1703730 (Refugee)

[2017] AATA 2818

1703730 (Refugee) [2017] AATA 2818 (23 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703730

COUNTRY OF REFERENCE:                  Iran

MEMBER:Denis Dragovic

DATE:23 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 23 November 2017 at 1:32pm

CATCHWORDS
Refugee – Cancellation – Protection visa – Iran – Providing incorrect information in application and to state authorities – Fears harm from the Basij and Sepah – Religion – Non-believer – Voluntary return to Iran – No non-compliance by the applicant

LEGISLATION
Migration Act 1958, ss 46, 97, 100, 101, 102, 103, 104, 105, 107, 109, 116, 128, 134B, 140, 375A

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 did not hold the profile of risk claimed at the time of her application. 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 28 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] from [a support organisation] and the applicant’s children along with [Mr B]. 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 her registered migration agent. The representative attended the Tribunal hearing.

5. The Department of Immigration and Border Protection (the Department) had placed upon its file a s.375A certificate. I found the certificate to be valid. A copy of the certificate was provided at the hearing. The representative did not challenge the integrity of the s.375A certificate. I chose to provide a summary of the material behind the certificate. The material was information specifically related to what instigated the Department’s investigation, namely, a dob-in letter that the applicant among others had travelled to Iran and obtained an Iranian passport.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s.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.

8. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

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

   Memory and [medical condition] of the applicant

10. The applicant is [an age]-year-old woman from Iran. Submissions received prior to the hearing describe the applicant as suffering [multiple major medical health conditions and disorders].

11. I accept that the applicant is a vulnerable person as defined in Guidelines on Vulnerable Persons and as such managed the hearing accordingly.[1]

    [1] Migration and Refugee Division, Administrative Appeals Tribunal, Guidelines on Vulnerable Persons

12. I also note the Guidelines on the Assessment of Credibility in which it states, ‘A person may not be able to remember all the details of his or her personal history or reconstruct the chronological order of particular events. A person may remember events that affected him or her most in emotional or physical terms but not the time sequence. Such confusion and forgetfulness do not necessarily imply that person is not telling the truth.’[2]

    [2] Migration and Refugee Division, Administrative Appeals Tribunal, Guidelines on the Assessment of Credibility, at [30]

13. The applicant presented at the hearing as lucid and able to answer questions in a forthright and responsive manner.

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

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

    Section 101: Visa applications to be correct

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

    (a)    all questions on it are answered, and

    (b)    no incorrect answers are given or provided

15. Section 101 refers to 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’.

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

    ·Iran is run by religious extremists and that she can’t say anything about her religious beliefs or lack of them.

    ·Her son, [Mr C] was involved in the Green Movement. He fled Iran and sought asylum.

    ·After [Mr C’s] departure from Iran the Basij and Sepah visited her house several times inquiring about his whereabouts. On one occasion they told her that they would handcuff her until he returns and that she would be taken to prison if he didn’t show up.

    ·This incident led her to fear being ‘whipped or even killed’. She chose to leave Iran within 24 hours of that threat.

    ·She fears being harmed for reasons of being [Mr C’s] mother and that they would harm her to reveal his whereabouts and secondly that she is a non-believer and that would lead her to being executed.

17. In reviewing the application the Department’s delegate found [in] April 2011 that the applicant did not meet the definition of a refugee. The applicant appealed to the Independent Merits Review.

18. The decision record of the Independent Merits Review includes the following additional information:

    ·Her son had attracted the attention of the authorities due to problems at his [work] as well as his involvement in the Green Movement.

    ·The applicant had bailed out her youngest [child] after having being caught protesting during the Green Movement.

    ·The Basij/Sepah had visited her house four or five times after her son had left Iran asking about him and her other [child] [Ms D].

    ·She thought [Ms D] had problems because of actions taken by [estranged relatives] and also because she had reported a [crime] to authorities who took no action.

    ·She said that the last time the authorities visited her home they told her she had 24 hours to produce [Mr C] or they would arrest her. She quickly left the house and the country.

    ·She said that she believes the authorities would come after her for not assisting in locating her son. She said that the range of penalties for the smallest thing is torturing up to shooting.

    ·She said that she does not consider herself a Muslim.

    ·She claimed that she left Iran because all of her children had been in trouble.

19. The Independent Merits Review reviewer found the applicant to be a refugee and subsequently she was granted a protection visa [in] November 2011.

20. Subsequently, circumstances arose such that her claims of fearing harm were she to return to Iran were questioned by the Department including that she was found to have returned to Iran for the majority of the period between [July] 2012 and [September] 2012 using an Iranian passport obtained through the Iranian Embassy in Canberra.

21. Based upon this information the Department sent a Notice of Intention to Consider Cancellation by email [in] November 2016.

22. The Notice of Intention to Consider Cancellation identified the following incorrect information:

    You claimed at Question 42 of Form 866C that you were of interest to the Iranian authorities as you are the mother of your son [Mr C], who participated in the Green Movement of 2009. You claimed that after [Mr C] left Iran the Basij and Sepah visited you on several occasions seeking information about [Mr C’s] whereabouts. You claimed that you left Iran on account of your fears that you would be imprisoned, whipped or killed by the Basij and the Sepah. It appears that this is incorrect as you voluntarily returned to Iran for a period of approximately two (2) months in 2012 and it appears that you faced no harm from the Iranian authorities when you entered Iran, whilst you remained in Iran and upon your departure from Iran.

    You claimed at Question 43 of Form 866C that you feared you would be harmed and possibly killed by the Iranian authorities if you were to return to Iran. It appears that this is incorrect as your voluntary return to Iran within only eight (8) months of the grant of your class XA subclass 866 Protection visa indicates that you did not genuinely fear returning.

    You claimed at Question 44 of Form 866C that you would be harmed by the Iranian government if you returned to Iran. It appears that this is incorrect as you returned to Iran for a period of approximately two (2) months in 2012 and it appears that you faced no harm from the Iranian authorities during your time in Iran. You voluntarily presented yourself to the Iranian authorities when you entered and exited Iran and it appears that you were not harmed by those authorities.

    You claimed at Question 45 of Form 866C that you feared you would be harmed if you returned to Iran because you failed to cooperate with the Basij and the Sepah. It appears that this is incorrect as you voluntarily presented yourself to the Iranian authorities when you entered and exited Iran, and remained in Iran for a period of approximately two (2) months apparently without being harmed by those authorities.

    You claimed at Question 46 of Form 866C that the Iranian authorities could not and would not protect you if you returned to Iran; rather, they would harm you and possibly execute you. It appears that this is incorrect as you voluntarily presented yourself to the Iranian authorities when you entered and exited Iran, and remained in Iran for a period of approximately two (2) months apparently without being harmed by those authorities.

23. No response was received by the Department. Subsequently, through communication with the Department and evidence provided at the Tribunal hearing, it has become apparent that a barred migration agent whose registration had been cancelled had misrepresented himself and taken money from the applicant to respond to the Department but had not. For this reason no response was received.

24. 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’,[3] it has not affected this decision as I have undertaken a de novo review.

    [3] PAM3 General visa cancellation powers (s.109, s.116, s.128, s.134B and s.140)

25. 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 [in] February 2017.

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

    a.Extensive medical history of the applicant from Australia and Iran

    b.Applicant’s [specialist] reports

    c.Reference letter from the [support organisation]

    d.Record of communication between the applicant and the Department regarding the Notice of Intention to Consider Cancellation

    e.Medical report in relation to the applicant’s [relative] in Iran

    f.Statutory declaration by the applicant, her children and [Mr A]

    g.Tax invoice issued by the barred migration agent

    h.Record of a complaint by the applicant to the office of Migration Agents Registration Authority (MARA) regarding the migration agent

    i.Notification of the Refugee Status Assessment outcome dated [in] April 2011

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

    a.Representative’s submission

    b.Two medical documents from a GP and specialist

28. At the Tribunal hearing the applicant explained that her motivation to return to Iran was two-fold: to see her [relative] who had been diagnosed with [a serious illness] and secondly to seek out treatment for pain which her Australian doctors could not assess. At the time she claims that she was suffering from [a medical condition], a fact attested to by her treating [specialist] who diagnosed her as having [several major medical conditions].

29. I accept that the applicant’s [relative] was diagnosed with [a serious illness] and at the time of her return the applicant believed it to be fatal.

30. After deciding to return to Iran the applicant claimed to have acquired a genuine Iranian passport through legitimate means from the embassy in Canberra. I accept that she entered and exited Iran using a genuine Iranian passport under her name accessed legitimately via the embassy.

31. The applicant described the process of passing through immigration as just passing through immigration without any questions being asked, no fingerprinting but only having her passport stamped. I accept that this occurred as described.

32. The applicant claims that she took measures to maintain a low profile while in Iran. These included staying in alternative accommodation other than at her husband’s place and wearing a chador at all times when outside. She claims that she told only her [relative] and husband of her return visit. I accept that the applicant acted in this way.

33. The applicant described the process of leaving through the airport. She was taken to the airport by her husband while she claimed that her fixer had made arrangements with someone in the airport to facilitate a smooth exit. She claims that an immigration officer sighted her passport, went to a backroom, asked to see her visa letter, to which she responded that it was in her luggage, and then he told her that she could go. I accept that this occurred without making a finding on whether the fixer’s involvement had any impact.

    Consideration

34. The question is whether the applicant provided incorrect information in the application form. In this case the incorrect information outlined in the s.109 notice concerned the risk profile the applicant claimed to hold among the government authorities. That the applicant approached the Iranian authorities to acquire a passport from the embassy in Canberra suggests that she did not have a fear of re-engaging with the Iranian authorities. I put to her that it appeared contradictory that she had engaged with the Iranian embassy and Iranian immigration but at the same time maintained her claim that she feared engaging with Iranian authorities. She responded that she was afraid of the Basij or Sepah but not the embassy or Iranian immigration as they didn’t know of her. She acknowledged that she knew that they were interconnected and knew that they shared information but added that she had only seen the Basij and Sepah arrest people and so she particularly feared them. From her responses it is apparent that the applicant is unaware that the security at airports is controlled by the Sepah.

35. Section 100 of the Act reads as follows: ‘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.’

36. As such, whether the applicant knew or did not know of the Sepah running security in the airport or the extent of the interconnection is not relevant. It is a question of fact that the Tribunal is required to consider, namely, whether within the Iranian security system a person could face harm from the local Basij such that it amounts to serious harm without being identified as a person of interest by the broader security apparatus and be flagged at the airport or the embassy.

37. Different sources of country information provide variations to the answer to this question:

    The Department of Foreign Affairs and Trade (DFAT) provided advice in May 2005, considered still valid in May 2009, that the Passport Office compiles a blacklist of names submitted to it from a variety of sources (in 1996 DFAT advised that the blacklist is used to inform the issuing of passports and as part of airport and border security checks ). Noting that it is difficult to provide an exhaustive list of agencies, DFAT advised that names could be provided by: individuals, the Intelligence Ministry, the Revolutionary Court or the Disciplinary Forces. The judiciary and interior ministries also provide information and it is said that other security forces, such as the Revolutionary Guards or the country’s irregular forces, have input into the lists.[4] 

    [4] Department of Immigration and Citizenship Country Information Service, Country Information Report No. 09/43 – CIS Request No. IRN 9702: Iranian air force lieutenant involved in activities against Islam (sourced from DFAT advice of 14 May 2009), 18 May 2009

    The advice from DFAT in 2005 provides some possible reasons for a person’s inclusion on a black list:

    A.A.2 The following could lead to a person being included on a black list:

    i) Serious crimes

    
    

    ii) Anti-regime political activities

    
    

    iii) Debts (through an application by the lender to a court)

    
    

    iv) Application by husband/senior male relative

    
    

    v) Application by wife where alimony has not been paid

    
    

    vi) Perception in the regime that the person will damage Iran's interests overseas.

    
    

    vii) Mistaken identity (there are many instances of confusion in this area due to the prevalence of some names in Iran).[5]

    DFAT advice dated 24 August 2010 in relation to low-profile protestors departing Iran states the following in relation to lists at the airport:

    Q.1. Provide any comment/information in relation to whether Iranian officials are in fact allowing or even encouraging low-profile protesters, (i.e. those who have taken part in anti-government protests but are not considered high profile activists or leaders of the protest), to travel abroad.

    R.1. Some low profile protesters have been prevented from leaving Iran, while others have been able to do so. It is likely that this depends on whether individuals are known by the authorities to have participated in protests. It appears immigration authorities check passport details against a list or lists when individuals attempt to leave the country. We do not know on what basis lists of those prevented from travelling are compiled, or whether some protesters are being permitted to travel despite having participated in protests. We are not aware of Iranian authorities encouraging low profile protesters to leave Iran. [6]

    Information was not located on the procedure for files being referred from the Basij to Etelaat. However the Global Security website states that, “along with the MOIS [Etelaat], the Islamic Revolution Guards Corps, the Basij Resistance Forces, the Ansar-i Hezbullah, and the Law Enforcement Forces work together for domestic security.”[7]  This suggests a procedure for transferring files between the Basij and Etelaat would exist.[8]

    [5] Department of Foreign Affairs and Trade, Iran: Exit procedures from Iranian airports, 21 June 2005, accessed 8 September 2011, CISNET Iran CX124084

    [6] Department of Foreign Affairs and Trade, IRAN: RRT CIS Request No. IRN 37128 (24 August 2010), accessed 8 September 2011, CISNET Iran CX248127

    [7] Ministry of Intelligence and Security (MOIS), Vezarat-e Ettela'at va Amniat-e Keshvar (VEVAK) (28 July 2011), Global Security website: Independent Protection Assessment Office, Country Advice Request, 9 September 2011

1. For cancellation cases the onus is upon the Minister and the Tribunal to establish the facts such as to reach a state of satisfaction. In this case that means a state of satisfaction that the applicant’s engagement with the embassy and her passing through immigration would have led to the information being shared with her feared persecutors, the Basij and Sepah, and subsequently to her arrest. Were this the case then the fact that she wasn’t arrested would indicate that she had provided incorrect information. However I find that the evidence does not support this view to such a degree such that I could reach a state of satisfaction.

2. It is not surprising that there is little publicly available information on the inner workings of Iran’s security forces. What is available and has been referenced above is patchy and in some places contradictory. On one reading of this information it is possible that the applicant’s name was forwarded to the airports for the reason of ‘anti-regime political activity’, assuming that the pursuers of her son, [Mr C] chose to undertake their task with a great deal of zeal. The information that even low-level protestors have been prevented from leaving could suggest that if [Mr C] was of interest to the authorities but had slipped through their nets his mother would then have become a person of interest. Such a reading would suggest that the applicant had provided incorrect information as she was not arrested at the airport.

3. Alternatively the country information could be interpreted to read that the black list of names maintained at the airport is for those who commit serious crimes or alternatively someone has to actively add a name to the list which makes the list itself an inconclusive indicator of intent and likelihood of facing harm. Furthermore, the Country Information Report No. 09/43 by the Department of Foreign Affairs and Trade does not include the Basij as an organisation that can input names to the black list. While the conclusion made by the Independent Protection Assessment Office, Country Advice Request, 9 September 2011, that a procedure for transferring files between the Basij and Etelaat would exist, is based upon a suggestion from Global Security that the various security forces ‘work together’. This is a very weak basis upon which to make such a conclusion. This reading of the information would suggest that even were the applicant to have faced harm by the Basij her name may not necessarily be on a blacklist.

4. As the information does not point to a clear conclusion I find that the applicant’s engagement with the embassy and her passing through immigration is not indicative of her having provided incorrect information.

5. Furthermore, I am satisfied that the applicant undertook measures so that her profile remained low including wearing a chador and living apart from her husband. That she was not caught under these circumstances is not indicative of her having provided incorrect information. 

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

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

   DECISION

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

   Denis Dragovic
   Senior Member

   
   

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

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

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

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

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

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

   97Interpretation

   In this Subdivision:

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

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

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

   98Completion of visa application

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

   99Information is answer

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

   100Incorrect answers

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

   101Visa applications to be correct

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

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   107Notice of incorrect applications

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

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

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

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

   (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

   (f)     requiring the holder:

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

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

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

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

   (b)     otherwise—14 days.

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

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

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

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

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