1711341 (Refugee)

1711341 (Refugee) [2020] AATA 357 (19 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711341
COUNTRY OF REFERENCE:                   Iran
MEMBER:Josephine Kelly
DATE:19 February 2020
PLACE OF DECISION:  Sydney
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 19 February 2020 at 11:31am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in protection visa application – fear of harm from police, Basij and government – engagement with authorities to obtain passport – voluntary return to home country twice – compelling and compassionate circumstances – daughters beaten by in-laws and miscarried, one attempted suicide – applicant’s physical and mental health and treatment – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 107, 109(1), 494B(4)(c)(i)
Migration Regulations 1994 (Cth), r 2.14, Schedule 8, condition 8559
CASE
Minister for Home Affairs v CSH18 [2019] FCAFC 80
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 visa was granted on 2 October 2012.The letter notifying the applicant of the cancellation decision was dated 18 May 2017.
The delegate cancelled the visa on the basis that the applicant had given incorrect answers to questions 42, 45, 46 and 47 in the Form 866 – Application for a Protection Visa (Class XA) visa. 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 15 September 2017 (the first hearing), 10 October 2017 (the second hearing) and 6 February 2020 (the third hearing) to give evidence and present arguments. The Tribunal also received oral and written evidence from her husband and one of their daughters. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by her registered migration agent.
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
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.
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 (the NOIC). Where a NOIC 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 case, there is a question as to whether the NOIC issued by the Minister’s delegate complied with s.107 based on the fact that the notice was sent to an address that the applicant claims she had left.
The information on the Department’s cancellation file show that it sent two NOIC to the applicant at two different addresses, the first was dated 16 December 2016, and the second was dated 14 February 2017. Both were returned to sender. After the first was returned inquiries were carried out. Both were sent by registered post. The applicant did not respond to the either notice. The notice of cancellation of the visa was sent to a different address following further inquiries made by departmental officers, including contacting one of the applicant’s daughters.
It is clear that the department was aware that the applicant had not received the notice of intention to cancel the visa.
The applicant, her husband and one of her daughters gave evidence to the effect that they had left the address to which the second NOIC was sent, that her husband had found a card on the ground outside their former address advising of a registered postal, and gone to the post office and been advised that it had been returned to sender.
The fact that the applicant did not receive an NOIC would only result in invalidity of the NOIC if it had not been sent to the last address for service provided to the Minister by the recipient for the purposes of receiving documents as required by s 494B(4)(c)(i) of the Act. The evidence does not persuade the Tribunal that the applicant had notified the department that she had moved from either residence or to the address to which the notification of cancellation was sent successfully, after the Department made various inquiries, including of one of the applicant’s daughters. The department had made inquiries seeking to obtain an address for the applicant after each of the NOICs was returned to sender.
That the applicant did not receive the NOIC and was therefore unable to respond, was not a denial of procedural fairness as claimed. Further, she has had the opportunity to have the decision reviewed and put her case before the Tribunal.
No other relevant issue was raised or was apparent in relation to the requirements of s 107.
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?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s 101(b) of the Act because the applicant’s answers to the following questions in her Protection visa application were incorrect:
Question 42
You claimed you were seeking protection in Australia so you did not have to go back to Iran
Questions 43, 45, 46 and 47 asked:
43: Why did you leave that country?
45. What do you fear may happen to you if you go back to that country?
46. Who do you think may harm/mistreat you if you go back?
47. Why do you think this will happen to you if you go back?
Your response to each question was: Please refer to all information provided in support of my request for Protection Obligation Determination including but not limited to my statutory declaration and my POD interview.
In your statutory declaration dated 15 February 2012 you claimed:
·     Your life was in danger from the Basij and Iranian police and intelligence.
·     You were scared the Basij and Iranian authorities would arrest you, beat you, torture you and possibly charge you with treason against Iran.
·     You feared you could be sexually abused by the Iranian authorities.
·     The Iranian authorities believe you are opposed to them because your daughter is considered anti-regime and anti-Islamic.
·     The Iranian authorities also believe you are opposed to them because you left Iran and you could be arrested, detained, beaten, tortured and charged for having left Iran and sought the protection of Australia.
In your entry interview dated 10 February 2012 you claimed:
·     One of your daughter’s had been ‘black listed’.
·     If you returned you will be harassed and will be interrogated about where your daughter has gone. You could also be tortured or placed in jail.
Based on the evidence above I consider this is incorrect because:
·     You engaged with Iranian authorities when you obtained your Iranian passport [in] 2015 without issue.
·     You have subsequently voluntarily returned to Iran on two occasions.
·     Your visits to Iran required you to engage with the Iranian authorities there on multiple occasions as you arrived and departed through official government checkpoints.
·     You were not arrested nor harmed.
·     You travelled to Iran under the identity you claim is known to the authorities and which has an adverse political profile.
·     Your ability to arrive and depart Iran through official checkpoints without harm is inconsistent with a person who has an adverse political profile.
·     Your ability to arrive and depart Iran through official checkpoints without harm is inconsistent with a person who holds an adverse profile, especially for reasons of treason.
You claimed in your application that you would suffer persecution if you returned to Iran, claiming you had an adverse profile with the Basij and Iranian police and intelligence.
As noted above, it would appear you have voluntarily returned to Iran on two occasions. Based on your departures from Australia [in] March 2015 and [March] 2016, your possession of an Iranian passport showing entry and exit stamps to Iran, and the information you provided on your passenger cards, it would appear you are free to travel to Iran without incurring any harm and therefore do not hold the adverse profile in Iran which you claimed to have.
The applicant acknowledged that she had travelled to Iran between [March] 2015 and [April] 2015 and between [March] 2016 and [April] 2016 and had been interviewed each time she returned by an officer of the Department and provided her Iranian passport. She claimed that she has completed outgoing and incoming passenger cards truthfully and honestly, and has never tried to hide her Iranian passport or her intention to travel and never provided false or misleading information to Department officers at the Australian border.
She provided a copy of an Australian Titre de Voyage issued [in] 2016 which showed her return to Australia [in] April 2016.
The applicant has five daughters. The oldest, [Child 1], is the child of the applicant’s first marriage and lives with her husband and child in a city that is a long way from Tehran. The other four daughters are the children of her current marriage. The oldest and youngest of those daughters travelled with the applicant and her husband to Australia by boat in December 2011. The other two remained in Iran. One of those daughters, [Child 2], was married with two children and arrived in Australia sometime after the applicant but before the applicant returned to Iran in 2015. The other daughter, [Child 3], was also married but had no children and remained in Iran. Her husband has three children from his first two marriages. They live with their mothers. At the third hearing, the applicant said that [Child 3] had gone to [Country] with her husband but is now separated from him.
The applicant claims that on both occasions she returned to Iran she had compelling reasons outside her control for taking the risk of travelling to Iran and believed that she was at risk of harm from Iranian authorities as a result of the activities of her two daughters, who are now in Australia, which also put her husband in direct danger. Both those daughters have Australian citizenship, as does the applicant’s husband. Her other daughter who is in Australia has applied for a visa.
In summary, the compelling reasons for the applicant’s return to Iran in 2015 and 2016 were the circumstances of her two daughters who lived there.
At the first hearing, the applicant said the following about the 2015 visit to Iran.
She was under much stress travelling to and from Iran and stayed in the lavatory on the plane. God had protected her and she was lucky and did not face the things she thought she would. [Child 3] had attempted suicide and was hospitalised. Her mother and sister in law were causing problems for [Child 3]. She had been beaten so badly she lost her child. She had knife scars all over her arms. [Child 1] was sick. She had been beaten by her mother-in-law, suffered a miscarriage and was in a terrible condition. Her father brought her to Tehran. Both daughters were in hospital when the applicant arrived in Iran in 2015. She visited [Child 1] in hospital on two consecutive days. [Child 1] then stayed with her father for another five days before returning home. The applicant spoke to [Child 1] by telephone while she was staying with her father. [Child 1] sent the applicant money to pay for the trip. Someone who travelled to Australia had brought it about six months before. [Child 1] secretly sent the applicant money once or twice a year to help her out because she had financial problems. [Child 1] had been doing that for six years. Her husband was well off.
Her daughter [Child 3] was worse and still in hospital when the applicant left Tehran but she had to return to Australia to pay the rent. Her family could not take care of errands. The Basij and authorities would be following the applicant. Her husband does not receive any benefits and she was concerned to stay more than one month. [Child 3] did not speak to the applicant for five or six months after she returned to Australia. [Child 3] was hospitalised for one and a half months. The applicant visited [Child 3] at the hospital every day but did not know the kind of hospital because she was too sick herself to notice. She was under so much stress. She feared would be arrested.
At the first hearing, the applicant said the following about the 2016 visit to Iran.
[Child 3] had attempted suicide. The applicant wanted to go sooner but could not find a ticket because of the holidays in Iran. She did not arrive in time to see [Child 3] in hospital. She only went because of [Child 3], and not because of the New Year celebration in [Iran]. She denied travelling to Iran in both 2015 and 2016 to spend New Year with her daughters.
The applicant slept in the home of [Child 3]’s neighbour, a lady who lives alone and whom she knew before coming to Australia. [Child 3] was at her home.
[Child 1] was also sick but the applicant did not see her and could not travel to the city where [Child 1] lived. They talked over the telephone, as they do when the applicant is in Australia.
During the second hearing the Tribunal asked the applicant about the Assessment made by the decision-maker in the reviewable decision and the considerations set out in Migration Regulation 2.14. She seemed confused by the questions but doing the best it can, the Tribunal understood the applicant to say that information she gave was correct, that she had to take her daughters from Iran when they suffered problems there, and had to return when [Child 3]’s life was at risk.
The applicant also said the following. [Child 3] attempted to commit suicide at the time of her second trip back in 2016. The applicant was always worried that she would be reported to the Basij when she was in Iran and did not stay more than a month. She did not visit the home of [Child 3] and her husband but stayed with an old family friend in the lane next to [Child 3]’s home and [Child 3] visited her there. She returned in 2015 because [Child 3] was refusing to take food. [Child 3] was suffering severe depression because no-one was in Iran.
A translation dated 4 September 2017 of an undated medical report form from an identified Tehran medical centre about the youngest daughter states that she was admitted to a clinic [in] February 2016 due to attempted suicide by drug poisoning, had undergone [treatment], and was discharged [later in] February 2016.
A further two page form was provided. It included Persian and English descriptions of the information that was to be filled in. The only information that was filled in and translated by the translator appeared in the top third of the first page of the document. It included the daughter’s name, the name of the attending doctor, “Type of Anesthesia: General Anesthesia” had been ticked, and the “Pre-operation Diagnosis” was “Poisoning with Drugs”. The translator wrote: “Table was omitted due to no information existing in it”. Two stamps were at the bottom of the first page of the document. No translation was provided. Boxes on the form were not ticked to identify agents used during the procedure such as oxygen and nitrous oxide. A graph to record readings of blood pressure, pulse, and temperature at the start and end of anesthesia was not filled in. The second page of the document provided for the recording of information such as the identification of nurses, the surgeon and assistant, blood pressure, respiration, pulse, weight, sex and age. No information was recorded.
A report dated [October 2017] from a general practitioner in Australia stated that the applicant has multiple health issues including “Anxiety depression (on Medication)”:
Her symptoms has increased since came back from oversea’s visiting her daughter who committed suicide as per family issues and sever depression, fortunately her daughter has recovered and visiting her mother have made a good effect on her.
The applicant provided two reports from different psychologists who have treated her. The first report was addressed to the Department and dated [May] 2017. The applicant had been receiving psychological treatment since [November] 2016. As of the date of the report she was also having pharmacological intervention. The diagnosis was multiple psychological disorders including depression and anxiety disorder “(Post Traumatic Stress Disorder)”. Symptoms included low concentration/attention. The psychologist noted the applicant’s physical health problems including [medical details omitted], which exacerbated her psychological symptoms.
The psychologist reported that the applicant told him the following:
· Her visa was cancelled on 18 May 2017 because she did not respond to a request to provide further information about her travel to Iran, which she had not received.
· She visited her daughters “as they were struggling. For instance, the oldest daughter, attempted suicide and was hospitalised which lead to the urgency to travel. Her youngest daughter on the other hand was a victim of domestic violence and was hospitalised due to the severity of the abuse and the subsequent miscarriage”. Both were reported to be suffering from mental health issues including depression and anxiety.
The psychologist concluded:
Despite, psychological and pharmacological intervention, (the applicant’s) progress has been limited, and she continues to display high levels of stress and anxiety in relation to her daughter’s overseas.
Your consideration of this case is greatly appreciated. If you would like further details or have any queries pertaining to this letter, please do not hesitate to contact me.
The second report was dated [November] 2019. The applicant had been under the psychologist’s care from [November] 2018. His examination and testing revealed:
[Details of medical condition deleted]. She also suffers from frequent flashbacks of her past experiences. She was witnessed of many people been killed in Iran-Iraq’s war. Her fears and worries about the future for her and her family, the unfamiliar environment and language barrier, in combination with the trauma of her past live have aggravated her mental health issues.
The psychologist recorded that the applicant complained of her short attention-span and impaired powers of concentration and memory.
The psychologist listed factors influencing the applicant’s current psychological state which included her very poor physical condition which he detailed in similar terms to the first psychologist, and stated that that she was unable to carry out the activities of daily living, the negative impact of insecurity, uncertainty, fear and worry about her and her family regarding their future life and work prospects, social isolation, mental exhaustion and loss of motivation due to depression. He stated that the applicant was “suffering partly due to the delays in deciding her protection visa application”. He proposed continuing treatment.

The applicant’s husband told the Tribunal that [Child 3] was depressed and hospitalised at the time the applicant returned to Iran the first time and the second time, had attempted suicide. She suffered depression after her parents and two sisters left Iran and she was alone there.
The Tribunal does not accept the submission that the applicant never claimed that she had an adverse profile with the Iranian authorities. Her claims specify the Basij, Iranian police and intelligence as the Iranian authorities she feared. While the applicant has maintained throughout the immigration process that her fear was due to the activities of one or more of her daughters rather than because of her own actions, she has claimed to have an adverse profile with Iranian authorities as a consequence of her daughters’ actions and treatment, in particular, by the Basij who searched her home and took a computer.
While the applicant did not make the point, the submission was made by her representative that the government in Iran had changed between 2011 when the family left Iran and March 2015 when the applicant first returned and the security measures were reduced. Mahmoud Ahmadinejad, a conservative, was the President from 2005 to 2013. He was succeeded by a moderate, Hassan Rouhani. The Department of Foreign Affairs and Trade Country Information Report on Iran dated 7 June 2018 supports that submission.[1] The applicant’s husband said that from the time President Ahmadinejad became president, people got into difficulties, including his family.
[1] At [2.3].
There are inconsistencies in the evidence, including whether [Child 3] attempted suicide in 2015 or 2016. The applicant’s psychological condition is relevant to her presentation at the three hearings. Facing the prospect of returning to Iran where only [Child 1] remains, is obviously very distressing for the applicant.
The applicant’s husband said that [Child 3] found it very hard being alone around the celebration of New Year in Iran. The evidence shows that there is a close relationship between the applicant, her husband and their four daughters.
The applicant’s genuine concern about [Child 3] in 2015 and 2016 is accepted. The psychological reports support that finding. The Tribunal infers that the applicant has found it very difficult being separated from [Child 3] whose life has not been easy. The applicant is not as close to [Child 1] because [Child 1] was brought up by her father and his family and the applicant did not see her from when [Child 1] was [little] until she was about [age]. Since [Child 1] married, she has lived a long way from Tehran. There is apparently no relationship between [Child 1] and the applicant’s other four daughters.
The answers the applicant gave in her visa application form and interview expressed her subjective fear at the beginning of 2012. She was granted her visa in 2012 but did not return until 2015. Three years had elapsed and a change of government had occurred in Iran before she returned. The security measures had been reduced under the Rouhani government. The applicant’s adverse profile was because of her daughters’ activities and not because of her activities.
Having returned in 2015 after a change to a more moderate government with reduced security measures in Iran without any adverse interest from any of the Iranian authorities she had claimed to fear, the applicant probably felt less concerned about returning in 2016.
The applicant did not try to hide the fact that she had an Iranian passport and that she was spending time in Iran. She answered questions honestly in her passenger cards and when interviewed by departmental officers. Her passport was issued in 2015 under the regime of President Rouhani, not that of President Ahmadinejad.
The representative pointed to condition 8559 which provides:
8559
[8559 inserted by SLI 2013, 106 with effect on and from 03/migration/2006-2016/06/2013 - LEGEND note]
[8559] The holder must not enter the country by reference to which:
(a) the holder; or
(b) for a member of the family unit of another holder — the other holder;
was found to be a person to whom Australia has protection obligations unless the Minister has approved the entry in writing.
The representative submitted that the Minister will give approval for a person to return to the country of reference if there are compelling and compassionate circumstances, as there were in this case, and that was the Minister did so even before condition 8559 came into effect. The applicant told him that she was unaware that she could get such permission.
In the circumstances set out above, the Tribunal is unable to find that the applicant gave incorrect answers in relation to her application for her visa.
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.
The Tribunal accepts that the regrettably lengthy and uncertain process following the receipt of the s 107 notice, the subsequent cancellation, and the legal process relating to the question of this Tribunal’s jurisdiction which was decided in Minister for Home Affairs v CSH18 [2019] FCAFC 80, has been very difficult for the applicant. The latter legal process caused a delay of almost two years between the second and third hearings.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Josephine Kelly
Senior Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:
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.

[2020] AATA 357

19 February 2020

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Immigration

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Statutory Interpretation

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