1712034 (Refugee)

Case

[2019] AATA 5960

11 September 2019


1712034 (Refugee) [2019] AATA 5960 (27 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712034

COUNTRY OF REFERENCE:                   Iran

MEMBER:Michael Hawkins

DATE AND TIME OF

ORAL DECISION AND REASONS:         27 August 2019 at 3:00 pm (QLD time)

DATE OF WRITTEN RECORD:                11 September 2019

PLACE OF DECISION:  Brisbane

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 11 September 2019 at 11:40am

CATCHWORDS
REFUGEE – protection visa – Iran – cancellation – incorrect information in visa application – religion – Christian – pressured into travelling to Iran – participation in a traditional Islamic wedding ceremony – prolonged stay – cogent and consistent evidence – credible witness – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109

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.

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 May 2017 to cancel the applicant’s protection visa under the Migration Act 1958 (the Act).

  2. At the hearing on 27 August 2019 the Tribunal made an oral decision and gave an oral statement of decision and undertook to provide reasons in due course. The following is the written record of those reasons.

    STATEMENT OF DECISION AND REASONS

    APPLICATION FOR REVIEW

  3. 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).

  4. 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.

  5. The applicant appeared before the Tribunal on 27 August 2019 to give evidence and present arguments.  

  6. The applicant was represented in relation to the review by his registered migration agent.

  7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside and a decision not to cancel the applicant’s Subclass 866 (Protection) visa be substituted.

    CONSIDERATION OF CLAIMS AND EVIDENCE

  8. 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.

  9. 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.

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

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

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

    a.all questions on it are answered; and

    b.no incorrect answers are given or provided.

  12. The delegate concluded that the applicant has not complied with section 101(b) of the Act as he has provided incorrect answers to questions 42, 43, 44, 45, 46, 47 and 48 of the form 866C in his application for a visa.

    Background

  13. The applicant first arrived in Australia [in] January 2010 as the holder of a [temporary] Visa. The applicant was granted two further [temporary] Visas [in] May 2011 and again [in] April 2012.

  14. On 20 June 2012, the applicant lodged a Form 866 - Application for a Protection (Class XA) Visa.

  15. The applicant provided a Statutory Declaration dated 12 November 2012 in support of his application for a Protection Visa.

  16. The applicant claimed to be a Christian.

  17. The applicant claimed his uncle threatened him that he ought not return to [Country 1] and that he would send a report to the Iranian authorities telling them that the applicant was a Christian, anti-God and anti-government.

  18. The applicant claimed that his uncle was involved with Islamic groups who were fanatical in their belief.

  19. The applicant claimed that his paternal aunt in Iran had told his father that he was considered an infidel.

  20. The applicant claims that if he were to return to Iran, he will be imprisoned, tortured and executed by the Iranian government. He claimed that he would be labelled as a “corrupter on Earth” if he returned to Iran and therefore would be killed.

  21. It was on the basis of the applicant’s claims of being a Christian and requiring the protection of Australia that the XA Sub-Class 866 Protection Visa was granted on 13 March 2013.

  22. [In] May 2013, the applicant departed Australia to [Country 2]. The applicant returned to Australia [in] June 2013. On his return, he was queried by Border Force Officers as to his travel. He replied that he had travelled to [Country 3] to visit his fiancée.

  23. On 17 July 2013, the applicant was the proposer for a Partner Visa (BC-100) application lodged for his partner. In support of the application, his partner provided a Statement dated 10 July 2013 and an Iranian Marriage Certificate dated [May] 2013. The Marriage Certificate was registered [in] May 2013 and issued by the “State Land and Registration Organisation” in [City 1] (Iran). The applicant was listed as the Husband in the Marriage Certificate. Information in the Marriage Certificate suggests the applicant is a Moslem (sic) and the conditions of the marriage appear to be in accordance with Islamic traditions.

  24. Information provided by the applicant’s partner in her Statement dated 10 July 2013 indicates that the applicant entered Iran for a period of time between [May] 2013 and [June] 2013. This information is supported by the information contained in the Marriage Certificate as it was issued in [City 1].

    Notice of Intention to Consider Cancellation

  25. On the basis of the above information, the Department sent to the applicant a Notice of Intention to Consider Cancellation of his Protection Visa. The Notice was issued on 14 November 2016.

  26. The applicant replied on 14 December 2016. The applicant provided the following reasons as to why the Visa should not be cancelled. His reasons included as follows:

    ·     The applicant maintains that he has not provided false or misleading information to the Department;

    ·     The applicant states he intended to marry his spouse in [Country 3] because he was fearful of travel to Iran. However, he was pressured to travel to Iran to participate in a traditional Islamic ceremony by his spouse’s parents who insisted that a traditional wedding ceremony be held prior to their union;

    ·     The applicant contacted the Department prior to travel and was advised that there were no visa conditions attached to his visa that would limit his travel outside of Australia;

    ·     The applicant claims he was faced with a dilemma due to the risk of travel to Iran and the prospect of not being permitted to marry his spouse if he was unable to participate in a traditional Islamic ceremony;

    ·     The applicant had arranged, and travelled, to [Country 3], however, his spouse’s parents insisted that she would not be permitted to travel to [Country 3]. The applicant was then forced to risk travel to Iran to participate in the ceremony;

    ·     The applicant and his partner did not complete any forms in association with their traditional marriage ceremony and were not asked about their religion as it is assumed that everyone is Muslim. Their Birth Certificates were handed to the Registrar to be completed;

    ·     The Government of Iran does not recognise marriages between Muslim women and non-Muslim men and religious conversion is considered an act of apostasy which carries the death penalty;

    ·     The applicant had no influence regarding the conditions written in the Marriage Certificate as the conditions of marriage are traditionally agreed upon by families;

    ·     The applicant remained in Iran for a longer period than expected due to illness;

    ·     On his return to Australia, the applicant was spoken to by a Border Force Officer and provided true statements about his travel. Specifically, he was asked where he was returning from and stated “[Country 3]” and that the purpose of his travel was to visit his wife. The applicant did not intend to conceal his travel to Iran and voluntarily presented his Iranian passport to the Border Force Officer on request;

    ·     Although the applicant’s Marriage Certificate shows that he is a Muslim, this information was not written by the applicant and as such does not reflect his religion, belief or ideology. The applicant cannot confess to the marriage authorities that he is a Christian because he would have been imprisoned and persecuted by the Iranian authorities;

    ·     The applicant has only travelled once to Iran for a short time and has not returned since. The applicant’s travel to Iran was more than three years ago and was only as a result of extraordinary circumstances and pressure. The applicant has no intention to return to Iran in the future;

    ·     The applicant considers that if he had stayed in Iran for a greater period of time and had come to the attention of authorities or his paternal relatives, he would not have been able to depart Iran safely;

    ·     The applicant does not believe in Islam and does not live life as a Muslim. The applicant’s wife is also baptised Christian and attends church;

    ·     The applicant has provided a number of reasons why he is unable to return to Iran and has never stated that he is on any sort of blacklist or that he was a wanted person in Iran. The applicant has reaffirmed that he faces persecution in Iran on the basis of his claims in his Protection Visa Application;

    ·     The applicant has resided in Australia for a period of approximately four years and considers Australia as his home. The applicant is of good character and has abided by Australian law since his arrival;

    ·     The applicant has always been employed apart from a few weeks of receiving Centrelink benefits. The applicant has contributed to the economy by paying taxes;

    ·     The applicant is responsible for mortgage repayments on his own house and has purchased another property that is shared with his [sibling];

    ·     The applicant is currently employed as the [Occupation 1] of [Employer 1] which is a [specified] agency;

    ·     The applicant has studied a professional course in [specified subject] at [University 1] and has enrolled in another full-time course in the same field due to begin in September 2017;

    ·     All members of the applicant’s family reside in Australia and are either citizens or are permanent residents. The applicant and members of his family would suffer emotionally if he were to be separated from his family in Australia;

    ·     The applicant is involved in community social activities as a member of a [sports] team;

    ·     The applicant hopes to become an Australian citizen and continue to contribute to Australian society.

    Departmental Decision to cancel the applicant’s visa under s.109 of the Act

  27. The Departmental delegate proceeded to cancel the applicant's subclass 866 visa in a decision made on 30 August 2017.

  28. 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.

  29. The Delegate determined as follows:

    “The Department has information that shows the visa holder has travelled to Iran to participate in a traditional Islamic wedding ceremony within three months of being granted a Protection Visa for Australia. The visa holder had claimed in his application for a Protection Visa that he was fearful of returning to Iran because he has converted to Christianity. The visa holder claimed that his uncle may have informed the Iranian authorities of his claimed apostacy. He feared imprisonment, torture and the death penalty if Iranian authorities found out that he is a Christian. The visa holder also feared members of his extended family who may seek to punish him on the basis of his conversion to Christianity. However, despite the risk, the visa holder voluntarily returned to Iran and undertook marriage rituals in the faith he alleged he no longer had an affinity with, and, despite the visa holder’s claims that he was fearful of Iranian authorities because he has converted to Christianity;

    On his return to Australia, the visa holder has provided answers to an Australian Border Officer when questioned about his movements while offshore. The visa holder failed to disclose his travel to Iran which may have been an attempt to conceal his travel to his country of origin, Iran;

    I consider that the visa holder’s travel to Iran tests the credibility of his central claim for protection that he was in genuine fear of returning to Iran. The visa holder’s claim that he believed his uncle had informed the Iranian authorities about his apostacy, and risking the possible death penalty if identified, is not consistent with his voluntary travel to Iran. It is reasonable to assert that a person who genuinely faces such serious consequences would not voluntarily travel to their country of claimed persecution as it would place them at an unreasonable risk of harm;

    While I accept that the visa holder is not the author of his Marriage Certificate or, the content listing him as a Muslim, I find that this information remains inconsistent with the visa holder’s protection claim that he is a Christian. When considered together with his voluntary travel to Iran, without apparent issue or impediment, and within three months of being granted a Protection Visa, suggests that his claims for a Protection Visa were fabricated in order to obtain a permanent visa to Australia. The visa holder’s voluntary participation in a traditional Islamic wedding ceremony is evidence that the visa holder is not a Christian as claimed. The existence of a Marriage Certificate which lists the visa holder as a Muslim shows that the visa holder is recognised as a Muslim in Iran and is further evidence that the visa holder is not a Christian as claimed;

    As the Marriage Certificate was issued to the visa holder in Iran, I accept that the document represents a record of the visa holder’s participation in a traditional Islamic wedding ceremony and his official recognition as a Muslim in Iran;

    I have considered the visa holder’s response to the Notice and the documentation provided in support of his claims. However, I do not accept that the visa holder held a genuine fear of persecution in Iran, on the basis of his religious beliefs, at the time of lodging his Protection Visa Application. The visa holder’s voluntary return travel to Iran, without apparent issue or impediment, demonstrates that he is not of adverse interest to the authorities in Iran, or that he faces reprisal/harm from his extended family. I do not accept that the visa holder was pressured into travelling to Iran, as the consequences and possible serious harm would have been of far greater concern to a person who genuinely, and reasonably, faced such a threat of harm. I therefore consider that at the time of application, the visa holder did not hold a genuine fear of persecution by Iranian authorities, or members of his family, on the basis of his religious beliefs as a Christian;

    I therefore consider that the visa holder is recognised as a Muslim in Iran, and as such, would not be persecuted by Iranian authorities, on the basis of apostacy as claimed in his Application for a Protection Visa. The visa holder’s voluntary travel to Iran is evidence that he was not in fear of the Iranian authorities at the time of his application for a Protection Visa;

    I therefore consider that the visa holder has provided incorrect information in his application for a Protection Visa.”

    Review Hearing

  30. The Tribunal conducted a hearing on 27 August 2019. The applicant was represented, and he attended the hearing with his representative Mr. [A].

  31. At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department of Immigration to cancel his Protection visa under s.109 of the Migration Act. The Tribunal noted that a delegate of the Department of Immigration 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.

  32. The Tribunal noted that the delegate of the Department of Immigration 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 him, 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.

  33. 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.

  34. The Tribunal noted that the applicant was granted a subclass 866 (Protection) visa on 13 March 2013. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision and it suggested to the applicant that the Tribunal might take the applicant's claims for protection provided to the Department of Immigration [in] June 2012 and [in] November 2012 as having been read. The applicant agreed.

  35. The Tribunal noted the receipt by it of a submission from the applicant dated 26 August 2019.

  36. The Tribunal considered the two submissions of the Representative, the first being a submission that was apparently made in 2017 but of which the Tribunal has no record and the second submission made the day before the hearing. The Tribunal permitted the Representative to explain the submissions that he had made. The Representative responded by stating that in his view, the applicant had not provided any incorrect information in his Protection Visa Application. He stated that by returning to Iran, for a brief visit, he had not breached any of the conditions of his Protection Visa.

  1. The Tribunal explained to the Representative that it didn’t appear to it that that is what the Delegate had determined. The Delegate had determined that the applicant had provided incorrect information in his Protection Visa Application because he had claimed that he feared going back to Iran because of his Christianity. But, on the facts as found, the Delegate determined that the incorrect information was that he had gone back to Iran and had got married to a Muslim in a Muslim ceremony and that therefore the applicant was still a Muslim and that his claim to be a Christian was incorrect information.

  2. The Tribunal stated to the applicant that it had two primary concerns. The first concern was that he had, within a period of three months, returned to Iran, the very place that he had only very recently, claimed to fear returning to. The second concern relates to why it was that he participated in a traditional Muslim marriage ceremony, apparently as a Muslim, which was clearly against the beliefs and ideology that he now claims to hold as a Christian. The Tribunal asked the applicant whether, given that he was prepared to go through a sham religious ceremony, whether he might not then make a sham Protection Visa Application.

  3. The applicant responded by stating again that he had no intention to go to Iran because of his fears of persecution. He stated that his plan was to go to [Country 3], be married in [Country 3] and then return to Australia. He restated he had never had any intention to go to Iran.

  4. The Tribunal enquired about the applicant’s wife and how they had met.

  5. The applicant explained that he hadn’t actually met his wife until he went back. They had communicated up to that time by Skype. He explained that he and his wife’s families were old friends. He said his father was a friend of his wife’s grandfather. He stated that it was not an arranged marriage, rather a recommended marriage.

  6. The Tribunal asked the applicant whether his wife knew that he was a Christian and when she was informed.

  7. The applicant replied that he had told her that he was a Christian and had done so after a few weeks of first communicating with her. She knew he was a Christian before they were married. He also claims that he had asked his wife not to tell her family about his Christianity and believes that she had not done so.

  8. The Tribunal asked the applicant what his wife thought about the fact that he was prepared to go through with a Muslim marriage ceremony even though he was a Christian. The applicant replied that his wife respected him and his decision.

  9. The Tribunal asked the applicant how his participation in a Muslim ceremony rested with his Christian faith, enquiring whether it was a case of pragmatism, that he would do whatever it took in order to be married to his wife, or was it a case of “I can’t tell anyone I’m a Christian so I’ll keep up this façade of being a Muslim for a couple of weeks”.

  10. The applicant responded by stating that in Iran you have no choice as to whether you are a Muslim or a Christian. He was born as a Muslim Shia. In relation to his marriage, he stated that he had found the love of his life and again restated that he had no intention to go to Iran. He said they were supposed to be married in [Country 3] and then come back to Australia, but then had to return to Iran for the ceremony at the demand of his wife’s family. It was not his choice. Furthermore, the applicant stated that the ceremony was not a religious ceremony, or traditional or anything like that. It was an official process, a Registry office-type ceremony - it was not a Muslim ceremony. He went on to explain that a few family members attend at the office, an official says a few words and the husband and wife sign the Registry.

  11. The applicant then went on to explain that there was no Mullah, or priest, present.

  12. The Tribunal asked the applicant whether anyone in Iran knew that he was a Christian.

  13. The applicant replied that he had managed to keep his Christianity a secret the whole time he was in Iran.

  14. The Tribunal asked the applicant about his uncle in [Country 1] who knew he was a Christian and who had promised to tell the authorities. The Tribunal asked the applicant whether it was possible that he may have told other family members that he, the applicant, was now a Christian.

  15. The applicant replied that the uncle probably had told his family members that he was a Christian, however, none of his paternal relatives went to the wedding or even knew that he was in Iran and they lived a long way from where he was visiting.

  16. The Tribunal asked the applicant about the length of his stay in Iran. The applicant again replied that it was not his intention to remain for that period of time in Iran, but for the fact that he became quite ill.

  17. At this juncture, the applicant presented a number of documents in relation to his attendance at doctors and hospitals in Iran. The Tribunal considered the medical reports and confirmed that there were many visits to doctors and to a hospital and that many tests had been undertaken. The documentation contained results of those tests and the Tribunal was able to ascertain that the tests had been dated [in] June 2013.

  18. The applicant also reminded the Tribunal that his uncle lived in the [Country 1].

  19. The Tribunal discussed the applicant’s illness with him. The applicant acknowledged that he was probably ill for three of the five weeks that he was in Iran. During that time, he was either in hospital or in a house and was therefore out of the public view. He was adamant that no one, apart from his immediate family, and his wife’s immediate family, knew that he was in Iran.

  20. The Tribunal confirmed with the applicant that no one in Iran who went to his wedding, or saw him, or who knew he was in Iran, knew that he was a Christian. The applicant agreed. The Tribunal went on to confirm that the basis on which he had applied for the Protection Visa, being that he was a Christian and feared going back because he would be identified as a Christian, didn’t actually exist because even though he went back, it was only for a short period of time, he had a specific purpose for going back, and he had not, at any time, identified himself as a Christian and none of the people who knew he was a Christian, through his paternal uncle and his father’s side of the family, actually knew he was in Iran. The applicant agreed.

  21. The Tribunal summed up the applicant’s submission as follows:

  22. The applicant’s claim to be a Christian and fearing going back to Iran is still credible. And if that is the case, the applicant has answered the NOICC honestly and he didn’t misrepresent his claims in his Protection Visa and he has been true to his claims by not identifying himself as a Christian, taking all reasonable precautions to protect his identity.

  23. The Representative then offered a submission in relation to the Civil Code which states under Article 105(9) that marriage of a female Muslim to a non-Muslim is not allowed. The Representative stated that when one goes into the Registry office, you are not asked your religion, it is assumed that there is a male Muslim and a female Muslim. You are not asked to confirm that. You simply sign the Certificate. The Representative stated that the applicant just wanted the Certificate and did what was required to get it.

  24. The Tribunal confirmed with the Representative that it was his submission that the applicant had done what was expedient and pragmatic to get himself married and back out of Iran as quickly as possible and that it was only his illness that delayed his departure longer than he had intended to stay. The Representative agreed that was the case.

    Conclusion on non-compliance

  25. The Tribunal was struck by what it considered the inherent honesty of the applicant. It noted that the submissions of his Representative, though more expansive, were largely consistent with the information provided by the applicant in his response to the NOICC. His evidence to the Tribunal was cogent and consistent with his response to the NOICC. He responded quickly to questions put to him and without apprehension.

  26. The Tribunal ignored the flamboyant rhetoric of the Representative in his submissions.

  27. The Tribunal, on the basis of the evidence before it, is inclined to set aside the cancellation. The Tribunal notes that the reason the applicant was given a Protection Visa was that he had claimed to be a Christian. It was clear that the original Delegate had been persuaded by that, the applicant had made the case that he was a Christian, and that he has practiced as a Christian both in Australia and in the [Country 1].

  28. The Tribunal discussed with the applicant that he had been served a NOICC because the view was taken he had gone back to Iran shortly after getting a Protection Visa which suggested that he didn’t really fear going back to Iran as a Christian and that because he had got married in a Muslim ceremony, and thereby proclaimed himself as a Muslim, or didn’t deny that he was a Muslim, a decision was taken that he was not a Christian and his claims lacked credibility and weren’t genuine. Further, his credibility was doubted as the Delegate formed the view that in his interactions with the Border Force Officers, he had not disclosed he had been to Iran and has thereby been deceptive.

  29. On the evidence before the Tribunal, it is clear that the applicant has gone back to Iran for a short period of time and for a very specific purpose of being married. It was not his intention to return to Iran; he had hoped to facilitate his marriage in [Country 3]. It has not been inconsistent with his claim to be a Christian as he has gone back and done nothing to identify himself as a Christian. His Christianity is not on his identity documentation and no one could identify him as a Christian on his travel documents. He has taken the precaution of telling no one that he is a Christian, except his intended wife. The only person that knew he was a Christian, his uncle, is in the [Country 1] and the only people that his uncle may have told were his family members on the applicant’s father’s side and on the evidence presented, none of those family members were invited to the wedding or even knew that he was in Iran. The Tribunal accepts that the wedding ceremony was not a religious ceremony, it had no trappings of a religious ceremony, that no Mullah or Priest was present, but rather was a civil ceremony. The Tribunal accepts that the applicant has not stated that he is a Muslim during the ceremony – that has been an assumption made by others based on the Civil Code.

  30. And finally, on the evidence presented, the applicant responded truthfully to the Border Force Officer when asked where he had travelled from, which was [Country 3] and had produced his passport willingly when asked. The Tribunal is satisfied that he answered the question that was asked and did not withhold his passport when required to produce it.

  31. His wife has now come to Australia and converted to Christianity and there appears to be ample evidence in the form of statements and witnesses prepared to attest to their involvement in their local church and community.

  32. The Tribunal is of the view that the applicant has managed his return to Iran in such a manner as to not discredit his claims to be a Christian, and to fear returning to Iran on that basis.

  33. The Tribunal is left with the evidence before it and it is for these reasons, the Tribunal finds there was no non-compliance with s.101(b) by the applicant in the way described in the s.107 Notice.

  34. For these reasons, the Tribunal finds that there was no non-compliance with s.101(b) 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.

    DECISION

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

    Michael Hawkins
    Member


Areas of Law

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  • Administrative Law

  • Statutory Interpretation

Legal Concepts

  • Judicial Review

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