1711046 (Refugee)

[2020] AATA 822

1711046 (Refugee) [2020] AATA 822 (27 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711046

COUNTRY OF REFERENCE:                   Iran

MEMBER:Nicole Burns

DATE:27 March 2020

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 27 March 2020 at 12:23pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – ground for cancellation – incorrect information in visa application – claimed adverse profile and fear of harm – imputed political opinion – perceived support to anti-regime activities – voluntary return to Iran for 10 months – no apparent issue or impediment – voluntarily engaged with the Iranian Embassy – mental health condition – schizophrenia – ability to make rational risk-adverse decisions – credible witness – requisite level of satisfaction not attained – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), Schedule 2

CASES
Zhao v MIMA [2000] FCA 1235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that they concluded that the applicant had provided incorrect answers in his protection visa application in breach of s.101 of the Act. 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 10 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], his sister. 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 set aside.

6. The Tribunal notes the representative had indicated the applicant’s doctor, [Dr B], [Clinic 1], was willing to give evidence at the Tribunal hearing. However after hearing the oral evidence of the applicant and his sister, and taking into account the medical reports provided by [Dr B] (and other medical professionals), the Tribunal was satisfied as to the applicant’s medical history, diagnosis and current presentation and treatment, and did not consider it necessary to take oral evidence from [Dr B].

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of 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. On the Departmental file is a copy of a Notice of Intention to Consider Cancellation (NOICC) dated 27 February 2017 which advised the applicant that his visa may be cancelled under s.109 because of concerns that he did not comply with s.101(b) (visa applications to be correct) of the Act. He was advised to respond in writing. The applicant provided a statutory declaration dated 21 March 2017 in response, a written submission from his representative dated 20 March 2017 and supporting documents.

10. 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.

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

11. 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 (visa applications to be correct) as follows.

    Section 101(b) – visa applications to be correct

12. The non-compliance identified and particularised in the s.107 notice in relation to s.101(b) was that the applicant had provided incorrect information in relation to his protection visa application, lodged on 4 July 2013.

13. The notice recounts information the applicant provided in answer to a number of questions in his protection visa application and contained in a statutory declaration dated 24 October 2011 which set out his protection claims. In that statutory declaration the applicant stated, among other things, that he fears the authorities in Iran due to his brother-in-law’s anti-government activities. Based on these claims the applicant was granted a protection visa on 15 July 2013.

14. However subsequently, as set out in the NOICC, information[1] before the Department showed that the applicant had returned to Iran for around 10 months from April 2014 to February 2015. Because the applicant had returned to Iran only nine months after his protection visa was granted, to a country where he claimed to be wanted by the Iranian authorities for anti-government activity, and stayed there for a significant period of time without apparent ‘issue or impediment’, the delegate concluded that the applicant had provided incorrect information in his protection visa application about his adverse profile. The delegate also noted that the applicant voluntarily engaged with the Iranian authorities (at the Iranian Embassy in Canberra) in order to obtain an Iranian passport in his real identity prior to returning to Iran, which further casts doubt on his claimed fears at the protection visa application stage.

    [1] That is, outgoing and incoming passenger cards, exit and entry stamps on the applicant’s Iranian passport, and Iran Air boarding stubs.

15. The delegate stated that the applicant’s protection visa was granted on the basis that Australia owed him protection obligations and that he has consistently maintained he was wanted by the Iranian authorities for anti-government activity and would not be safe anywhere in Iran as the Iranian intelligence agencies will locate and harm him. However he voluntarily engaged with the Iranian authorities, and returned for a significant period of time, without issue.

    Response to the NOICC

16. In his statutory declaration provided in response to the NOICC, the applicant acknowledged that he returned to Iran for around 10 months in April 2014, but disputed that this meant he had provided incorrect information in his protection visa application about his past experiences in Iran and future fears. He states that although he was still afraid, he returned because he wanted to seek treatment in Iran for health issues he had been experiencing in Australia. He had sought treatment in Australia but was not improving and there were voices in his head telling him to return to Iran. In Iran he spent a few days in Tehran with a friend before returning to his home area of Ahwaz, to his father’s house. There he sought medical treatment and was hospitalised several times. He was diagnosed with depression, bipolar and schizophrenia however it was only after he returned to Australia that he was properly diagnosed with schizophrenia. In Iran the applicant rarely went out, staying at his father’s house or hospitalised. His condition worsened, in particular his paranoid delusions, and he believed he was under satellite surveillance. He was incapable of making a decision and his father purchased a ticket for him to return to Australia. He attempted suicide the second day after he arrived back in Australia and was hospitalised several weeks before spending six weeks at a place for specific mental health treatment. Since then the applicant has been under treatment of several doctors and clinics and is able to control the worst of his symptoms with medication. The applicant stated that at the time he went to Iran he was experiencing ‘extreme mental illness’ and decided to go by himself as he was not in control of his thoughts.

17. The representative expanded upon these matters in his written submission provided to the Department in response to the NOICC, arguing in summary that there was no non-compliance and that the applicant’s decision to return has to be considered in light of his serious mental health condition at the time, which impacted his ability to make decision and weigh risks. These points were reiterated in the representative’s submission to the Tribunal, summarised in more detail below (elsewhere).

18. Material provided by the applicant to the Department in response to the s.107 notice included medical reports and letters from his treating psychiatrist, physicians and clinicians and statutory declarations[2] from two friends.

    [2] Dated 18 March 2017.

19. On 17 May 2017 the delegate decided to cancel the applicant’s visa. In the decision record, the delegate noted the matters set out in the s.107 notice and assessed that the applicant did not comply with s.101(b) of the Act. The decision records that the delegate considered the applicant’s response to the s.107 notice but did not consider it credible. The delegate found the applicant did not and does not hold an adverse profile (in Iran) as claimed in the protection visa application.

20. Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled. The delegate recorded that, having weighed all the relevant factors, she was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

    Review of cancellation decision

21. On review, the applicant provided to the Tribunal copies of medical documents already provided to the Department in response to the NOICC; further medical documents;[3] a number of translated medical documents relating to his treatment in Iran in 2014/2015; and a letter from a family friend. His representative provided a written submission and a supplementary submission setting out the applicant’s background, addressing the allegations of non-compliance, and the discretionary factors (if relevant) in the applicant’s case.

    [3] Including a letter from [Dr B], [Clinic 1], dated [January] 2020 and a letter, Psychiatry Registrar and Consultant Psychiatrist, [Clinic 2], dated [January] 2020.

22. The representative submits that the applicant’s decision to obtain an (Iranian) passport and his return to Iran without incident in 2014–2015 does not demonstrate that he did not hold the adverse profile claimed in his protection visa application. He made the following key points in his response to the NOICC and written submission (and at hearing) to the Tribunal (in summary):

    a.The applicant’s decision to return to Iran needs to be considered in light of his significant mental health condition at the time; that he returned despite his fear of persecution (and adverse profile) because of his deteriorating mental health impacting his decision-making capabilities; and such actions were the result of his undiagnosed and untreated schizophrenia: an illness that affects and disrupts the functioning of the brain. Reference is made to the medical definition of schizophrenia, its symptoms (including psychosis, which can include delusions, hallucinations and disordered behaviour) and the question of capacity to make decisions as a legal concept.

    b.Due to the applicant’s severe mental health condition he lacked the requisite capacity to undertake and make informed decisions and fully understand the associated risks and consequences of his decision to return, and to apply for an Iranian passport.

    c.It does not follow that the applicant provided incorrect information in his protection visa application because he did not experience persecution during his time in Iran in 2014/15. Referring to other Tribunal cases and country information, it is submitted that the risk upon return depends on the visibility of an individual online and offline, and it is not possible to say they will not be at risk because often the authorities act arbitrarily.

    d.In Iran the applicant did not go about day-to-day life. There is a significant difference between returning temporarily living essentially in hiding, and living in Iran permanently.

    e.With respect to the applicant’s entry and exit on return to Iran, country information is referenced including a 2010 article by the Christian Science monitor which reported that while several high profile journalists and human rights activists have been detained at the airport, a surprisingly large number believed to be on government watch lists have slipped through, thanks to bureaucratic delays, among other things. As well, an April 2017 report by GAN Business Anti-corruption portal is cited, which notes the high risk of corruption in Iran’s custom administration to support the contention that it is possible the applicant was able to pass through the airport without impediment. Reports of other people with adverse profiles doing so are referenced.

    f.The applicant is not the subject of an ongoing court case because he fled Iran before it reached that stage, or an arrest warrant, or any such official document likely to have his name on it at border security; and his lack of presence on a blacklist does not indicate there is no change of persecution if returned to Iran permanently. It is implausible to expect airport security to have knowledge of every Iranian citizen suspected of some type of offence by intelligence services.

    g.Even if individuals pass through the airport, it does not mean they will not be arrested, detained or prosecuted later, noting this has occurred on many occasions (examples were given).

23. At hearing, the Tribunal discussed the relevant contents of the NOICC with the applicant. He acknowledged that he returned to Iran in 2014/2015 but disputed that there was non-compliance in the way particularised in the NOICC. He said at the time he was very unwell, hearing voices to kill himself or go back to Iran. He had become mentally unwell in Australia – starting from when he was detained – and treatment he had pursued was not working, because most of the doctors he saw diagnosed him with stress and anxiety, not schizophrenia (which he was later diagnosed with, after his return from Iran). He believed at the time he had an infection in his head and would have committed suicide if he stayed in Australia. He thought he may be able to be treated in Iran, genuinely believing he had a physical infection, whereas the doctors in Australia considered his afflictions were to do with his mental health issues. He applied for an Iranian passport through the Iranian Embassy in Canberra online, which was issued in [2014]. He did not tell anyone of his plans, in either Australia or Iran. He said he was worried about returning to Iran, but had lost his ability to make decisions, wanting to commit suicide, and fearing he would if he had stayed (in Australia).

24. The applicant bought his ticket to Iran with money he had saved from Centrelink benefits. He stayed with a friend for a few days in Tehran after he arrived then flew to Ahvaz where his father and stepmother live. His father was upset that he had returned, but helped him find doctors to treat him. The applicant underwent a number of tests, was admitted to hospital two or three times but no infection or physical ailments were detected: the doctors in Iran concluded his issues were related to his mental health. The applicant noted that he had not told any of the doctors about the voices in his head, afraid if he did they would not have investigated the brain infection he believed he had. His mental health deteriorated further and in the last few months in Iran he started having delusions, thinking he was being pursued by satellite and that people were talking about him on Instagram. The applicant’s father, after speaking to his siblings in Australia, bought a ticket for the applicant to return and obtain treatment here. The day after he arrived back he took an overdose and was hospitalised for over a month. During that time the doctors started giving him different medicine to see what might work. Since then he has been admitted to hospital twice, including when his visa was cancelled, due to stress and a worsening of his symptoms. In January 2020 he was admitted to ICU after an overdose but noted that this was accidental: he was stressed, but did not intend to kill himself.

25. After being correctly diagnosed with schizophrenia on his return to Australia (from Iran) the applicant said he is able to manage his symptoms well, most of the time. He takes [Medication 1] (an antipsychotic) and other medicines and is treated by a number of specialists, including a nurse once a fortnight, a psychologist once a month and a psychiatrist once every three months. He lives with his brother and receives Centrelink payments, finding it difficult to work. His [siblings] and their children live in Melbourne.

26. In Iran during 2014/2015, the applicant said apart from his time in hospital and/or seeking medical treatment he did very little because his father would not let him leave the house, drive the car or even answer the phone or door. The applicant was asked why he thinks the authorities paid him no attention during his time, given his claims at the protection visa application stage to be of adverse interest to them after they discovered (via the postal services) he was trying to smuggle out of the country a USB stick containing anti-regime material. He said he does not know, considers he was lucky, and speculated that maybe his father protected him (he did not elaborate). He said he remains fearful if he returned to Iran now there may be an open case against him, noting the authorities (intelligence agents, specifically) visited his apartment he lived in by himself in Ahvaz as he was departing the country and found the hard drive where the materials contained on the USB had been stored (which belonged to his brother-in-law). The applicant’s sister told the Tribunal she thinks the hard drive was left by her ex-husband ([Mr C]), who was a journalist in Iran and who had to flee earlier for speaking out against the government.

27. Both the applicant and his sister said the situation has worsened in Iran, noting thousands of demonstrators who have been imprisoned (and 15 killed) following protests about the rising costs of petrol, around three months before the hearing.

    Findings on non-compliance

28. The Tribunal has considered the information contained in the NOICC, the applicant’s and his representative’s response to the notice, the applicant’s and his sister’s oral evidence to the Tribunal, the medical evidence before the Tribunal, the written submissions before the Tribunal, and other relevant evidence before it to determine whether the grounds for cancelling the visa are made out. In doing so, the key question to consider is whether there is sufficient evidence to reach a real state of satisfaction that incorrect information was provided. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context. However where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal). In Zhao v MIMA (Zhao), the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show because why it should not … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[4]

    [4] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

1. While that case was concerned with cancellation under s.116, the Court’s comments are equally applicable to s.109 cancellation, as in this case.

2. As mentioned, the NOICC records that the delegate concluded that the applicant provided incorrect information about his adverse profile in Iran (including, allegedly, being wanted by the Iranian authorities) based on the following actions:

   a.His return to Iran for 10 months in 2014/2015, nine months after his protection visa was granted, on a passport in his own identity, with no apparent issue or impediment.

   b.Obtaining an Iranian passport from the Iranian Embassy, Canberra (who would alert the authorities in Iran) prior to his return.

3. With respect to a) it is not in dispute that the applicant returned to Iran in 2014/2015 for around 10 months on an Iranian passport in his own identity. He did not experience any problems whilst there, including entering and exiting Iran via the Imam Khomeini International Airport, Tehran. His decision to return and lack of interest by the authorities whilst there does raise a question about his claims at the protection visa application stage to be at risk of persecution in Iran from the authorities on imputed political opinion grounds: particularly his claims that the intelligence services were interested in him (and his family members), and had raided his apartment around the time he left Iran, purportedly discovering anti-government material on a hard drive. As well, as highlighted by the delegate in the cancellation decision record, his claims included fears of being arrested, detained and harmed by the Iranian authorities due to his family’s involvement uncovering government corruption and other practices.

4. However the applicant’s return to Iran does not, in the Tribunal’s view, necessarily mean his claims at the protection visa application stage to have experienced problems in Iran from the authorities and his related future fears were incorrect. It is plausible that the applicant could be in Iran for 10 months and go unnoticed, particularly if he kept a low profile, including not working and spending most of his time at his father’s home in Ahvaz barely engaging with the outside world, or hospitalised, as submitted. Although the applicant’s protection claims clearly related to fearing serious harm from the Iranian authorities (including the intelligence agencies), the Tribunal notes they are, nonetheless, subjective fears. The applicant did not claim that he had fled Iran or that he faced being arrested at the airport if he returned there because of outstanding charges or warrants against him. Although the delegate notes in the NOICC and decision record that the applicant had consistently maintained he was ‘wanted’ by the Iranian authorities, the applicant does not state specifically that he was wanted in his statutory declaration dated 24 October 2011 provided in support of his protection visa application (which is reproduced in the NOICC). He clearly stated (among other things) that his home (in [Location 1]) was raided by intelligence agents, according to advice from his neighbour on his way to Tehran (to leave the country); that they (Iran intelligence) found a hard drive and will harm him; and that he believes he would face a real chance of being detained and seriously harmed by the Iranian authorities, who will not protect him; and he will not be safe anywhere because intelligence will find him: not that he was ‘wanted’ per se.

5. The Tribunal found the applicant a credible witness at hearing, and combined with supporting medical documents that have been provided, it accepts he returned to Iran in 2014 to try and obtain medical treatment, and accepts that he kept a low profile whilst there, including periods of hospitalisation. The Tribunal also accepts that circumstances can change, and the fact that the applicant was not of interest to the intelligence agencies during his temporary visit does not necessarily mean he was not fearful of those actors at the time he made his protection visa application or that his claims of being of adverse interest to the authorities in the past as set out in his visa application (and statutory declaration) were untrue. Although he returned less than a year after his protection visa was granted, almost three years had passed since he allegedly was of interest to the intelligence agencies in July 2011 to when he returned to Iran in April 2014.

6. Furthermore, the fact that nothing happened to him during his period in Iran, including when entering and exiting the international airport in Tehran, may have been due to a number of reasons including, for example, changed priorities of the intelligence agencies that have finite resources and competing priorities.

7. The Tribunal notes that it appears somewhat illogical for the applicant to return to a country where he claimed to have been of adverse interest of the intelligence agencies for perceived support to anti-regime activities, and feared serious harm from the authorities in the future as a result. Nonetheless, his decision to return occurred in the context of the particularly serious mental health issues he was facing at the time, which significantly impacted his ability to make rational risk-adverse decisions. At hearing the applicant said he believed his brain was infected and he had to return, and he was hearing voices telling him to return: in hindsight he acknowledged he was not acting rationally and his decision-making was comprised by his paranoid schizophrenia, undiagnosed (and untreated) at the time. He told no one of his decision to return, including his siblings in Australia, his doctor or his father in Iran.  His sister confirmed that was the case at hearing, as did his doctor in her letters provided.

8. Medical evidence has been provided to the Tribunal from a variety of mental health professionals who have worked with the applicant over the years in Australia who attest to the applicant’s condition at the time, notably from consultant psychiatrists [Dr D] and [Dr E] who opined that the applicant was suffering from untreated schizophrenia when he made the decision to return to Iran in 2014. In their recent letter[5] [Dr F], psychiatric registrar, and [Dr G], from [Clinic 2], stated among other things that the nature of the applicant’s condition is chronic, and is mainly characterised by psychotic symptoms in the form of persecutory and grandiose delusional beliefs and affective symptoms. They stated that the applicant was diagnosed after taking pills with intent to die (after his return from Iran in February 2015) in the context of beliefs he was being surveyed on Instagram by intelligence organisations, and delusions – for example being nominated as the coach for the Iranian soccer team. They also state that during his index admission to psychiatric service, the applicant reported that he had become emotionally involved with an Iranian [woman] and has travelled to Iran to meet her. It is clear from this evidence that the applicant was very unwell at the time with untreated and undiagnosed paranoid schizophrenia, and as result his executive decision-making was compromised. Taking into account such considerations, his decision to return (and obtain an Iranian passport) in such a context does not cause the Tribunal to doubt his protection claims at the protection visa application stage to such an extent as to be satisfied he provided incorrect information about his claims and fears.

   [5] Dated [January] 2020.

9. In her decision to cancel the visa, the delegate agreed (with the representative’s submission) that little weight should be placed upon the applicant’s subjective decision to return due to his mental health issues. However the delegated noted the fact that objectively nothing happened to the applicant in Iran casts doubt about his claimed adverse profile. The Tribunal agrees that this raises questions about his adverse profile and related fears, but for the reasons above (and below), not to the requisite level to be satisfied that he provided incorrect information in his protection visa application, as per Zhao. In reaching this conclusion, the Tribunal has also taken into account the following considerations.

10. At hearing, the applicant recounted his experiences in Iran that led to his departure from his country: in particular after Iranian intelligence agents raided his home and discovered evidence that implicated him in anti-government activities. His oral evidence was reasonably detailed, straightforward and generally consistent with his claims before the Department at the protection visa application stage. It was also corroborated by his sister’s oral evidence. Her ex-husband’s anti-government activities as a journalist in Iran had led to the problems the applicant (and his other siblings and relatives) encountered from the Iranian authorities, causing them to flee the country.

11. Additionally, in this case there is probative evidence that supports the applicant’s protection claims contained on the Department’s file (regarding the applicant’s protection visa application), which the delegate at the time gave significant weight to in ultimately accepting the applicant’s core claims. Specifically, email correspondence from [Professor H], [details deleted], [Country 1] (in October 2011) confirming that the applicant’s brother-in-law ([Mr C]) provided him with information about the Iranian Revolutionary Guard Corps (IRGC) and other issues related to Iran. Further, at the POE interview, the delegate noted that they found the applicant credible.

12. For these reasons the Tribunal is not satisfied that the grounds for cancellation are made out in this instance if relying solely on the basis of the alleged non-compliance, being his return to Iran, as set out in (a) above.

13. The Tribunal has gone on to consider the other basis upon which the delegate reached the conclusion that the applicant had provided incorrect information about his adverse profile in Iran: obtaining an Iranian passport from the Iranian Embassy, Canberra (who would alert the authorities in Iran) prior to his return: (b).

14. The delegate noted in their decision record that such actions indicate that the applicant engaged directly with the Iranian authorities prior to travelling to Iran in his real identity, and that this would have alerted the Iranian authorities of his intention to travel in the near future.

15. The representative addressed this issue in his written submission in response to the NOICC and to the Tribunal, arguing that the along with the applicant’s deteriorating mental health and mental capacity, his minimal contact with the Embassy (via internet/phone/post) is not conclusive evidence that he provided incorrect information in his protection visa application. Further, given bureaucratic delays, corruption and the nature of the Iranian authorities to act in an arbitrary manner – even if the authorities were alerted to the applicant’s intention to return – this does not necessarily mean his entry, exit or stay would have been impeded due to his adverse profile, referring to country information about such matters. The representative submitted that contacting the Iranian Embassy is not equivalent to directly dealing with the Iranian intelligence services in Iran; that the applicant did not have physical contact; and as the Iranian Embassy in Australia has no legal jurisdiction they are unable to detain, torture or extradite Iranians. As such, it is unreasonable to conclude that due to minor interactions (with Iranian Embassy staff in Canberra), the applicant has no fear of authorities or an adverse profile, he submitted.

16. The Tribunal accepts the applicant obtained an Iranian passport via the Iranian Embassy in Australia, issued [in] 2014, shortly before he returned to Iran (and not long after the grant of his protection visa in late 2013). Whilst doing so does raise a question about his claimed fears of the authorities (and adverse profile) at the protection visa application stage, based on the same reasoning set out earlier with respect to the applicant’s return, ability to enter and exit Iran and stay there without issue, the Tribunal is not satisfied this alone is sufficiently probative evidence that he provided incorrect information at the visa application stage about his protection claims and fears of the Iranian authorities.

17. The Tribunal notes in the decision record the delegate refers to country information showing that political dissidents are tracked and monitored by Iranian intelligence agencies and face severe punishment and persecution. She reasoned that given the applicant voluntarily applied for an Iranian passport, returned on his own Iranian passport, remained on that passport in Iran for 10 months and departed on that passport without incident, this indicates he was ‘never wanted by the Iranian Authorities for anti-government activity and did not hold the adverse profile as claimed in his protection visa application’. Reference was also specifically made to country information indicating that whilst some dissidents are allowed into Iran, they are then monitored and arrested when trying to leave, noting the fact the applicant was able to leave supports her conclusion in this regard. However whilst the applicant’s return and lack of interest by the authorities whilst there (and obtaining an Iranian passport, earlier) does raise a question about his claimed profile at the protection visa application stage, it does not of itself mean he was never wanted (or of adverse interest to) the Iranian authorities as claimed, particularly given the passage of time and other considerations, including competing intelligence priorities, as discussed earlier.

18. Additionally, the Tribunal does not draw an adverse inference from the applicant’s decision to obtain an Iranian passport at that time given his impaired ability to make decisions and his overwhelming desire to return to Iran to seek treatment, despite his fears.

19. Having regard to all the circumstances and considerations in this case as set out above, the Tribunal is not satisfied as per the requirement in Zhao – that is, a real state of satisfaction reached on a consideration of the available material before it – that the applicant’s return to Iran for 10 months in 2014/2015 (obtaining an Iranian visa via the Iranian Embassy in Canberra beforehand) meant that he did not hold a well-founded fear of persecution as someone who had an adverse profile at the time of his protection visa application. For these reasons, including on the basis of the applicant’s coherent and consistent account of his protection claims, the Tribunal’s acceptance that his ability to make decisions at that time was compromised, the fact he laid low whilst in Iran in 2014/2015 and that he never claimed to be subject to an extant arrest warrant (for example), the Tribunal is not satisfied there is a sufficiently probative basis in this case to support a finding that the information the applicant provided about his protection claims at the visa application stage are incorrect.

    Other matters:-

20. The Tribunal notes the NOICC also records that the applicant provided incorrect information in answer to question 50 of his protection visa application when he stated he left Iran on

    
    

    [Date 1] July 2011, because his Iranian passport indicates that his last lawful departure from Iran was on [Date 2] July 2011. In response, the representative explained that the applicant was unsure of the exact date when he applied for his Iranian passport, was not in a sound mind to check, and gave the date of [Date 1] July 2011 to the Iranian Embassy in Canberra, which was incorrect. The representative has provided copies of the applicant’s boarding passes which confirm he left Iran on [Date 1] July 2011. The delegate accepted that was the case and that he did not provide incorrect information in his visa application in answer to question 50, as does the Tribunal.

    CONCLUSION

21. Taking into account the evidence before it, and for the reasons above, the Tribunal is not satisfied as per the requirement in Zhao – that is, a real state of satisfaction reached on a consideration of the available material before it – that the grounds for cancellation are made out in this instance.

22. For these reasons, 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.

23. 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

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

    Nicole Burns
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)    requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)    visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)    having regard to any prescribed circumstances;

    may cancel the visa.

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