1711702 (Refugee)

1711702 (Refugee) [2019] AATA 6834 (30 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711702
COUNTRY OF REFERENCE:                   Iran
MEMBER:Michael Hawkins
DATE:30 October 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 30 October 2019 at 3:31pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – ground for cancellation – incorrect information in visa application – claimed adverse profile and fears of returning to Iran – involvement in the election campaign of Mosavi – adverse interest to the Basij – date of departure – method of departure – voluntary return to and residence in Iran – applied for passport from Iranian Embassy – recent conversion to Christianity – consideration of discretion – incorrect answers material to visa grant – deliberate and calculated attempt to enhance claim – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 46, 48A,101, 107, 109, 189, 198, 375A
Migration Regulations 1994 (Cth), r 2.41
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
MIAC v Khadgi (2010) 190 FCR 248
Saleem v MRT [2004] FCA 234
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570
Zhao v Minister for Immigration and Multicultural Affairs [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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Department) to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that she believed there had been non-compliance with s.101 of the Act, in that incorrect answers were given or provided in the applicant’s application form. 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 22 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses, a [Ms A] and her mother [Ms B].
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
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 of the Act in the following respects: A non-citizen must fill in or complete his or her application form in such a way that:
·all questions on it are answered; and
·no incorrect answers are given or provided.
The delegate concluded that the applicant had not complied with section 101(b) of the Act as he has provided incorrect answers to questions 30, 41, 42, 43, 44, 45, 46, 47, 48, 49, and 52 of the form 866C in his application for a visa.
Recourse to the s.107 Notice of Intention to Consider Cancellation (NOICC) at folio 18 on the Departmental file [number] has particularised information deemed to be in breach of s.101(b) of the Migration Act.
The NOICC indicates [that in] June 2010 the applicant arrived on Christmas Island as an unauthorised offshore maritime arrival claiming to be an Iranian citizen and seeking protection in Australia.
The NOICC notes that as part of the process for the subclass 866 Protection visa the applicant was interviewed at Christmas Island on 19 July 2010 and that during the interview the applicant provided the following information:
Family Name:
[Family name 1]
Given Name:
[Given name 1]
Do you have any passports, identity documents, military or other papers which can prove your identity?
Passport left in Tehran, Iran
Military paper left in Tehran, Iran
National ID card left in Tehran, Iran
National ID card (Local) left in Tehran, Iran – [number]
Educational certificate left in Tehran, Iran
Driver license left in Tehran, Iran
Why did you leave your country of nationality (country of residence)?
All my life I have been a law abiding person respecting the law. Twice I did not respect the law. The first is that I left my country unlawfully and the second is that I entered Australia unlawfully. I apologies for this. The main reason that I left my country is that I didn't have security (safety for my body). When I was the [Position 1] of [a] company, we were participating in the election campaign. After the election, me and my partner were arrested by the Basij. We were imprisoned for almost 20 days. They released us under a bond. There were lots of other people also arrested under different circumstances. At that time, my business partner's close friend asked us to do the [specified work]. The friend was a relative of presidential candidate Mousavi, his name [Mr C] (approx. [age] years old. They were supposed to pay but they did not. Not at all.......
When did you start arrangements for your travel to Australia?
[May] 2010
Whom made those arrangements for you?
A friend introduced me to a people smuggler. Friend is called [Mr D]. Smuggler is called [Mr E], in Tehran, Iran. An Algerian man called "[first name]"
What arrangements were made?
[Mr E] organised an Iranian passport in the false name and arrange my travel to [Country 1]. I departed from Iran [in] May 2010 and was given a false Iranian passport with my photograph in the name of [Alias 1]. I left Tehran by road and walked through the mountains with the aid of the smuggler's agent for seven hours to the [Country 1] border. I travelled to [Country 2] by plane remaining there for approximately 20 days. I had been provided with a phone number of an agent who organised my travel to [a part of Country 2] where I remained for 2 days prior to being driven to the shoreline and boarding a boat for Australia. The boat was intercepted by the Australian Navy and I was taken to Christmas Island.
When and how did you leave (country of origin) and who travelled with you?
Left Tehran by road alone to [Country 1] using false Iranian passport. [Iranian] Border, not through checkpoint, then by man through mountains into [Country 1].
Details of passport used for travel en route to Australia:
Where is it now?
Taken before boat boarding
Country of issue?
Iran
Passport number?
Not sure
Where was it issued?
Tehran, Iran
Was it genuine?
No
It had my photo but different name Name: '[Alias 1]'
Do you have any reasons for not wishing to return to your country of nationality (residence)?
I am pretty sure my life is in danger. The danger is because of Basij / Sepah and reason explained before. My name is on the blacklist. They will try to take my life. At all cost in order to stop me being in the way of their regime. My existence will affect their regime. I have not heard about my friend's whereabouts and also previously this has already happened to me. Even now if I find out I am safe I am not going and swap my home country with any country in the world. But I am pretty sure if I return home, my life will be in danger.
As part of the application process the applicant provided a Protection Obligations Determination (POD) application. The POD contained the following information:
Family name:
[Family name 1]
Given name:
[Given name 1]
Date of birth:
[Date 1]
Your Citizenship at birth:
Iranian
When did you leave your home country?
[May] 2010.
Airport or port of departure your home country?
[Country 1, City 1] Airport
How did you leave?
Illegally travelled with false passport
The NOICC notes that as part of the application process the applicant provided the following information as part of his Form 80 - Personal particulars for character assessment:
Family name
[Family name 1]
Given name
[Given name 1]
Date of birth
[Date 1]
What is your current citizenship?
IRAN
How was your citizen acquired?
BIRTH
When was your citizenship granted?
[Date 1]
Details of all passports ever issued to you
N/A
Details of any documents, social security card, or any alien registration number you currently use or have used in the past
Passport
National ID
Milit DIS
The Notice of Intention to Consider Cancellation visa
The NOICC notes that the applicant provided a Statutory Declaration signed on 7 August 2010. The applicant’s claims were summarised as follows:
·Ethnicity is Persian and religion is Shi'a Muslim.
·He left Iran due to his involvement in the political campaign for Mosavi during 2009 and fears for his safety
·On [date] June 2009 he and his business partner approached Mosavi's local electoral office to help with the campaign.
·On [date] June 2009 after the elections three people attended his office, blindfolded and handcuffed both he and his partner, walked him down the stairs into a car and drove for approximately 3-4 hours.
·When they stopped the car he and his partner were pulled out of the car, pushed to the ground and were beaten with batons. He was hit many times and he lost consciousness. When he awoke he realised he was in a cell. After the third day he was taken to another room where two people in uniform were waiting. There was a desk in the room with an open file and he saw that on one of the papers had the name of Kharizak detention centre. He was interrogated for 30 minutes and told that the authorities had photos of him hanging posters. They wanted to know what his involvement had been regarding Mosavi's campaign. They accused him of contacting the BBC television station and wanted knowledge as to the death of someone who had been killed in front of his office.
·After 17 days of being kept in the cell he was taken back to the interrogating room and told that he and his partner would be let go. They both had to sign a statement that they would not take further part in any demonstrations, not leave the city and not talk to the media.
·They drove him back to the police station of the area he lived and were driven home by the police.
·His office had been closed by the Basiji and although he had obtained permission to reopen it, the Basiji did not leave him alone, attending at the office at least weekly and asking questions.
·[In] February 2010 he was told by one of his employees that his partner had been arrested by the Basiji and taken away. He called his home and was told by his father that the Basij had gone to his home looking for him.
·He went to a friend in [Town 1] and remained there for 60 days.
·He contacted his partner's wife and she advised that his partner remained in prison.
·He fears that he will be caught by the Basiji if he returns to Iran.
·He fears harm from the Iranian authorities and the Basiji.
·He does not believe the authorities will protect him should return to Iran.
·He advised that in Iran he had enjoyed financial freedom due to his successful [business] and would not have left his business and family unless it was crucial that he do so.
Based on this information on 16 December 2010 the delegate determined that the applicant met the definition of a refugee and invited him to lodge an application for a subclass 866 Protection visa.
On 28 April 2011, the applicant lodged a Protection Visa application Form 866C. The applicant provided the following answers to the questions listed below:
Question 1 of the form asks: What is your full name?
The applicant wrote “[Name 1]”.
Question 28 of the form asks: Details of your current travel document:'
The applicant wrote “N/A”.
Question 30 of the form asks: Have you ever had, or used, any other passport or travel document?
The applicant provided the following information:
Type of document: Passport Document number:
Country of document: “Iran”
Name on passport: “[Alias 1]”
Where is it now? “Taken by Smuggler”
Question 41 of form, asks: I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries)
The applicant wrote “Iran”.
Question 42 of form asks: Why did you leave that country?
The applicant wrote “Please see attached statement of claims” made on 7 August 2010 in the form of a Statutory Declaration where the applicant claimed to have left Iran due to his involvement in the political campaign for Mosavi during 2009, and fears for his safety.
Question 43 of the form asks: What do you fear may happen to you if you go back to that country?
The applicant wrote “Please see attached statement of claims” made on 7 August 2010, in the form of Statutory Declaration. The applicant fears that he will be caught by the Basiji if he returns to Iran.
Question 44 of the form asks: Who do you think may harm/mistreat you if you go back?
The applicant wrote “Please see attached statement of claims” made on 7 August 2010 in the form of Statutory Declaration. The applicant fears harm from the Iranian authorities and the Basij.
Question 45 of the form asks: Why do you think this will happen to you if you go back?
The applicant wrote “Please see attached statement of claims” made on 7 August 2010 in the form of a Statutory Declaration. The applicant’s partner (business) was arrested again and taken away and they were looking for the applicant. The applicant fears he will end up being caught by the Basij as they did many others whom have now gone missing or been charged under the Iranian national security laws and risk being executed.
Question 46 of the form asks: Do you think the authorities of that country can and will protect you if you go back? If not, why not?
The applicant wrote “Please see attached statement of claims” made on 7 August 2010 in the form of a Statutory Declaration. The applicant stated that authorities will not protect him. The applicant fears that he will face persecution and effective state protection is not available to him.
Question 47 of the form asks: When did you leave your home country?
The applicant wrote “[June] 2010”.
Question 48 of the form asks: Airport or port on departure from your home country?
The applicant wrote “[Country 1 City 1] Airport”.
Question 49 of the form asks: How did you leave?
The applicant wrote “Illegally – used false passport”.
Question 52 of Part C of the form asks: Do you have your travel document with you now?
The visa holder stated “I travelled with a false passport and left my real passport in Iran. It is still valid”.
The NOICC notes that on 4 May 2011 on the basis of this information, as well as meeting all other relevant criteria the applicant was granted a Subclass 866 (Protection) visa.
The NOICC notes that following the grant of this visa, the applicant changed his name from [Name 1] to [the applicant] [in] August 2012. The change was undertaken through the Queensland registry office on 23 May 2012.
The NOICC notes that Departmental records indicate that since the grant of his Protection visa, the applicant has departed Australia [in] April 2013 using an Australian issued Titre De Voyage. The applicant returned to Australia [in] May 2013 on an [Airline 1 Flight].
The NOICC further notes that when the applicant departed Australia [in] April 2013 he indicated a 21 day visit to [Country 3] for a holiday on his outgoing passenger card.
The NOICC notes that on return to Australia a baggage search was conducted by Australian Customs and Border Protection (ACBP) service officers, and an Iranian passport was found. The passport was issued in the name of the applicant’s Iranian name, [Name 1] born [Date 1], issued [in] 2012, by the Iranian Embassy, Canberra. The passport was issued to the applicant less than two months before he officially changed his name to [the applicant], demonstrating that the applicant had no issue approaching the Iranian authorities in his real name, rather than in his new name.
The NOICC notes that on 19 May 2013, the applicant was questioned by the ACBP officers in reference to his itinerary where he advised the officers that he had travelled to [City 2 in Country 3] and [City 1 in Country 1] and denied travelling to Iran. On further questioning the applicant admitted to having travelled to, and stayed in, Tehran for the majority of his time outside of Australia. The applicant stated that his grandmother had ‘forced’ him to return to Iran to visit her as she was old and was concerned about him. The applicant later changed his response advising that he had travelled to Tehran to visit his grandfather and that his grandmother is deceased. The applicant’s Iranian passport contained entry and exit stamps from [Country 3] and Iran. Additionally, the Iranian passport states under the heading ‘Observations’ that the applicant’s last departure from [a Tehrani] Airport was [in] February 1389, equivalent [to] May 2010, in the Gregorian calendar.
The delegate considered that the applicant intentionally provided incorrect information to ACBP officers to conceal his travel to Iran, the country of his claimed protection.
The NOICC notes that the applicant claimed in his protection visa application that he had a well-founded fear of returning to Iran due to persecution from the Iranian government. Despite this, the applicant approached the Iranian Embassy, Canberra, to obtain an Iranian passport in [month] 2012, and voluntarily travelled to, entered, and remained in Iran without harm or impediment. The issue of an Iranian passport in the applicant’s genuine identity does not support the applicant’s claims that he had to leave Iran on a fraudulently obtained passport in the name of [Alias 1] to conceal his true identity, which was claimed to be of adverse interest to the Iranian authorities.
The NOICC notes that the applicant departed his country of origin, Iran, with a valid travel document in his true identity to claim protection of Australia. The applicant’s Iranian passport lists his last departure from [a Tehrani] Airport [in] May 2010, with his arrival at Christmas Island [in] June 2010.
The delegate noted that it was evident that the applicant departed Iran legally using his own passport issued by the Iranian authorities which demonstrates that the visa holder’s statement of having to depart Iran illegally on a fraudulent passport due to this alleged adverse political profile with the Iranian authorities is incorrect.

The NOICC notes that the visa holder’s Protection visa was granted on the basis that the visa holder satisfied the Minister that he engaged Australia's protection obligations under the Refugee Convention. The applicant claimed to have fled Iran on account of a genuine fear of persecution due to his involvement in the election campaign of Mr Mosavi. The applicant claimed he feared being caught by the Basij if he returned to Iran. The applicant’s fear of harm from the Iranian authorities and the Basij, which purportedly caused him to depart on a false Iranian passport to avoid detection from the authorities, was material to the grant of his protection visa application.
The NOICC notes that the delegate considered that the applicant has not complied with s.101(b) of the Act as he has provided incorrect answers to questions 30, 41 to 49 and 52 of the form 866C in his application for a visa. If the applicant has failed to fill in his application form in such a way that no incorrect answers are given or provided his visa may be cancelled.
The delegate considered that the applicant has provided incorrect answers in relation to the following information in his protection visa application as follows:
·That the visa holder left his Iranian passport in Tehran, Iran and departed Iran on a fraudulent passport, as the visa holder’s current Iranian passport states his last departure from [a Tehrani] Airport was on a valid Iranian passport in his own identity which he claimed was of adverse interest to the Iranian authorities and hence claimed falsely that he used another identity to avoid the Iranian authorities.
·That the visa holder left Iran to travel to Australia [in] June 2010, as his current Iranian passport shows his last departure from Iran [was] May 2010 from [a Tehrani] Airport.
·That the visa holder left Iran for [Country 1] and then [Country 2] to Australia, his last departure information in his current passport shows that the visa holder departed via [a Tehrani] Airport.
·That the visa holder’s passport used for travel on route to Australia was under the name of [Alias 1], that this passport was taken by the smuggler before boat boarding. The visa holder departed Iran on an Iranian passport in his own name.
·That the visa holder claimed that his life was in danger as he is on the blacklist of the Basij, and he fears the authorities will take his life. The visa holder voluntarily entered Iran without any issue or impediment to him and spent over four weeks in Iran after the grant of his protection visa which supports he was not of adverse interest to them at the time of his protection visa application.
The applicant submitted a Statutory Declaration signed on 7 August 2010, which contained the following information:
That the visa holder claimed that he was detained by the Basij as they had detained many others who have now gone missing, or have been charged under the Iranian national security laws and are at risk of being executed. The visa holder feared harm/mistreatment from the government or its agents. However, the visa holder voluntarily returned to Iran without any harm to himself and spent over four weeks in Iran.
The NOICC notes that by failing to comply with s.101 (b) of the Migration Act 1958 the applicant's subclass 866 Protection visa is liable for cancellation.
Response to NOICC
On 6 December 2016, email correspondence was received by the Department from [Mr F], migration agent to the applicant, in the form of a Form 956. The applicant then responded to the NOICC through his representative in a submission received by the Department in an email dated 8 December 2016.
In his response the applicant provided a submission and supporting documentation including the following:
·     Receipt of [Airline 2] to Melbourne for a wedding in March 2015;
·     Receipt of [Airline 3] from Melbourne returning from the wedding in March 2015;
·     Receipt of Accommodation for our Melbourne Holiday;
·     Receipt of [Airline 3] from Sydney for a holiday in August 2016;
·     Receipt of [Hotel 1] for my birthday in January 2015;
·     Receipt of [Cruise 1] booked for December 2017;
·     Receipt of [Cruise 2] booked for Easter;
·     Bank Statement x 4 for our Rental account;
·     Bank Statement for our [Country 4] Holiday of which we are saving;
·     Bank Statement for Christmas Cruise Holiday of which we are saving;
·     Bank Statement for Easter Cruise (Birthday Holiday) of which we are saving;
·     Character Reference from – [Ms A];
·     Character Reference from – [Mr G];
·     Character Reference from – [Mr H];
·     Character Reference from – [Ms B];
·     Lease agreements x 2;
·     Letters x 2 from treating Psychiatrist [Dr I];
The delegate further notes that on 8 December 2016, a further email was received from the applicant’s representative which attached a letter of correspondence dated 7 December 2016 (re-sent).
Departmental Decision to cancel the applicant’s visa under s.109 of the Act
The Departmental delegate proceeded to cancel the applicant's subclass 866 visa in a decision made on 26 May 2017.
Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the applicant in so far that the applicant failed to give correct information in his 866 visa application.
The delegate noted that in his response to the NOICC, the applicant provided conflicting information.
My assessment of the visa holder’s response and all the prescribed circumstances as set out in Migration Regulation 2.41 is as follows:
(a)       the correct information [reg. 2.41(a)]
Evidence before the Department confirms that the visa holder has provided incorrect information in his application for a Protection visa in reference to his claimed adverse profile and fear of persecution from the Iranian authorities due to his involvement with the election campaign in 2009, of Mr Mosavi in Iran.
The visa holder departed Iran in his own identity using his Iranian issued passport. This indicates that the visa holder did not need to conceal his true identity, which he claimed was of adverse interest to the Iranian authorities. Instead, he departed Iran using his true identity, without harm or impediment. This suggests that his protection claims are based upon a fabricated and incorrect adverse profile.
Furthermore, the visa holder would have voluntarily approached the Iranian authorities in Australia in order to apply for an Iranian passport which was granted to him in his name, thus alerting them to his presence in Australia and his possible intention to travel to Iran. The Iranian passport was issued to the visa holder on [date] 2012, by the Iranian Embassy, Canberra. Country information suggests that stringent security checks are undertaken at the passport application stage by the Iranian authorities, including confirmation that the applicant exited Iran in a genuinely issued passport in their name and the date of exit.
I note in the visa holder’s Notice response, he has not advised of any impediment or issue with the Iranian authorities upon return and that he had not attracted any adverse attention from them. This further confirms that his claims of being of adverse interest to them at time of his protection visa application are incorrect.
Additionally, the visa holder returned to Iran for a period of over four weeks without him being identified or detained by the Iranian authorities as he claimed in his protection visa application. The visa holder was able to enter and exit Iran without harm or impediment by the Iranian authorities. This indicates that he does not hold an adverse profile, nor is he at risk of harm or persecution by the Iranian authorities.
I find the correct information is the visa holder did not hold the claimed adverse profile with the Iranian authorities, and consequently not disputed bringing himself to the attention of the authorities without apparent issue. However, the visa holder has claimed in his correspondence to the Department that he returned to Iran only to visit his grandmother, this same grandmother who the visa holder had informed ACBP officers was deceased, and that he had returned to Iran to visit his grandfather. I also consider the inconsistencies with the information that the visa holder has provided raises concerns regarding the visa holder’s credibility. The correct information is therefore he is not of adverse interest to the Iranian authorities nor did he hold an adverse profile at time of his protection visa application.
I do not give this consideration any weight in the visa holder’s favour.
(b)       the content of the genuine document (if any)[reg. 2.41 (b)]
This consideration is not applicable to this case and therefore I give it no weight.
(c)       whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document [reg. 2.41(c)]
Had the correct information been provided that the visa holder is able to return to Iran without issue of persecution, it would have affected the grant of the visa. Therefore, the visa holder’s application for a class XA, Protection visa, would likely have been refused as he would not have met the requirement at criteria 866.221(2) which states:
Criteria 866.221(2)
(2) The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant;
Section 36 Protection visas - criteria provided for by this Act
(2)       A criterion for a protection visa is that the applicant for the visa is:
(a)       a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee;
Based on the evidence and findings before me, I consider that the visa holder’s claim to be of adverse interest to the Iranian authorities which amounted to persecution is not correct. I consider that his claims regarding his involvement in the 2009 Iranian election in support of Mr Mosavi, as submitted on his application for a Protection visa, was to improve his chances of obtaining a visa to remain in Australia.
I therefore give this consideration no weight in the visa holder’s favour.
(d)       the circumstances in which the non-compliance occurred [(reg. 2.41(d)]
The non-compliance under consideration occurred when the visa holder provided incorrect information, in particular to questions 30, 41 to 49 and 52 of the Form 866C, and in his Statutory Declaration dated 7 August 2010. The visa holder claimed to have been involved in the political campaign of Mr Mosavi in the 2009 Iranian election.
Had the visa holder provided the correct information in his application in reference to his true circumstances in Iran, that is, he was not of adverse interest and did not hold an adverse profile, it would have affected the decision to grant him a visa. Therefore I give this consideration no weight in the visa holder’s favour.
(e)       the present circumstances of the visa holder (reg.2.41(e))
The visa holder has resided in Australia since the grant of his Protection visa on 4 May 2011. [Mr F], migration agent to the visa holder, writes at paragraph seven of his letter that the visa holder “…is a self-employed [Occupation 1] in the Brisbane region, where he is well valued by his colleagues and peers alike that he is of good character and a good worker.” [Mr F] submitted a number of character references in support of the visa holder and for his continued stay in Australia.
[Mr F] also makes mention that the visa holder has been in a three year relationship with an Australian citizen, [Ms A]. [Mr F] writes that [Ms A] suffers from Bipolar Disorder, and that the visa holder has been a positive influence on her during the course of their relationship. [Mr F] writes at paragraph 10, that “Not only would [the applicant] (the visa holder) suffer significantly if he were to be prohibited to remain in Australia, but his partner would also suffer noticeable hardship.” In evidence, a letter dated 2 December 2016, from [Dr I], consultant Psychiatrist to [Ms A] writes “I believe it is inevitable [Ms A] will relapse and suffer a depressive phase of Bipolar Affective Disorder if her partner [the applicant] (the visa holder) is returned to Iran …” In a previous letter by [Dr I] dated 30 November 2016, he writes “There is absolutely no doubt and certainly in my notes through 2014, 2015 and 2016 reflect that [Ms A]’s health has substantially improved…This I attribute to the stability to the support she has in her relationship…”
While I accept the positive affect the visa holder has on his partner in reference to her health issues. However, should she decide to remain in Australia, [Ms A] is able to access health and community services to assist her with her continued health care. In further reference to the support from the visa holder, a letter of reference by [Ms A] was submitted to the Department, where she writes “…to separate us would be irrevocably destructive to me and to [the applicant]. I do not see a life without [the applicant] and would certainly get sick with worry about him in Iran.”
However, as the visa holder and his partner are likely to suffer some degree of hardship if the visa was cancelled, I give this consideration some weight in the visa holder’s favour
(f)        the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act [reg. 2.41(f)]
The visa holder has responded to the Notice of Intention to Consider Cancellation under s109, sent to him on 16 November 2016. As the visa holder has engaged with the cancellation consideration process I have given this some weight in the visa holder’s favour.
(g)       any other instances of non-compliance by the visa holder known to the Minister [reg. 2.41(g)]
There is no other instance of non-compliance by the visa holder, and I give this some weight in the visa holder’s favour
(h)       the time that has elapsed since the non-compliance [reg. 2.41(h)]
The non-compliance occurred on 29 April 2011, when the visa holder lodged a Protection Visa application Form 866C, and in his Statutory Declaration dated 7 August 2010.
In his application the visa holder claimed to be seeking protection from the Iranian authorities based on his adverse profile due to his involvement with the election campaign in Iran in 2009, and of his support of Mr Mosavi. Six years has elapsed since the visa holder’s non- compliance.
I do not consider this to be an extensive period of time and therefore give this minimal weight in the visa holder’s favour.
(j)        any breaches of the law since the non-compliance and the seriousness of those breaches [reg. 2.14(i)]
There is no information before the Department that would indicate further breaches of the Act by the visa holder since the non-compliance.
I give this consideration some weight in the visa holder’s favour.
(k)       any contribution made by the holder to the community [reg. 2.41(k)]
[Mr F], the visa holder’s migration agent, does not specifically address this issue through the attached documentation, however he does make mention that the visa holder is a self-employed [Occupation 1]. Other than this, there is no information before me to indicate whether the visa holder has made any contribution to the Australian community.
I consider engaging in employment to be a standard contribution to the Australian community and I give minimal weight to this consideration in the visa holder’s favour.
My assessment of the visa holder’s response includes the following other matters:
•          Whether there are persons in Australia whose visas would, or may, be cancelled consequently.
There are no consequential visa cancellations that would occur should the visa holder’s visa be cancelled. Therefore I do not give any weight to this consideration in the visa holder’s favour.
•          Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.
If the visa holder’s visa were cancelled, an International Treaties Obligations Assessment (ITOA) would be completed by a departmental officer before a decision was made to remove the visa holder to his country of origin. I therefore consider that a decision to cancel the visa holder’s visa would not necessarily cause him to be returned to his country of origin in breach of Australia’s non-refoulement obligations under the Refugees Convention. An ITOA would assess, among other things, whether the visa holder would be at risk of harm in his country of origin.’
Review Hearing
The Tribunal conducted a hearing on 22 August 2019. The applicant attended the hearing with his representative and solicitor [Mr J].
At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department to cancel his Protection visa under s.109 of the Migration Act. The Tribunal noted that a delegate of the Department had formed a view that the applicant had provided incorrect information in his application for protection. As a result of this the applicant was served with a Notice of Intention to Consider Cancellation of his visa and given an opportunity to comment on those grounds.
The Tribunal noted that the delegate of the Department had formed a view that the applicant had not complied with the requirements of paragraph 101(b) of the Migration Act, referring amongst other things to the answers the applicant had provided in his application for a Protection visa regarding his Protection visa claims. The Tribunal noted that based on all of the evidence before her, the delegate proceeded to find that the applicant had provided incorrect information in his Protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.
The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in his Protection visa application, the material on the Departmental cancellation file, material provided at review and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the s.107 Notice of Intention to Consider Cancellation, and, if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant's benefit.
The Tribunal noted that the applicant was granted a subclass 866 (Protection) visa on 4 May 2011. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision and suggested to the applicant that the Tribunal might take the applicant's claims for protection provided to the Department on 28 April 2011 as having been read. The applicant agreed.
s.375A Certificate
A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.375A of the Act. It states that disclosure of information held at folios 1 to 5 of the Department file would be contrary to the public interest because it contains information relating to Departmental methods and procedures.
A copy of the Certificate was provided to the applicant at the hearing.
The Tribunal has considered the material identified in the certificates and considers the certificate, in relation to folios 1 to 5 is valid.
The Tribunal discussed the contents of the five folios with the applicant, advising that they contained a record of his interview with the department and copies of his passport. The Tribunal explained that the contents had been put to him by the delegate at the time of issuing the NOICC and that he had the opportunity to, and had, responded to that information.

The Tribunal asked the applicant whether he had any comment to make in relation to the s.375A Notice. The applicant advised that it was satisfactory.
The applicant presented two witnesses to give evidence in support of his claims. The first witness was a [Ms A] (the applicant’s former partner) and the second witness was [Ms A]’s mother, [Ms B].
The Tribunal asked [Ms A] about her knowledge of the applicant’s conversion to Christianity. She replied that she was aware that the applicant started attending church four to six weeks after they had separated.
[Ms A] confirmed that she and the applicant had separated in January 2018.
The Tribunal asked [Ms A] about her own church attendance. She stated that she was a member of the [Church 1] congregation. She went on to add that she and the applicant had never attended church together. She also went on to add that she was surprised to learn that he started going to church and when asked why by the Tribunal, she replied that the applicant is not one to put himself out to try something new.
The Tribunal confirmed that [Ms A] was living alone and was not living with her mother, or with the applicant. [Ms A] confirmed that was the case. The Tribunal queried [Ms A] as to whether she could return to live with her mother in the event that the applicant was required to return to Iran. She replied that she could not return to live with her mother as her sister was living with her mother and added that she was estranged from her sister.
The Tribunal then took evidence from the second witness, being [Ms B].
[Ms B] stated that she was very fond of the applicant and considered him to be like a son. She confirmed that the applicant worked in a [specified] business with her daughter.
When asked about her knowledge of the applicant’s practice of Christianity, she replied that she knew nothing about his Christianity. She did, however, attest that he is a hardworking man and is not on the dole. She says that he does things for everyone.
She also indicated that he had introduced her to poker as a social outlet for which she was grateful.
She stated that the applicant is very responsive to people in need and cited an example of him being the first at the hospital after she had broken her [Body Part 1].
She commented that perhaps their affinity is based on the fact of her mother, and the applicant’s mother, both being Russian.
She also stated that the applicant had insisted on her living with them until she found her own place when she moved from [Australian City 4].
The first witness, [Ms A], then added that the applicant had made a contribution to her life in the form of attending to plumbing, fencing and lawn-mowing for her. She closed by stating that the applicant is shy.
The Tribunal noted the applicant’s new claim in relation to his Christianity. It noted that the applicant had commenced attending church shortly after his breakup with his partner, [Ms A].
The Tribunal asked the applicant why he had commenced an involvement with a Christian church. The applicant replied that when he was in Iran, he didn’t like being a Muslim and claimed that before he left Iran, he identified as an atheist. He stated that when he separated from [Ms A], he wanted to join a community.
The Tribunal noted this but went on to explain to the applicant that it may have concerns that the applicant only considered Christianity in March 2018 after receiving notice from the Department of the cancellation of his Visa. The Tribunal expressed its concern that the applicant may be considered as attempting to enhance his prospects of remaining in Australia by now claiming to be a Christian convert.
The applicant denied that, stating that he became a Christian because of the sense of community and sense of calm that it gave him.
The Tribunal asked the applicant what it meant to be converted to Christianity. The Tribunal noted that the applicant had not been baptised or confirmed into the Christian religion and had really only been attending the church at [Suburb 1] for 12 to 14 months. The applicant reiterated the sense of community and that he enjoyed being with his Christian friends and being kind and generous to people.
The Tribunal asked the applicant whether he would practice the Christian faith if he was required to return to Iran. The applicant replied that he would, but that he would be afraid to do so. When asked what he meant by that, the applicant replied that Christian converts are persecuted in Iran.
The Tribunal then asked the applicant about how he left Iran.
The applicant replied that he departed from Iran in May 2010. He says he walked through the mountains with another man to the [Country 1] border. He crossed the border there. He states that he then received a fake passport in [Country 1] and handed over his real passport at that time in exchange. He stated that he did not need to use his real passport to leave Iran.
The Tribunal expressed two concerns with this evidence. The first was that it appeared to be inconsistent with what the applicant had stated in his entry interview and then again in his Protection Visa Application. At question 52 in his Protection Visa Application, where asked whether he has his travel document with you now, and if not, where is it and why, the applicant stated specifically, “I travelled with a false passport and left my real passport in Iran. It is still valid”.
The applicant replied that he could not remember what he had put in his Protection Visa Application.
Secondly, the Tribunal noted that that particular passport which he claims was handed over to a people smuggler in [Country 1] was date-stamped [in] May 2010 as being used on that day to depart from [the Tehrani] Airport. Specifically, the passport was date-stamped [in] February 1389 which is equivalent [to] May 2010 in the Gregorian calendar. The Tribunal asked how that could be. The applicant replied that someone else must have used his passport. The Tribunal, noting the sophistication of the Iranian entry and exit procedures at airports, commented as to the unlikeliness of that scenario. The Tribunal accepted that the applicant’s response was purely speculative.
The Tribunal noted to the applicant that at no time had he adduced any evidence in the form of statements from his business partner about his arrest or indeed supporting any of his claims, did not have any statement from his business partner’s wife whom he had contacted and was advised of his business partners’ arrest, and had no statement even from his own father whom he had cited as stating that the Basij had visited their home looking for him. In response, the applicant appeared to shrug his shoulders and said he could get that evidence if the Tribunal wanted it. The Tribunal, in response, noted that the applicant really was required to make his own case and noted that the applicant had had more than two years in order to secure evidence in support of his application for review of the cancellation of his Visa.
The Tribunal notes that the applicant did make a further submission to the Tribunal on 6 September 2019 but such submission still did not include any supporting evidence in the form of witness statements, as discussed.
The Tribunal noted that notwithstanding the applicant’s claimed illegal departure from Iran, he nevertheless applied for a new passport from the Iranian Embassy in Canberra. The Tribunal discussed with the applicant that by doing so, he was effectively notifying the Iranian authorities that he was in Australia and furthermore, was telegraphing to the authorities that he was likely to be returning to Iran, and that in doing so, it appeared to contradict his claims to fear returning to Iran. The Tribunal asked the applicant whether he experienced any issues upon re-entering Iran when he returned in 2013, particularly given his alleged illegal departure in 2010. The applicant confirmed that he had no issues re-entering Iran in 2013.
The Tribunal asked the applicant how this could be, given the applicant’s claims that he was a person of adverse interest to the authorities given his political opinion. The applicant replied that when he returned in 2013, things were much calmer in Iran. The election was behind them and he believes the authorities probably didn’t have any interest in him in 2013.
The Tribunal confirmed that the applicant meant that the authorities were not interested in him in 2013, but were interested in him in 2011. The applicant agreed.
In closing the hearing, the Tribunal asked the applicant why he was required to use a fake passport, when he had a valid passport which he could have used to enter [Country 2]. The applicant replied that he didn’t know, stating that the people smuggler said that he was required to have one.
Post-Hearing Submission
The applicant provided a further Statutory Declaration dated 5 September 2019 which was received by the Tribunal on 6 September 2019.
In that submission, he refers to his relationship with [Ms A]. He states that they met on 15 December 2013. He states that in July 2014 he and [Ms A] moved in together into her home and were in a de facto relationship.
He stated that [Ms A] has a Bi-Polar Disorder and has previously been admitted to hospital for psychiatric care. He states that he provides [Ms A] with care and emotional support when she experiences such Bi-Polar episodes. He cites an example in October 2014 when [Ms A] experienced a Bi-Polar episode, but because of his care and emotional support, she did not have to be admitted to hospital.
The applicant notes that in June 2015, [Ms B] moved in with him and [Ms A]. He states that during this period he grew closer to [Ms B] and would take her to poker and often cooked with her. He states he began to call [Ms B] his mum.
He states that notwithstanding their separation in January 2018, he is still a big part of [Ms A]’s life. He states he still cares for [Ms A] and that they are best friends and he continues to provide her with emotional support and the two of them work together in a [business] to which [Ms A] provides financial support and he runs the day-to-day operations.
In relation to his practice of Christianity, he states that he first attended [Church 2] in March 2018 and became a member of that church. He states he converted to Christianity after he was brought to the church by a Pastor who was a customer in his [business]. He states he attends church each week and is now a practising Christian.
He states that he has changed his lifestyle in line with Christian beliefs such as attending church weekly, partaking in the blessing of the body of Christ, seeking out the same Christian values in others and offering his thoughts of Christ and Christianity when given the opportunity to talk about the word of God.
In relation to the information in his Protection Visa Application Form, he states that he travelled to [Country 1] by foot and that he left his passport back in Iran. He states that this was a mistake as he left his identity card back in Iran but had his passport with him and he gave it to the smuggler in exchange for a fake passport when he arrived in [Country 1]. He states that the mistake arose because in Iran, identity card, Birth Certificate and passport are used colloquially and interchangeably, and he uses those words to mean the same thing. He believes he later clarified within his application that his passport was given to the smuggler in [Country 1].
In relation to his 2013 visit to Iran, he states he went to see his grandmother for a few weeks period and that he stayed home with his grandmother at all times. He states this is very different compared to the need of returning home and needing to find a job and re-join the conservative Muslim community and face death threats.
In relation to the effect of relocating back to Iran, the applicant stated as follows:
(a)“In Iran, it is a capital crime for a citizen of Iran to convert from Islam to another religion;
(b)Iran still has capital punishment;
(c)In Iran, as I am a convert, it is unlawful for me to practice my faith with the Christian community;
(d)The Basij and Iranian authorities have persecuted me for my political involvement in the 2009 Iranian election for my help in assisting the electoral candidate, Mosavi. They harassed my family, arrested me, beat me and detained me;
(e)If I were returned to Iran, I fear that I would be arrested and detained by the Basij and Iranian authorities for my political involvement in the past;
(f)I fear that I will face punishment of prison or execution for converting my religious ideologies and beliefs;
(g)If I were to return to Iran after 10 years of living in a western country (Australia) and needing to assimilate back into the Muslim community, it will be very hard for me.”
Conclusion on non-compliance
The Tribunal was struck by both the amount of inconsistent evidence adduced for the hearing, and the sheer paucity of evidence, that is, evidence unable to be provided by the applicant in support of his claims. For example, the applicant claims that his business partner was arrested, that the business partner’s wife spoke to him to advise him of that fact, and that his father warned him that the Basij had been to his home looking for him, yet no witness statements were produced to corroborate such claims, nor were such witnesses produced to give evidence, even by telephone.
The Delegate decided that the applicant returned to Iran for a period of over four weeks without him being identified or detained by the Iranian authorities as he claimed he would be in his Protection visa application. The applicant was able to enter and exit Iran without harm or impediment by the Iranian authorities. This indicated that he did not hold an adverse profile, nor was he at risk of harm or persecution by the Iranian authorities. The Delegate also determined that the applicant departed Iran in the first instance in his own identity and using his own Iranian passport. In doing so, he did not need to conceal his true identity which he had claimed was of adverse interest to the Iranian authorities. He departed Iran using his true identity, without harm or impediment. This suggested that his protection claims were based upon a fabricated and incorrect adverse profile. Furthermore, the applicant voluntarily approached the Iranian authorities in Australia in order to apply for an Iranian passport which was granted to him in his true identity, thus alerting those Iranian authorities to his presence in Australia and his possible intention to travel to Iran. The Iranian passport was issued to the applicant [in] 2012 by the Iranian Embassy in Canberra. Country Information suggests that stringent security checks are undertaken at the passport application stage by the Iranian authorities, including confirmation that the applicant exited Iran using a genuinely issued passport in their name and the date of exit.
The Tribunal notes that the applicant confirmed having applied for a new Iranian passport through the Iranian Embassy in Canberra.
The Tribunal notes that the applicant departed Australia [in] April 2013 using an Australian issued Titre de Voyage. He returned to Australia [in] May 2013. The Tribunal also notes that when the applicant departed Australia, he indicated a 21 day visit to [Country 3] for a holiday on his outgoing passenger card.
The Tribunal notes that the applicant was subjected to a baggage search conducted by the Australian Customs and Border Protection services officers upon his arrival in Australia [in] May 2013. During that search, an Iranian passport was found. That passport was in his Iranian name and was issued [in] 2012 by the Iranian Embassy in Canberra. The Tribunal also notes that when questioned by the service officers, he claimed that he had travelled to [City 2] and [City 1] during his travels. He did not initially admit to travelling to Iran. After examination of his passport, it was then that the applicant admitted to having travelled to, and staying in, Tehran for the majority of his time outside of Australia.
94.The Tribunal also noted the evidence that his Iranian passport, under the heading “Observations”, stated that the applicant’s last departure from [the Tehrani] Airport was [in] February 1389, which is equivalent [to] May 2010, in the Gregorian calendar. The Tribunal was particularly interested in this departure date as it appeared to align with the date that the applicant claimed to have left Iran and to have travelled by foot through the mountains into [Country 1].
In making this statement, the applicant was claiming that he had left Iran illegally. The applicant’s recount of events is further complicated by the fact that he claims that he took his Iranian passport with him and exchanged it for a fake passport in [Country 1]. The Tribunal had put to the applicant that this evidence appeared to be inconsistent with what he had stated in his entry interview and then again in his Protection visa application, that is, that he had left his real passport in Iran and it was still valid. In response, the applicant replied at first that he could not remember what he had put in his Protection visa application and requested the Tribunal to re-examine it. When reminded by the Tribunal that his passport had in fact been stamped as having been used to exit Iran [in] May 2010, the applicant replied that somebody else must have used it.
The Tribunal was not persuaded by the applicant’s evidence in this regard. The applicant’s claims, by his statements, are inconsistent in themselves and the use of his Iranian passport with a confirmed date stamp of use [of] May 2010 clearly contradicts either statement made by the applicant, that he either left it in Iran or exchanged it in [Country 1] after not having used it to depart Iran. The Tribunal is not satisfied that the applicant left Iran illegally.
Furthermore, the issue of a new passport by the Iranian Embassy in Canberra, which itself notes his previous departure from Iran [in] May 2010, would confirm the Tribunal’s finding that the applicant did not leave Iran illegally. The Tribunal had discussed Country Information referenced by the delegate which suggested that stringent security checks are undertaken at the passport application stage by the Iranian authorities, including confirmation that the applicant exited Iran on a genuinely issued passport in his name and the date of exit.
Whilst initially denying to service officers having returned to Iran, the applicant did finally admit to returning to Iran in 2013. When asked by the Tribunal whether he had experienced any issues or inconvenience upon his return to Iran at the point of entry into Iran, the applicant replied that he did not. When it was put to him by the Tribunal that this would indicate that the Iranian authorities had no interest in him, and certainly no adverse interest in him, he replied that the circumstances were different in 2013 to those prevailing in 2010 when he left. He replied that the election outcome was now well behind them. The Tribunal notes that his response may go some way to explaining the change in attitude of the Iranian authorities to him in relation to his claims relating to his political activity, but does not reconcile his free admission back into Iran after previously having left Iran illegally as claimed. Iran’s stringent security checks at entry and exit points within Iran would have indicated to the authorities that he had left Iran illegally if that had been the case.
Accordingly, the Tribunal is satisfied, on the basis of the evidence in the form of the issue of a new Iranian passport to the applicant by the Iranian Embassy in Canberra, his statement on his outgoing passenger card that he intended to holiday in [Country 3], his statements to the service officers upon his return to Australia that he had been to [City 2] and [City 1] and had not mentioned Iran at all until his baggage was searched and his Iranian passport uncovered, and the fact of his return to Iran without issue or incident at either entry or exit, together with all of the Country Information available that highlights the stringent security procedures of the Iranian authorities at entry and exit points to Iran, that the applicant did not depart Iran in 2010 illegally, that he did use his own legally issued passport to depart [the Tehrani] Airport [in] May 2010 and that by being able to do so, he was clearly of no adverse interest to the Iranian authorities for any of the reasons claimed in this Protection visa application.

100. The inconsistencies in his evidence and implausibility of his explanations have led the Tribunal to have no confidence in his evidence and to have the gravest doubts about the genuineness of his claims.
101. The Tribunal also noted the applicant’s post-hearing submission wherein he attempted to explain the inconsistency of his evidence in relation to his passport being left in Iran. He claimed that the mistake arose because in Iran, identity cards, Birth Certificates and passports are used colloquially and interchangeably and that he himself uses those words to mean the same thing. Based on the credibility findings of the Tribunal already made, the Tribunal does not accept this explanation, noting in particular that the applicant had been particularly specific in the wording used in his Protection visa application by virtue of the use of the specific word “passport”. The Tribunal noted that the applicant to date had been quite particular in his evidence about many things and seriously doubts that the applicant, given his education and also his claimed professional background, could be so loose in the use of a word such as “passport”.
102. The applicant also stated in his post-hearing submission that when he went to see his grandmother, he stayed indoors with her at all times. He goes on to state that this is very different compared to the need of returning home and needing to find a job and re-joining the conservative Muslim community. The Tribunal finds the statement that he stayed indoors at all times to be implausible and completely at odds with his statement in the hearing that he believed the authorities were not interested in him in 2013 as the election results were now well behind them.
103. The applicant’s post-hearing submissions only served to add to the Tribunal’s view that the applicant will say and do anything in order to support the written and fabricated claims previously made.
104. The Tribunal now turns to the matter of the applicant’s new claim as to his recent conversion to Christianity.
105. The applicant claims that he found Christianity shortly after breaking up with his partner. He claims he was introduced to a church by a client from his [business], in March 2018. The Tribunal noted that this was some time after receiving notice from the Department of the cancellation of his Visa.
106. The Tribunal did put these relative timings to the applicant in the form of an expression of concern that the applicant may have only considered Christianity after receiving notice of the cancellation of his Visa and that the applicant may be considering an attempt to enhance his prospects of remaining in Australia by now claiming to be a Christian.
107. In response to that, the applicant stated that he became a Christian because of the sense of community and sense of calm that it gave him.
108. In noting that the applicant had produced no evidence of any Baptism into his church or produced any letters of support from the church, and further noting that he had only been attending the church at [Suburb 1] as claimed for 12 to 14 months, the Tribunal asked the applicant what it meant to be converted to Christianity. The applicant responded by reiterating the sense of community and that he enjoyed being with his Christian friends.
109. The Tribunal asked the applicant whether he would practice his Christian faith if he was required to return to Iran. The applicant replied that he would but that he would be afraid to do so. The applicant stated that Christian converts are persecuted in Iran.
110. The Tribunal also recalled the evidence of his two witnesses. The evidence of his former partner was interesting in that she was surprised that the applicant had turned to Christianity given that he is not one to try new things, and the evidence of the former partner’s mother, the woman that the applicant calls “mum”, was that she was not aware of his Christianity and knew nothing about it. The Tribunal also noted that the applicant had claimed that before he left, he identified as being an atheist.
111. The applicant’s evidence in relation to his newfound Christianity was less than compelling. The Tribunal was surprised that a lady whom he claimed to be very close to was not aware and knew nothing about his Christianity. If anything, the Tribunal accepts that the applicant is motivated to attend a church for his stated reasons of a sense of community and making friends, especially so after a recent breakup. But the Tribunal is not persuaded that the applicant will have an enduring connection with Christianity, based on his long-held identification with atheism and based on the Tribunal’s previously stated concerns and findings in relation to his credibility and the genuineness of his claims.
112. The Tribunal does not accept that the applicant is a Christian convert, rather one who is attending a church for the purposes of community and friendship.
113. 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.
114. Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1]
[1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004)
115. In Tarasovski v MILGEA[2] Wilcox J said that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[3] What Wilcox J said was subsequently applied in Singh v MIEA[4] and Housam Slayman v MIMA[5]. In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:
[2] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336
[4] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
[5] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.
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 cause 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. [6]
[6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32]

116. This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[7] and Sun v MIBP[8]. In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:
[7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
[8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’

117. In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his Statutory Declaration are serious.
118. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: that the answers given in the applicant’s Protection visa application form, were incorrect. In summary the particulars relied upon the applicant’s voluntary return to and residence in Iran for four weeks and there having been no impediment or issue with the Iranian authorities and having not attracted any adverse attention from them as the basis for finding the applicant had provided incorrect information in his Protection visa application about his fears, risk and profile in Iran.
119. It is for this reason that the Tribunal, having found that the applicant exited Iran initially with his own passport and in his true name, and applied for a new passport at the Iranian Embassy in Canberra and then returned to Iran voluntarily, is unable to make any finding other than that the applicant has provided incorrect information in his original Protection Visa Application.
120. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
121. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
122. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
· the correct information

· the content of the genuine document (if any)

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

· the circumstances in which the non-compliance occurred

· the present circumstances of the visa holder

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

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

· the time that has elapsed since the non-compliance

· any breaches of the law since the non-compliance and the seriousness of those breaches

· any contribution made by the holder to the community.

123. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information.
124. The applicant claimed in his Protection Visa Application that he would be caught and harmed by the Basij if he returned to Iran because he was known to them because of his activities associated with supporting the candidate Mosavi in the 2009 elections.
125. The correct information is that the applicant was not known to the Iranian authorities and did not hold the adverse political profile as claimed in his statement. Despite his claimed fears, the applicant travelled to Iran, departing Australia [in] April 2013, he remained in that country without hinderance or harm from the Iranian authorities and returned to Australia without incident.
The content of the genuine document (if any)
126. The prescribed circumstance is not relevant in the present case.
Whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document.

127. The decision to grant the applicant his Protection visa was based on his meeting the definition of “refugee” within the meaning of the Refugees Convention and the relevant provisions of the Act and he was found to be a person to whom Australia owed protection obligations.
128. As has been discussed with the applicant, the Tribunal considers that the applicant would not have been granted a visa if it had been known that he had given incorrect answers about his claims in his application for the visa.
The circumstances in which the non-compliance occurred.

129. Upon arrival in Australia via Christmas Island, the applicant completed a Protection visa application after a finding by the Independent Protection Assessment Delegate. The Tribunal noted that the applicant’s claims in his Protection visa application largely followed the findings of the Protection Obligations Determination Delegate.
The present circumstances of the applicant.

130. The Tribunal revisited the submission of the applicant’s previous representative, [Mr F], which noted he was a self-employed [Occupation 1] in the Brisbane region, he enjoyed high regard by his colleagues and peers alike, that he had been in a three year relationship with an Australian citizen who suffered from Bi-Polar Disorder and that the applicant had been a positive influence on her during the course of their relationship. The Tribunal noted a letter from the applicant’s partner’s consulting Psychiatrist which stated that he believed it inevitable that the partner will relapse and suffer a depressive phase of Bi-Polar Affective Disorder if her partner (the applicant) is returned to Iran and in an earlier letter where the consulting Psychiatrist had stated “there is absolutely no doubt and certainly in my notes through 2014, 2015 and 2016 reflect that (the partner’s) health has substantially improved … this I attribute to the stability to the support she has in her relationship …”.
131. During the hearing, the Tribunal took evidence from the applicant, his former partner, and his former partner’s mother which confirmed that he is no longer in a relationship with [Ms A], although they remain good friends and are involved in a business together. The Tribunal particularly noted the relationship of the applicant with [Ms B], the former partner’s mother, and noted the social outlet that he provides to her. The Tribunal noted the appreciation of both mother and daughter to the support that the applicant provides to them both socially and in performing domestic tasks.
The subsequent behaviour of the applicant concerning his obligations under Sub Division (c) of Division 3 of Part 2 of the Act.

132. The Tribunal noted that the applicant, despite having received a Protection visa by the Australian Government and receiving Australian travel documents, had nevertheless applied for an Iranian passport to use for international travel from the Iranian Embassy in Canberra.
Any other instances of non-compliance by the applicant known to the Minister.

133. The applicant advised that there had been no breaches of his visa terms.
134. On the basis of the evidence before the Tribunal there are no other instances of non-compliance by the applicant known to the Minister.
The time that has elapsed since the non-compliance.

135. The Tribunal notes that the applicant has been in Australia since 2010 and that his visa was cancelled in 2017 and that 1½ years have since elapsed. The applicant advised that the cancellation of his visa was causing him great stress and that it was also impacting on his own health.
Any breaches of the law since the non-compliance and the seriousness of those breaches.

136. The applicant advised that he has not breached any law, other than occasional traffic offences.
137. On the basis of the evidence before the Tribunal the applicant has not breached the law since the relevant non-compliance.
Any contribution made by the applicant to the community.

138. The applicant reiterated his care for [Ms A] and [Ms B].
139. The Tribunal accepts that the applicant has worked and contributed to the taxation system. The Tribunal also accepts that the applicant has integrated into his community and has formed a number of close friendships.
Whether there would be consequential cancellations under s.140.
140. There are no persons in Australia whose visa would, or may be, cancelled as a consequence of the cancellation of the applicant’s visa.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
141. If the applicant’s visa is cancelled, he would be subject to s.46(1) of the Act, barring him from applying for a further visa in Australia (including a Bridging Visa) unless the Minister exercises his non-compellable discretion. Further, if the applicant’s visa is cancelled, he would be subject to the s.48A(1B) bar. He would also become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act.
142. The Tribunal understands that an International Treaties Obligations Assessment would be conducted prior to the applicant being removed from Australia.
Conclusion
143. Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program. By his deception, the applicant has retained significant benefit. The Tribunal is satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing his claims to be granted a Protection visa. The Tribunal is satisfied that as an Iranian citizen, the applicant will have access to the benefits and rights accruing to Iranian citizenship on his return.
144. However, the Tribunal notes that the applicant has resided in Australia for around nine years and this is a substantial period of time. Since arriving in Australia, he has made a close connection to a lady, with whom he resided for a period of time, and became close to her mother, though the nature of that relationship has now changed to one of friendship. The applicant has no known criminal record. The applicant is presently self-employed and has been so for a significant period of time.
145. The applicant’s presence in Australia and the contributions that he has made to the health stability of his former partner, and the friendship with her mother has moved the Tribunal. However, they are now former partners, and notwithstanding their friendship, it is apparent that [Ms A] is not dependent now upon the applicant as a partner. There are many support services available to [Ms A]. Furthermore, whilst in a business relationship, it is apparent that the applicant is the business manager, and it is likely that [Ms A] will secure another business manager.
146. However, given all of the findings herein, including the willingness of the applicant to deceive the Australian authorities, and to deliberately maintain before the Delegate and this Tribunal, that he left Iran illegally in the face of compelling physical evidence to the contrary, the Tribunal is satisfied that the applicant is not a generally credible witness, and even allowing for the overweighting of the considerations identified above and particularly in paragraphs 130 to 131, is unable to exercise its discretion in the applicant’s favour.
DECISION
147. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Michael Hawkins

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.

[2019] AATA 6834

30 October 2019

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Immigration

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