exit from Iran to Australia under your current name can you reconcile this evidence with your claim in your statutory declaration dated 14 May 2010 and at the hearing that your preliminary departure from Iran was on a false passport in the name of [another name].
This information is relevant to the review because it goes to your claim of having departed illegally and the consequences you fear upon return resulting from this action. Furthermore, it goes to your credibility and could lead to further doubt about other claims you have made.
If we rely on this information in making our decision, we may choose to affirm the decision to cancel your visa.
The applicant responded by explaining that he was under stress at the time he made the application for an Iranian passport and that when he was asked of his last departure date from Iran he responded with [date] February 2010 as he couldn’t remember the exact date. He claims that ‘the officer at the Iranian Embassy requested he guess his departure date rather than provide an exact date.’ The applicant reasoned that the Embassy’s informal approach was because of their interest in having people who left illegally return so that the government can punish them. I find the applicant’s answers unconvincing. I find it implausible that the Iranian government would instruct applicants to guess their departure date and not have such information available to them. The applicant’s departure date would be known to those responsible for producing the new passport if the applicant departed under his real name. Not accepting that the Embassy would be so informal as to ask for applicants to give an approximate date of their last departure and so unsophisticated that they would not have that information available it follows then that he provided his real name when he left Iran the first time to come to Australia. Furthermore, I find his reasoning of why they would do what he claims contradictory. If the Iranian government was intentionally loosening their procedures to facilitate the return of illegal departures then it would have been flagged that the applicant was returning and he would have been caught upon arrival in Iran. This did not occur.
I found that the applicant departed Iran on his first journey to Australia on a legitimately obtained genuine passport. It is not in dispute that upon arrival to Australia the applicant did not acknowledge that he had left legitimately but rather claimed that he had to procure a false passport under another [name]. He claimed that he was wanted by the government and this compelled him to acquire a false identity with which he could leave the country. Having found that the applicant left Iran on a legitimately obtained passport under his real name I find that the applicant intentionally concocted his claims so as to further his chances of obtaining a protection visa. For this reason I place considerable weight in favour of exercising the discretion to cancel the visa.
The present circumstances of the visa holder (children, medical treatment…)
There are no extenuating circumstances of the applicant as such I give this element no weight.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant did not respond to the ITOA that was prepared. This was found through the hearing to be an error not related to the applicant’s actions and as such I do not give this any weight. The applicant has not breached any of his other obligations. For this reason I place little weight against exercising the discretion to cancel the visa.
Any other instances of non-compliance by the visa holder known to the Minister
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
The applicant came to Australia in February 2010. The applicant lodged the documents with the original claims in 2010. The applicant was granted a visa on March 2015. I place moderate weight against exercising the discretion to cancel the visa for the reason of his lengthy stay in Australia.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant has not been involved in any breaches of the law known to the Tribunal. I place little weight against exercising the discretion to cancel the visa.
Any contribution made by the holder to the community
The applicant has been actively employed as a [occupation] for between four and five years. He said that when he began he was working part time and receiving some Centrelink payments but as soon as he could move to full time he did so and has been without welfare since. The applicant has not been an active member of any community groups including Iranian diaspora groups. He has not been involved in any volunteering.
The Tribunal received evidence from two witnesses, [Mr B] and [Mr A]. The former gave evidence that the applicant has been working for him for five years [as] his main [worker]. His reputation is such that most clients ask for him to do the work. They trust him which leads to repeat work. The witness took a whole day off to appear before the Tribunal. The applicant is known to [Mr B]’s kids as they have dinners together. Overall [Mr B] described the applicant as an ‘outstanding bloke’. He added that he thought the applicant went about things the wrong way and got confused about how he went about things but he is now a benefit to the country, he works seven days a week and loves his job.
The second witness, [Mr A], has known the applicant for four years through [their] profession. [Mr A] is a [occupation] and would work with the applicant. Over time they developed a friendship. [Mr A] said that the applicant is a well-respected person and that clients specifically ask for him. He added that it says a lot when clients ask for a particular person to come back and that he believes the applicant is a deserving person.
He has not been involved in any political activity associated with Iran.
I accept that undertaking full time work is a contribution to the community and that his engagement with other Australians shows a degree of solidarity with his adopted community. For this reason I place moderate weight against exercising the discretion to cancel the visa.
Other considerations
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. 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 Australia's non-refoulement obligations
The delegate determined the applicant’s identity as Iranian. Without any information to the contrary and having sighted various documents from Iran along with the interpreter being a Persian interpreter I accept that the applicant is Iranian and have assessed the applicant’s claims against Iran as his country of reference for the purposes of the ‘refugee’ criterion and receiving country for Complementary Protection purposes. I also find that the applicant cannot avail himself of a right to enter and reside in a third country.
Were the applicant’s visa to be cancelled and the applicant voluntarily returned to Iran it is incumbent upon the Tribunal to consider whether he may face a degree of harm such that Australia’s international treaty obligations would be breached. The following were identified: the applicant having sought asylum in a Western country, having embraced Western cultural characteristics and his participation in the Green Movement. I will proceed to address each one.
Failed asylum seeker
With regards to seeking asylum I put to the applicant the following country information and asked for his response:
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).
5.34 From DFAT’s anecdotal observation at airports, a voluntary returnee (complete with IOM bags) does not attract much interest from authorities amongst the large regular international movements of Iranians. Credible sources have told DFAT that returnees will generally move quickly through airports …without official interest.[8]
[8] Department of Foreign Affairs and Trade, Australia, DFAT Country Information Report: Iran, 21 April 2016
He responded that he left Iran illegally and as such he doesn’t know about others’ circumstances but his would be different. He added that even if you haven’t done anything wrong they ask many questions. When you return to Iran from another country they look at you like you are a spy. They are afraid of everyone. If you have done something against the government what would happen to you? They kill people. Maybe you can get out of the airport without any problem but this wouldn’t happen to everyone.
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.[9] Based upon the Iranian government’s position when turning my mind to considering his claims I do so upon the basis of was 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 risk of significant harm was he to return.
[9] Alexandra Beech, ‘Iran would welcome back asylum seekers 'with pride', Iranian Foreign Minister says’, 16 March 2016, accessed on 10 October 2017, >
Alongside anecdotal evidence listed in the Department of Foreign Affairs and Trade (DFAT) country report read to the applicant other sources also suggest that the government does not prosecute voluntary returnees including those returning using temporary travel documents[10] (an implicit indication of being abroad for an extended period of time) nor those who are known to have sought asylum abroad and participated in IOM’s Assisted Voluntary Return programme as noted above. Based upon the available country information and considering that no alternative view was put to the Tribunal as he persisted with his claim that he left illegally I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons associated with being identified as a failed asylum seeker.
[10] Danish Refugee Council, LANDINFO and Danish Immigration Services, ‘Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures’, February 2013, pp. 68-69
Having embraced Western cultural characteristics

I read to the applicant country information on the circumstances of being perceived to have Western cultural characteristics:
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.[11]
[11] Department of Foreign Affairs and Trade, Australia, DFAT Country Information Report: Iran, 21 April 2016
The applicant responded that when he was young he couldn’t wear short sleeve shirts. I put to him that he is not young anymore. He gave another example of walking with a wife, because she doesn’t cover her head. I pointed out that he isn’t married and I note that he had expressly stated that he does not want to marry. He explained that you need to have two different life styles. One is inside the house and the other is in society. When in private you can listen to music and dance but not in public. In his application he identified frequently being harassed by the Basij as a consequence of wearing what is deemed inappropriate clothing, playing a guitar and socialising with his girlfriend in public. I find that the fears identified by the applicant are either not applicable to him or will lead to low-level harassment which I find does not amount to serious or significant harm.
Participation in the Green Movement
I read to him country information on the circumstances of protestors who were returning to Iran.
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.[12]
[12] Department of Foreign Affairs and Trade, Australia, DFAT Country Information Report: Iran, 21 April, at [3.67]
He responded that they are lying. He said that the government rapes people. They don’t mention what happens to them. Leaders of the group are still alive but no one knows what happened to them. Since 2009 until now many people have died in prison. This isn’t mentioned. He continued by claiming that a few years ago an America who was half American and half Iranian went back to Iran and he was imprisoned and the US paid $1bn to get him out. They keep people who do things against the government. They kill them. They bury them. They torture them. There is no power that can ask what happened to these people. He concluded by saying that the Tribunal should not believe what is written on the internet. There is no law in Iran. If you do anything against the government they can do anything.
I explained to him that the source was DFAT and our embassy in Iran. He responded that the Australian government embassy in Iran has connections to the government. The Iranian government wouldn’t allow the Australian authorities to find the truth.
I put to him that the Iranian government changed and seven years have passed. He responded that after 1979 there are people who can’t go back to Iran even though 40 years have passed. For him it’s only seven years. I emphasized that he is a low level protestor, that he has no political history either there or here and that there is no basis upon which to compare his situation to the 1979 groups. He responded that the government won’t ask if he’s low or high profile.
Country information from 2012, three years after the protests, shows a shift in the government following earlier years of harsh treatment including the application of the death penalty.
Persons involved in Green Movement protests have been pardoned by the Iranian authorities. In August 2012, Supreme Leader Khamenei pardoned 130 prisoners charged with security crimes. On 16 August, the Tehran Prosecutor’s office confirmed that about 90 prisoners had been released to that point, with most of them being activists and journalists who had been arrested during the crackdown on protesters following the 2009 presidential election.[13]
[13] ‘Prisoners released after annual pardons’, Radio Zamaneh, 16 August 2012
Based upon the country information available which indicates that low level protestors such as the applicant are unlikely to face serious on-going harassment, that there was a shift in the then government’s tone and since 2013 a new moderate government has taken charge I find that the likelihood that the applicant will face harassment upon return to be remote and as such that he will not face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future.
Furthermore, I find that the applicant not having participated in any form of politics while in Australia would not upon return participate in Iranian politics even was he free from fear. For this reason I find that the applicant does not face a real chance of serious harm or a real risk of significant harm as a possible future political activist.
Other claims raised at the hearing
The applicant claimed that he had a tattoo which would make it difficult for him to use a swimming pool or wear a short sleeve top. I read to the applicant country information on this matter by DFAT: ‘Unaware of any recent, specific report of people being targeted by security forces solely for having a tattoo’, but reported that it was ‘possible that a person with a visible tattoo could come to the attention of security forces and result in low-level harassment.’[14] The applicant agreed that he could face low level harassment. I explained that the claimed harm he fears needs to amount to serious or significant harm. He did not add anything further. I find that there is a remote chance that the applicant faces serious or significant harm for the reason of his tattoo.
[14] Department of Foreign Affairs and Trade, Australia, DFAT Country Information Report: Iran, 21 April, at [3.77]
The applicant claimed that he was an atheist and that he feared harm for that reason. I put to him that country information suggests that approximately one quarter of all Iranians are not practicing Muslims and another quarter only practice during major festivals.[15] I asked him who would find out that he was no longer a believer. He said that he could tell a friend and if he subsequently had a problem his friend could go to the security forces and report him. He claimed that people die because some say things about the prophet or against the government. I accept that the applicant is an atheist and would not participate in public exhibitions of faith. I also accept that the applicant privately would tell his friends that he is not a believer.
[15] World Values Survey, ‘Iran Wave 2005-2009 Online Data Analysis: V186.- How often do you attend religious services’, accessed 16 September 2017,
The applicant has said and country information supports the view that in Iran you have to maintain two lifestyles—a public and a private one. I find that the applicant’s public lifestyle would not lead him to face a real chance of serious harm or a real risk of significant harm for the reason of being an atheist as country information shows that a large portion of Iranians do not publicly practice their faith. I also find the applicant’s concern that a friend would possibly report him was he to learn of the applicant’s atheism as speculative and as such find that he does not face a real chance of serious harm or a real risk of significant harm for being an atheist in his private life.
Cumulative considerations
In MILGEA v Che Guang Xiang the Court required that to establish a real chance it is necessary to look at the totality of circumstances.[16] As such I turn my mind to considering the cumulative impact upon the applicant’s profile in relation to Refugee Convention grounds. In particular, as someone who is a failed asylum seeker with Western cultural traits and had participated in the Green Movement as well as having a tattoo and being an atheist. Even were the circumstances such, albeit unlikely, that all of these issues may become apparent to a potential persecutor I find that the chance of serious harm faced by the visa applicant is remote when the claims are considered cumulatively. As such I do not find that the applicant’s cumulative profile will lead to the applicant facing a real chance of serious harm in the reasonably foreseeable future based upon Convention grounds were he to return to Iran.
[16] Unreported, Federal Court of Australia, Jenkinson, Spender and Lee JJ, 12 August 1994 at [17]
Similarly in considering complementary protection I find that the risk faced by the visa applicant to be remote even when considered cumulatively as they do not amount to increasing the risk profile above that of remote. As such I find that the applicant’s profile would not lead to the applicant facing a real risk of significant harm as a necessary and foreseeable consequence of returning to Iran.
Additional considerations
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.
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. There are none and as such I do not give any weight to this consideration.
I now turn my mind to consider whether there are provisions in the Act which prevent the applicant from making a valid application for any visa without the Minister personally intervening. In this applicant’s case these are s.46A and s.48A. When exercising these provisions the applicant will not be able to make any further lawful applications nor be issued any further visas other than those prescribed or without Ministerial intervention and therefore, he may be detained.
Whilst detained the applicant has the option of returning to Iran. If he chooses not to involuntary return becomes a possibility. The fact that the Iranian regime does not accept involuntary returns is a matter at the forefront of my mind. The question before the Tribunal is whether affirming the delegate’s decision would lead to indefinite detention due to the Iranian regime’s refusal to accept involuntary returnees. 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.
There are no other matters that I deem relevant to consider.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision 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.

[2017] AATA 2968

23 November 2017

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