1712706 (Refugee)

1712706 (Refugee) [2019] AATA 6803 (25 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712706
COUNTRY OF REFERENCE:                   Iran
MEMBER:Michael Hawkins
DATE:25 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 25 September 2019 at 4:23pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – applicant retuned to Iran three times – applicant engaged the Iranian authorities – passport renewal – obtaining driver’s license – applicant’s father passed away in Iran – applicant’s divorce not recognised in Iran – shared custody and access to children – best interests of the children – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 46, 48A, 101, 107, 109, 189, 198, 438
Migration Regulations 1994 (Cth), r 2.4; Schedule 2
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 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 applicants 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 30 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. 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:
a.all questions on it are answered; and
b.no incorrect answers are given or provided.
The delegate concluded that the applicant has not complied with section 101(b) of the Act as she has provided incorrect answers to questions 41, 42, 43, 44, 45 and 46 of the form 866C in her application for a visa.
Recourse to the s.107 Notice of Intention to Consider Cancellation (NOICC) at folio 34 on the Departmental file [number] has particularised information deemed to be in breach of ss.101(b) of the Migration Act.
The NOICC indicates on 16 May 2011 the applicant arrived in Australia at Christmas Island as an illegal maritime arrival (IMA) with her husband ([named]). Upon arrival the applicant claimed protection from Australia.
The NOICC notes on 3 October 2011 that the applicant was interviewed with her Immigration Advice and Application Assistance Scheme (IAAAS) agent. In that interview the applicant prepared a Refugee Suitability Assessment (RSA) submission and made the following statements regarding her claims:
Country to which I do not want to return
Iran
Why I left that Country, including details of harm
a.    My difficulties in Iran began as a result of the last presidential election in 2009.
b.    My whole family was supporting Mr Mosavi (President Ahmadinejad's opponent). We were assisting with the campaign by distributing posters. The election appeared to be so relaxed and we thought we had freedom of speech.
c.    It seemed to me that everyone supported Mosavi and so I was not scared to express my political opinion.
d.    I had been working in the [agency] for three years prior and had never had any
difficulties. I had great respect for the rules and regulations. Straight after the election I began to have problems. I was criticised heavily for mistakes
e.    I went to work and got very sick and had a miscarriage.
f     After a few days, I went back to work. My employers were horrible to me and said that they would be taking that time from my annual leave.
g.    I began having headaches and suffering severe depression. I saw a psychologist and a specialist for nerves. In order to continue to work I had to go to counselling sessions and use medication.
h.    I received a letter from the government office Bazresi. Publically this office's role is to see if the [agencies] have done anything against the law. In reality, they train spies and investigate any employee who maybe against the government. (Request to attend an interview).
i.   [In] April 2011, they gave me the written outcome of the interview. The letter said that the answers to the questions were not acceptable and were unconvincing. They said that my employment was terminated.
j.   I received a phone call from a man called [Mr A]. He said he was calling from the Etelaat office (Iran's Security and Intelligence Service). He gave me the address and said that I had to attend in the morning.
k.     When I came back home I noticed that there was a piece of paper in the door. It was from Etelaat [dated in] April 2011.
l.   This letter summoned me. By law I was obligated to attend. If you do not attend these appointments, the undercover intelligence people take you by force. They take you in a bag so you cannot see where you're are going. You do not know if you will return or not. At that time we realised our lives were in danger. We could not live there anymore.
m.   My husband and I were not safe anymore and so we had to leave immediately.
What I fear may happen if I return to that country
In Etelaat the first thing they do is torture you. They have been known to rape women. I cannot imagine such a thing happening to me.
I have heard that the minimum torture for a woman is that they break a soft drink bottle and they rape the woman with the broken glass.
Who I think will harm / mistreat me if I was forced to return to that country
The authorities will find me and take me to Etalaat.
I cannot move to another area. Iran has an intelligence system. They influence the other countries around them in the Middle East. We have to enter Iran to live in another area. If we do that we will be caught.
Why I think I will be harmed/ mistreated if I return to that country
If you are called to Etelaat you have already been found to be guilty. You do not go there to prove your innocence.
Why I think the country's authorities will not protect me if I am forced to go back to there
It is the authorities who I need protection from. We left the country because of my fear of persecution due to my political orientation. Also because I was against the regime.
On 27 October 2011 a Protection Obligations Evaluation (POE) found that the applicant and her husband [named] were not persons to whom Australia has protection obligations in accordance with the definition of a refugee.
The NOICC notes that on 8 April 2012, at a subsequent appeal, the Independent Protection Assessment assessed the applicant and [her husband] as being persons to whom Australia has protection obligations.
The NOICC further notes on 27 June 2012 the Minister lifted the bar and the applicant lodged her XA-866 Protection visa application.
On 28 June 2012 the applicant lodged an application for a Protection visa which included Form 866 - Application for a Protection (Class XA) visa. In that application the visa holder was asked the following questions:
41.I am seeking protection in Australia so that I don't have to go back to .........
(Give name of country or countries)
The visa holder stated:          'Iran'
42.Why did you leave that country?
The visa holder stated the following:
a.   'My difficulties in Iran began as a result of the last presidential election in 2009.
b.   My whole family was supporting Mr Mosavi (President Ahmadinejad's opponent). We were assisting with the campaign by distributing posters. The election appeared to be so relaxed and we thought we had freedom of speech.
c.    It seemed to me that everyone supported Mosavi and so I was not scared to express my political opinion.
d.   I had been working in the [agency]/or three years prior and had never had any difficulties. I had great respect for the rules and regulations. Straight after the election I began to have problems. I was criticised heavily for mistakes
e.   I went to work and got very sick and had a miscarriage.
f.     After a few days, I went back to work. My employers were horrible to me and said that they would be taking that time from my annual leave.
g.   I began having headaches and suffering severe depression. I saw a psychologist and a specialist/or nerves. In order to continue to work I had to go to counselling sessions and use medication.
h.   I received a letter from the government office Bazresi. Publically this office's role is to see if the [agencies] have done anything against the law. In reality, they train spies and investigate any employee who maybe against the government. (Request to attend an interview).
i.     [In] April 2011, they gave me the written outcome of the interview. The letter said that the answers to the questions were not acceptable and were unconvincing. They said that my employment was terminated.
j.     I received a phone call from a man called [Mr A]. He said he was calling from the Etelaat office (Iran's Security and Intelligence Service). He gave me the address and said that I had to attend in the morning.
k.    When I came back home I noticed that there was a piece of paper in the door. It was from Etelaat [dated in] April 2011.
l.     This letter summoned me. By law I was obligated to attend. If you do not attend these appointments, the undercover intelligence people take you by force. They take you in a bag so you cannot see where you're are going. You do not know if you will return or not. At that time we realised our lives were in danger. We could not live there anymore.
m. My husband and I were not safe anymore and so we had to leave immediately.
43.What do you fear may happen to you if you go back to that country?
The visa holder stated:
'In Etelaat the first thing they do is torture you. They have been known to rape women. I cannot imagine such a thing happening to me... ...I have heard that the minimum torture for a woman is that they break a soft drink bottle and they rape the woman with the broken glass
44.Who do you think may harm/mistreat you if you go back?
The visa holder stated the following:
'The authorities will find me and take me to Etalaat..... I cannot move to another area. Iran has an intelligence system. They influence the other countries around them in the Middle East. We have to enter Iran to live in another area. If we do that we will be caught.
45.Why do you think this will happen to you if you go back?
The visa holder stated:
'If you are called to Etelaat you have already been found to be guilty. You do not go there to prove your innocence'
46.Do you think the authorities of that country that can and will protect you if you go back? If not, why not?
The visa holder stated:
'It is the authorities who I need protection from. We left the country because of my fear of persecution due to my political orientation ....Also because I was against the regime.’
The NOICC notes that on 3 July 2012, based on the above information, as well as meeting other relevant criteria the applicant was granted a subclass XA-866 Protection (Permanent) visa.
The NOICC notes that on 7 September 2012 the applicant gave birth to her daughter, [named] in Australia who by operation of Australian citizenship law is an Australian citizen.
The NOICC notes that [in] January 2013, approximately six months after being granted her Protection visa the applicant departed Australia with her daughter. The applicant indicated on her outgoing passenger card that she intended to spend three months overseas and that most of that time would be in Iran.
The NOICC notes that [in] January 2014 the applicant returned to Australia with her daughter approximately one year after her departure. On the applicant’s incoming passenger card she indicated that she had spent most of her time in Iran.
The NOICC notes that [in] February 2014 the applicant again departed Australia with her daughter and indicated that she intended to travel to [Country 1] for two months on her outgoing passenger card.
[In] July 2014 the NOICC notes the applicant returned to Australia with her daughter, five months after her previous departure. The applicant indicated on her incoming passenger card that she had spent most of that time in [Country 2].
The NOICC notes that on upon arrival the applicant was interviewed by departmental officers at [the] airport. She initially stated that she had spent three months in [Country 1] with her mother and sister in a rented apartment. When questioned further regarding the other two months the applicant corrected herself and stated she had spent five months in [Country 1]. Located in her baggage at this time were:
·   Airline itinerary reservation number for the applicant and her daughter that states that the applicant departed Tehran, Iran on [a date in] July 2014;
·   An international driving permit issued by the Iranian Ministry of Roads and Transportation dated [in] 2014;
·   An Iranian passport for the applicant's daughter issued [in] 2012 at the Iranian Embassy, Canberra, ACT; and
·   The applicant's Iranian passport issued [in] 2012 at the Iranian Embassy, Canberra, ACT.
The NOICC notes that upon the discovery of these items the applicant admitted that she had returned to Iran and that had only claimed that she went to [Country 1] initially because she thought that she may not be allowed to re-enter Australia.
The applicant then stated to Border Officers she returned to Iran because her father had passed away ten months prior and her mother was depressed. The applicant further stated that no one knew she was there and she did not leave the house.
The NOICC notes that [in] March 2015 the applicant again departed Australia with her husband and daughter and indicated on her outgoing passenger card that she was travelling to [Country 3] for 40 days for a holiday. Prior to departure the applicant was questioned by departmental officers regarding her travel. During this conversation the applicant presented a travel itinerary that confirmed she was travelling to Iran with her husband and daughter ([from] March 2015 to [April] 2015).
The NOICC notes that [in] April 2015 the applicant, her husband and daughter returned to Australia. Upon arrival the applicant stated that she had returned to Iran with her husband and daughter to visit her mother who was suffering depression.
The NOICC notes that the applicant stated in her Protection visa application that she fled Iran with her husband because ‘we left the country because of my fear of persecution due to my political orientation’, regarding her open support of president Ahmadinejad's political opponent during the 2009 elections.
The NOICC notes that the applicant stated that she was wanted by Etelaat (the Iranian security and intelligence agency) and that she believed they will rape and torture her if she returned to Iran.
The NOICC notes that Country Information advises that Iran is a regulated country whereby the movements and actions of its citizens are significantly scrutinized.
The NOICC notes that since being granted her Protection visa the applicant has applied for and was issued two Iranian passports for herself, issued [in] 2012 and her daughter, issued [in] 2012, by the Iranian Embassy in Canberra. This process would have required the applicant to provide her details to the Iranian government thus alerting them to her circumstances and whereabouts. The delegate noted that even though applying for a passport does not specifically undermine the applicant's protection claims regarding state based persecution, it does however cast doubts on those claims given that the applicant was issued her Iranian passport and that of her daughter within a relatively short timeframe (approximately six months) after the grant of her protection visa.
The NOICC notes that it was confirmed that the applicant returned to Iran on three occasions since the grant of her Protection visa on 3 July 2012, therefore she has engaged with the Iranian authorities on at least six occasions whilst entering and exiting Iran. The details of these trips are:
·   [January] 2013 to [January] 2014 (Approximately one year);
·   [February] 2014 to [July] 2014 (Approximately five months);
·   [March] 2015 to [April] 2015 (Approximately one month);
·   On each trip she travelled with her infant daughter.
The NOICC notes that Country Information advises that Iran's monitoring system of persons entering and exiting the country is sophisticated. The delegate contended that if the applicant held the adverse political profile as she stipulated in her Protection visa application and was wanted by a government agency such as the Iranian intelligence agencies she would have most likely been apprehended by government authorities prior to departing or arriving in Iran.
The NOICC notes that the extended length of time the applicant has spent in Iran unhindered since the grant of her visa is not consistent with the adverse political profile that she stipulated in her Protection visa application.
The NOICC notes that additionally the applicant has travelled with her infant daughter on each occasion to Iran. The delegate considered that these actions were not consistent with a person who claimed to hold an adverse political profile in Iran in their protection visa application and fears persecution by way of torture as they could jeopardize the safety and wellbeing of their child if adverse action was taken against them in Iran.

The NOICC notes that [in] 2014 the applicant was issued an international driving permit from the Iranian Ministry of Roads and Transportation. The delegate considered that this action is not consistent with her response to Border Officers that she had spent the whole time in her mother's house (5 months). Further, the delegate considered that the act of driving would further increase the risk of interacting and being apprehended by government officials, thus this is not consistent with her alleged adverse political profile and suggests that the applicant did not hold the stated profile as declared in her Protection visa application.
The NOICC notes that the applicant claimed in her Protection visa application that she could not return because of the state based political persecution she had suffered due to her open support against the Ahmadinejad government and further claimed that she was wanted by the Iranian authorities.
The NOICC notes that since being granted her Protection visa the applicant has engaged with the Iranian authorities, her alleged persecutors; on several occasions including:
·   Applying for and obtaining her Iranian passport shortly (approximately six months after being granted her Protection visa;
·   Travelling to Iran with her infant daughter on three occasions voluntarily in the identity by which she was supposedly adversely known to the Iranian authorities, most specifically the Iranian intelligence service (Etelaat) without impediment or issue;
·   The applicant has spent a significant amount of time (approximately 16 months in total) living in Iran with her infant daughter without suffering any apparent persecution.
The delegate noted in the NOICC that Country Information advises that Iran has sophisticated and regulated intelligence systems; particularly at its airports for monitoring compliance with its laws. The delegate considered that if the applicant was of any adverse interest to the Iranian state she would have come to the authorities notice and most likely been apprehended at the border. The delegate further considered that given the demonstrated behaviour by the applicant the information that she provided in response to Questions 41, 42, 43, 44, 45 and 46 of her Protection visa application is incorrect.
The NOICC then considered the following:
Question 41:
I am seeking protection in Australia so that I don't have to go back to .........
The visa holder stated:     'Iran '
The visa holder has continuously and voluntarily returned to and lived in Iran for a significant amount of time with her infant daughter safely without any adverse reactions from Iranian authorities. The visa holder's claimed fears of return to Iran are negated by her regular willingness to travel to, engage with and live in Iran which led the delegate to consider that her response to Question 41 is incorrect.
Question 42:
Why did you leave that country?
The visa holder stated the following:
a.    'My difficulties in Iran began as a result of the las presidential election in 2009.
b.     My whole family was supporting Mr Mosavi (President Ahmadinejad's opponent). We were assisting with the campaign by distributing posters. The election appeared to be so relaxed and we thought we had freedom of speech.
c.     It seemed to me that everyone supported Mosavi and so I was not scared to express my political opinion.
d.     I had been working in the [agency] for three years prior and had never had any difficulties. I had great respect for the rules and regulations. Straight after the election I began to have problems. I was criticised heavily for mistakes.
e.     I went to work and got very sick and had a miscarriage.
f.     After a few days, I went back to work. My employers were horrible to me and said that they would be taking that time from my annual leave.
g.     I began having headaches and suffering severe depression. I saw a psychologist and a specialist for nerves. In order to continue to work I had to go to counselling sessions and use medication.
h.     I received a letter from the government office Bazresi. Publically this office's role is to see if the [agencies] have done anything against the law. In reality, they train spies and investigate any employee who maybe against the government. (Request to attend an interview).
i.   [In] April 2011, they gave me the written outcome of the interview. The letter said that the answers to the questions were not acceptable and were unconvincing. They said that my employment was terminated.
j.   I received a phone call from a man called [Mr A]. He said he was calling from the Etelaat office (Iran's Security and Intelligence Service). He gave me the address and said that I had to attend in the morning.
k.    When I came back home I noticed that there was a piece of paper in the door. It was from Etelaat [dated in] April 2011.
l.   This letter summoned me. By law I was obligated to attend. If you do not attend these appointments, the undercover intelligence people take you by force. They take you in a bag so you cannot see where you're are going. You do not know if you will return or not. At that time we realised our lives were in danger. We could not live there anymore.
m.   My husband and I were not safe anymore and so we had to leave immediately. '
Country information advises that if the visa holder was of any adverse interest to the Iranian state it would have been alerted due to their sophisticated and regulated intelligence systems whereby the visa holder would have been apprehended at the border. Despite the visa holder’s claimed adverse political profile she has demonstrated the ability to obtain an Iranian passport in the name that she was adversely known to the Iranian authorities, voluntarily return to Iran on three separate occasions with her infant daughter and live there for approximately 16 months in total without impediment or any adverse protection related issue. Given the visa holder’s discussed behaviour it appears that she did not hold the adverse political profile initially claimed, therefore her response to question 42 is incorrect.
Question 43:
What do you fear may happen to you if you go back to that country?
The visa holder stated:
'In Etelaat the first thing they do is torture you. They have been known to rape women. I cannot imagine such a thing happening to me......I have heard that the minimum torture for a woman is that they break a soft drink bottle and they rape the woman with the broken glass
The visa holder has willingly returned to Iran on three occasions and in the process has had several engagements with the authorities. In view of the dire actions that she believed she would suffer if she was arrested/detained by the authorities, the delegate considered it implausible that she would risk this outcome if she had a genuine fear/expectation that this was a possibility. The visa holder has safely returned to Australia after each visit and does not appear to have suffered any issue or impediment. Therefore the delegate considered that visa holder had provided incorrect information when answering this question on her visa application.
Question 44. Who do you think may harm/mistreat you if you go back?
The visa holder stated the following:
‘The authorities will find me and take me to Etalaat ..... I cannot move to another area. Iran has an intelligence system. They influence the other countries around them in the Middle East. We have to enter Iran to live in another area. If we do that we will be caught.
Travelling using her Iranian passport that was obtained in Australia (within six months of being granted her Protection visa) in her name that she was adversely known to the Iranian authorities
1. Interacting with government authorities upon entering and exiting Iran and.
2. Obtaining an international driver's licence from the regulating body
Therefore it appears that the visa holder did not hold the adverse political profile as claimed.
Question 45.         Why do you think this will happen to you if you go back?
The visa holder stated:
‘If you are called to Etelaat you have already been found to be guilty. You do not go there to prove your innocence'
Country information indicates that Iran's monitoring system is sophisticated such that she would have been apprehended upon entering or departing Iran if she had been wanted by a government agency.
The visa holder has travelled to and returned from Iran with her infant daughter and lived there for approximately 16 months in total with no apparent protection issue.
Given that the visa holder had at least six interactions with Iranian immigration without incident it would appear that the visa holder was not wanted by Iranian authorities therefore her response to Question 45 is incorrect
Additionally the visa holder may have driven in Iran as evidenced by the issue of her Iranian driver's license or used it for identification purposes thus being publically visible and increasing the likelihood of apprehension in spite of her claimed adverse political profile.
Question 46.         Do you think the authorities of that country can and will protect you if you go back? If not, why not?
The visa holder stated:
'It is the authorities who I need protection from. We left the country because of my fear of persecution due to my political orientation....Also because I was against the regime.'
The visa holder has travelled to Iran with her infant daughter and lived there for approximately 16 months in total without enduring any adverse reactions from the authorities. Given the visa holder's original claims that it was the authorities from whom she sought protection, her repeated travel back to Iran and engagement with the authorities indicates that she did not have a genuine fear of them or that she even held the adverse profile that she had claimed when applying for her Protection visa. Therefore the delegate considered that the visa holder's response at Question 46 is incorrect.
The NOICC notes that the delegate considered that the applicant has not complied with section 101(b) of the Act as she has provided incorrect answers to questions 41, 42, 43, 44, 45 and 46 of the form 866C in her application for a visa. If the applicant has failed to fill in their application form in such a way that no incorrect answers are given or provided their visa may be cancelled.
The NOICC notes that by failing to comply with s.101 (b) of the Act the applicant's subclass 866 Protection visa is liable for cancellation.
Response to NOICC
The applicant responded to the NOICC through her Representatives, the delegate noting that the applicant engaged two different migration agents since the issue of her NOICC on 25 June 2016.
The delegate noted that on 4 August 2016 the applicant provided the following response with the assistance of her [Migration Agent 1] which contained the following submission and supporting documentation including the following:
·     [Migration Agent’s] letter dated 4 August 2016;
·     Joint statement from the applicant and her husband [named];
·     Scanned translated) psychiatrist certificated dated 1 March 2015 for [the applicant’s mother];
·     Scanned copy of the applicant's Iranian Passport;
·     Scanned copy of Iranian Passport - [of the applicant’s husband];
·     Scanned copy of Iranian Passport for [the applicant’s daughter];
·     Scanned Copy Australian Passport for [the applicant’s daughter];
·     Translated Birth Certificate father of applicant of [named]; and
·     Translated Death Certificate [of the applicant’s father].
The submission notes that:
1.I [the applicant], was born and raised in a family where we had very close relationship and were very emotionally dependant on each other. We loved each other immensely.
2.After we fled Iran, [the applicant’s] father ([named]) became very depressed and was in deep anguish as to whether he would see us again while he was still alive. He became very depressed and mentally stressed.
3.In 2012, we applied for a visiting visa for [the applicant’s] parents twice and both times our applications were refused. At around that time we had our first child and due to us being far apart from [the applicant’s] father, he became very sad and went deeper into depression due to the reality that he could not be close to his granddaughter (our child).
4.About one month after our daughter was born, Mr [the applicant’s father] had a massive brain stroke and lost control of his hands, arms and legs as well as his speech. He suddenly became totally disabled, bed ridden and in need of total care by others.
5.I ([the applicant]) loved my father very much and on hearing the news of his massive stroke, I felt compelled to get to him as fast as I could as he might die very soon. I could not think about anything other than getting to my family and being with them.
6.We had no proper legal advice when we received our protection visas. We didn't clearly know that we were banned from going to Iran; rather, we were under the impression that because we were refugees we should avoid going to Iran as much as possible, and if we did go to Iran we thought we had to be careful in order to not fall into the hands of the Iranian authorities.
7.For me ([name]), it was a choice between staying here and leaving my father to die without seeing him or taking the risk with the authorities in Iran, and I took the risk as my love for my family came first. My husband ([named]) supported me as I was under immense stress and sadness.
8.When I ([name]) got to my mother's home in Iran I was devastated to find my father almost totally paralysed and in need of help for the most very basic of things including personal care and hygiene. I found my mother in a state of shock and almost everyone being beside themselves. I had to take charge and take a stand to help my father and look after him.
9.My ([the applicant’s]) father always loved to have a grandchild so I took our daughter to Iran for my father to see her. Unfortunately he was paralyzed and could not hold his grandchild. It was very sad for him and for us all.
10.My ([the applicant’s]) mother had to get back to paid work in order to maintain their finances. !took care of my father at home or in the hospital. He stayed alive for about a year and then passed away. I stayed in Iran for a few more weeks to help with my mother to go through her grieving process before I left her to come back to Australia.
11.Not long after our return to Australia, Mrs [the applicant’s mother] fell into severe depression and had to be under medical treatment. We did not want to see her perishing in the sadness and pressure of losing her life companion. The treating doctor had told her that she should not be living alone.
12.I ([the applicant]) had to rush back to Iran to be with her. I took our daughter with me to assist her in giving hope and a positive outlook on life and to help her recover from depression.
13.I ([the applicant]) stayed there for about 5 months until she recovered enough to be able to take care of herself. I came back to Australia.
14.After a while [the applicant’s mother] started to fell back into depression and her mental health deteriorated. We were very concerned about her future. We could not let my mother fall into the same situation. We decided to go and visit her and be with her to help her recover as quickly as possible. We travelled with our daughter and we stayed for about a month until she felt better and we could leave her, trusting that she would be able to manage her situation.
15.We apologise to the Australian government and plea that they consider our circumstances compassionately. We did not go to Iran for having a holiday, family reunion or for having a fun time. Rather, we went there due to the severe medical condition of our father who had become paralysed before finally passing away, and then also due to severe health condition of our mother.
16.We now realize that we took a great risk by entering and exiting Iran. We were not captured or detained at the airport. However that does not mean that our life is no longer in danger in Iran, or, that we have provided incorrect information or unreliable statements for protection. To be safe, we even tried to keep low profiles whilst in Iran as much as we could.
17.I ([the applicant]) received an international driving license while in Iran, but that did not involve direct interaction with the authorities. Please note that when I fled Iran to seek asylum I had an Iranian issued International driving license. When I returned to Iran it was due for renewal. My mother got a form for renewal and I filled it in. I received the new license by postal delivery.
18.We only took the risk to go to Iran because our father ([named]) was dying and later because our mother ([named]) was severely depressed. These factors were compelling and beyond our control. Even the length of time we had to stay was dictated exclusively by the factors pertaining to their health.
19.We apologise to the government of Australia for not having been upfront and honest in our responses on the departure cards or the departure or arrival interviews. We did not think that writing a wrong answer on departure or arrival card will be contravening a migration law that can have such a severe consequence. This misunderstanding was due to our lack of English comprehension.
20.We didn't know that we could have asked the department for special permission to leave to Iran which we now deeply regret.
21.We had not received proper legal advice about our protection visa conditions when we were originally granted the visas, and therefore did not exactly know what we could or could not do.
22.I ([the applicant]) felt that it wasn't right for me to fly back to Iran after finally having received a protection visa due to the extent of my problems in Iran. However I never knew that I was contravening laws and regulations by travelling to Iran. This is why I was mistakenly so cavalier about it.
23.We are also frustrated as to why we were not warned or reprimanded the first time we contravened the migration law. This strikes us as unfair. We were not aware of our contravention and its serious nature and no one, including the customs or officials, brought that to our attention. It was almost as if they wanted to see us fail and contravene the law, rather than assist us to understand how to obey the law.
24.Our child was born in Australia and she is an Australian citizen. It is her right to live in her country of citizenship. Also she was too small to decide whether she wanted to make the trip with us. If anything, she was travelling with us without her wish. She did not voluntarily travel to Iran and cannot be punished for that. She must be allowed to live in her country of citizenship.
25.Also, we as parents and legal guardians of our child. She as a child and as an Australian child has the right to have the care of her parents. We must be able to be here to cater for her emotional, financial and personal needs.
26.We plead you to look at our case compassionately and to use your discretion to not cancel our protection visas.
The delegate noted that on 4 October 2016 the applicant provided the following response with the assistance of her [Migration Agent 2] which contained the following:
·     [Migration Agent’s] letter dated 4 August 2016;
·    Statutory Declaration from applicant dated 4 October 2016;
·    [Australian qualifications];
·    [Education provider 1] - internship statement - 2 February 2015;
·    Translated attendance statement from [an Iranian] University;
·    Translated attendance statement - [an Iranian college];
·    [Education provider 2] ID;
·    Birth Certificate - [the applicant’s daughter];
·    Baptism certificate the applicant and husband;
·    [Church 1] letter dated 27 September 2016;
·    Ten letters of from community members; and
·    Iran Country information.

The delegate noted that in her NOICC response to “if no, reasons why the visa holder disputes that there was non-compliance”, the applicant stated in her statutory declaration:
'Before I travelled back to Iran to see my father, we were desperately looking for some way that I could travel to Iran safely. My [Relative A] eventually found a person in the ETELAAT office of IMMAMKHOMEINI airport to remove our name from the airport black list. This is how we were able to enter the Iran airport without being discovered. My [Relative A] had to sell off his apartments to raise the funds ($[amount] USD). When I entered Iran, my [Relative A] transferred us from the airport to our city in south of Iran via his car.
In addition, 6 months before I travelled to Iran, my family changed their home address to another address because the worried that ETELAAT may come searching for us whilst we were there. My family were then located in a new address and no neighbours really knew who they were. Whilst we were living in Iran, we were living under cover and in secret. We did not exit our home or communicate with any old friends or relatives; no one knew I was in Iran (other than my immediate family). I was just located in the home looking after my dat. Also, I did not have to get in touch with any Government office to obtain the international drivers licence. This was issued by a travel agent that my mother-in-law organised…’
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 Protection visa in a decision made on 5 June 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 as the applicant failed to give correct information in her 866 visa application.
The delegate noted that in her response to the NOICC, the applicant provided conflicting information:
The information before me indicates that the visa holder did not hold the adverse political profile that she initially claimed in her XA866 Protection visa application. The fact that the visa holder has demonstrated the ability to freely enter and depart Iran and live there for approximately 16 months in total with her infant daughter without any apparent protection issue indicates that she did not hold her claimed adverse political profile.
Additionally I note that the visa confirmed that she was not detained or apprehended by the Iranian authorities after presenting with the identity she claimed was of significant adverse interest to the authorities in her NOICC response.
Therefore the information that the visa holder supplied in response to questions 41, 42, 43, 44, 45 and 46 is incorrect.
The visa holder stated in her ITOA submission that her [Relative A] had paid $[amount] USD from the sale of properties to have her name removed from the airport blacklist which allowed her to freely enter and depart Iran. This claim was not raised in her initial response to her NOICC nor did she stipulate how she knew she was on the 'blacklist'. This claim appears to be belated and most likely has been fabricated to overcome the Department's concerns about her repeated travel to Iran.
The visa holder stated that she had obtained her driver's licence through the travel agent which did not require her to reveal herself physically to the authorities. However this action would have revealed her location upon application and applying for her driver's licence suggests that she intended on driving in Iran during her stay. The act of driving would alert and draw attention, or at the very least, raised the possibility that by being out in the community, she would encounter police, government officials and any other agency that monitored the community. Therefore her claim that she kept a 'low profile' does not appear to be true or accurate.
Additionally I note a disparity between the visa holder's response to the NOICC and her ITOA submission regarding her international driver's licence, such that she stated the following:
NOICC I did not have to get in touch with any Government office to obtain the international drivers licence. This was issued by a travel agent that my mother-in-law organised.' And
ITOA 'When I returned to Iran it was due for renewal. My mother got a form for renewal and I filled it in. I received the new license by postal delivery'
Given the varying versions for visa holder's license renewal I am not inclined to accept her claims and this further diminishes her credibility.
The visa holder applied for her Iranian passport from the Iranian Embassy in Canberra [in] 2012 (within 6 months of her Protection visa grant) such that this action would have alerted the Iranian government to her whereabouts. This combined with her voluntary and repeated travel to Iran without issue demonstrates that she did not genuinely believe that she was of adverse interest to the Iranian authorities.
Review Hearing
The Tribunal conducted a hearing on 30 July 2019. The applicant attended the hearing with her Representative [named].
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 her 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 her application for protection. As a result of this the applicant was served with a Notice of Intention to Consider Cancellation of her visa and given an opportunity to comment on those grounds.
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 her application for a protection visa regarding her 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 her 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 her 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 section 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 3 July 2012. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision and suggested to the applicant and her Representative that the Tribunal might take the applicant's claims for protection provided to the Department of Immigration on 28 June 2012 as having been read. The applicant and Representative agreed.
The Tribunal enquired as to the status of the husband’s visa. The applicant replied that her husband’s visa was also cancelled by the Department and he was awaiting a review.
Section 438 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.438 of the Act. It states that information held at Folios 1 to 9 contains sensitive third-party provided information as well as internal departmental investigative documents that are not publicly available and the disclosure of these documents may impede further investigations.
A copy of the Certificate was provided to the applicant at the hearing and to the applicant’s Representative.
The Tribunal has considered the material identified in the Certificate and considers the Certificate is valid.
The Tribunal spent considerable time explaining to the applicant and the Representative what the contents of the folios were. It explained that all of the pages related to Border Force reporting of the applicant’s responses to questioning upon her return from travel. The Tribunal is satisfied that disclosure of those documents would telegraph the Australian Government’s investigative processes.
The Tribunal advised that the information contained in the reports had been well documented in the NOICC and in the decisions of the delegates to date and that they contained no information that the applicant and the Representative would not already be well aware of.
The Tribunal asked the applicant whether she had any comment to make in relation to the s.438 Notice. The Representative advised that it was satisfactory.
The Tribunal received from the applicant’s Representative a very comprehensive submission prior to the hearing. The Tribunal discussed the contents of that submission with the applicant and the Representative during the hearing.
At the outset, the Tribunal expressed its concerns to the applicant about the fact that she had willingly returned to Iran three times since obtaining her Protection visa and on each occasion had taken her infant daughter with her. The Tribunal noted that the applicant had spent 16 months, over the course of those three visits, residing in Iran, despite having made a case that she feared persecution on the basis of her political beliefs and was fearful of returning to Iran as she would face arrest, imprisonment and, in particular, the possibility of being raped. Notwithstanding those fears, the applicant had returned three times and had obtained from the Iranian Embassy in Canberra, a new Iranian passport for herself in the name by which the authorities knew her, and for her daughter.
The applicant’s Representative had explained that after the grant of the Protection visas, the applicant discovered that her father had suffered a serious stroke, and it was not expected that he had long to live. The applicant had a close relationship with her parents and was distraught to hear of her father’s condition. Out of desperation to see her father before he passed away, the applicant travelled back to Iran with her daughter. Her husband travelled to Iran some eight months later and stayed three months. They travelled back to Australia together.
The applicant admits having applied for an Iranian passport for herself and her daughter from the Iranian Embassy in Canberra. She claimed that she understood that Iran has a list of individuals who are wanted by authorities, and that these individuals are “blacklisted” and flagged if they attempt to travel in or out of Iran. The Tribunal asked the applicant how she knew she was on such a list. The applicant did not know. The applicant claimed that her [Relative A] paid an official at Tehran Imam Khomeini Airport the sum of USD$[amount] to ensure that their names were removed from the blacklist, and that they could cross the Iranian border without protection.
The Tribunal asked the applicant whether she had any evidence of this payment. The applicant explained that she had no evidence of the payment, nor of which properties had allegedly been sold in order to raise those funds. She also claimed that due to the deterioration of her relationship with her husband, she was unable to obtain that information. The Tribunal noted, however, that the relationship with her husband had not deteriorated at the time of the interview with the delegate and noted that the claims in relation to paying a bribe had not been raised with the delegate.
The Representative had provided some extracts of Country Information that she claimed supported the applicant’s contention as to the existence of blacklists, and the ability to pay bribes to be removed from such blacklists.
The Representative quoted the DFAT Report which provided “Passport control checks are sophisticated in Iran. An outstanding Warrant for Arrest would not go undetected at the main airports but it is theoretically possible that an individual could convince an airport officer to allow them to proceed.”
The Tribunal notes that the applicant stated that the person who took the USD$[amount] bribe was working in the Ettelaat section of Tehran International Airport and this person provided guidance on when to apply for the Iranian passports and when they should buy the ticket and travel to Iran. The applicant claims that she was told that her name would be removed from the blacklist and they would be able to safely enter Iran for as long as that person was working in that position which would be for at least five years. She further states that she was instructed that it was their responsibility to remain concealed while in Iran, which is what she says they did.
The Tribunal notes, with respect, that the DFAT Report does not appear to contemplate such advance payment and advice.
However, the Tribunal does acknowledge additional Country Information provided by the Representative from the Amnesty International’s International Secretariat which noted one case it had heard of after 2009, in which a woman was able to leave the airport through paying USD$10,000 in advance.
The Tribunal noted its concerns that that may have been one isolated incident and does not refer to the removal of names from a blacklist, rather the facilitation of passage at the airport by an evidently corrupt airport official.
The applicant also referenced other enquiries that had been made to facilitate her safe return to Iran. She spoke of a Persian man that her ex-husband knew who helped people travel to Australia. He was asked if there was a way to go back to Iran. He allegedly suggested travelling to Iraq and then travelling across the border, but it was acknowledged that that would not be safe for a woman and a child and was consequently ruled out. The applicant then referred to another Persian man who suggested to them that they pay a bribe to be removed from the blacklist. The applicant stated that even though the bribe had been paid, she did not feel safe in the airport.
The Tribunal discussed its concern with the applicant that she had not referred to the fact of having paid a bribe to be removed from a blacklist in response to the NOICC. The applicant explained that she had retained a Persian lawyer who spoke Farsi and that she did explain to him about the bribe, but that he did not consider it relevant to reference in the response to the NOICC. According to the applicant, the lawyer believed that it was more important to apologise to Immigration for not obtaining permission to travel back to Iran before the travel took place.
The Tribunal expressed its opinion to the applicant that it found such advice surprising and unlikely.
The Tribunal was further concerned that notwithstanding that the applicant had engaged a second lawyer to assist with the NOICC, it was still not referenced in the response to the NOICC. The second lawyer instead included it in relation to the ITOA and provided a copy of the ITOA submission to the delegate. The applicant explained this oversight by stating that she had just given birth to her son who was premature and that he required many visits to hospital and that as a consequence she was not thinking rationally at the time of preparing the response to the NOICC and realises now that she should have been more diligent and not allowed the Persian lawyer to submit an incomplete and brief response.
The Tribunal asked the applicant about her subsequent visits to Iran.
The applicant replied that she returned to Iran on a second occasion for a period of five months as she was concerned about the wellbeing of her mother who had become depressed and unwell after the death of the applicant’s father. She claims that having just lost her father, she did not want to lose her mother as well and that this was the motivation for returning.
The applicant said she returned to Iran on a third occasion as her mother’s depression was getting more severe and that doctors were advising that this was affecting her life expectancy. The applicant claims that she tried to get a visitor visa for her mother to come to Australia, but it was refused and so, out of desperation to see her mother, she visited Iran again. She has stated that she has not returned to Iran since that third visit.
The Tribunal noted the applicant’s claim in relation to her Christianity. It further notes that the applicant was granted a Protection visa on 3 July 2012 and that the applicant converted to Christianity after that time. [in] December 2012, the applicant was baptised at [Church 1].
The applicant claims that if she returned to Iran, she would face the prospect of persecution for her religious beliefs. She claims that if she returned to Iran, it would become apparent to her community that she was not observing the religious practices of Islam. She claims that this would expose her to both legal and societal pressures.
The Tribunal was troubled by the applicant’s claims in relation to Christianity. It notes that no reference was made to these claims during the POE process, but they were then made during the IPA process. Again, there was no reference to any religious claims in the response to the NOICC. During the IPA process, the applicant claimed to have been baptised [in] February 2012, but in her written statutory declaration in response to the ITOA letter, she claimed to have been baptised [in] December 2012.
The Tribunal noted from the applicant’s Representative’s submission that the applicant does not presently attend church regularly as her church is the same one attended by her ex-husband and she fears that regular attendance would put her at risk of harm. Nevertheless, the applicant is still committed to private devotion and regularly prays, reads scriptures, listen to Christians speak about their faith through audio books in her car and observes Christian practices. She states that she is also passing on her faith to her children.
Evidence included a photo of a prayer table set up in their home. Such photos were taken in 2014 and 2016.
During the hearing, the Tribunal asked the applicant whether her two children are Christians. She replied that they are not. This concerned the Tribunal as it noted that her daughter was born around about the time that the applicant claims to have been baptised as a Christian and certainly her son was born sometime after that date. The Tribunal noted that the applicant’s husband also claimed to have converted to Christianity and indeed attended the same church.
The Tribunal asked the applicant what it is that she likes about Christianity. She replied that she likes the tradition of prayer and credits her beliefs with the miracle that she has survived. She states she has a Persian Bible and that she watches religious programs and listens to audio books.
The Tribunal discussed the applicant’s relationship with her husband. It noted the Representative’s submission that in the time since the applicant’s visa was cancelled, her relationship with her husband has broken down. The submission notes that the husband had been the subject of a number of Domestic Violence and Temporary Protection Orders for physical violence against the applicant, the first of which was imposed [in] September 2014. The couple separated in August 2016 but continued to reside together in the same apartment. In June 2017, the applicant moved out of their shared apartment as the violence had escalated and she had begun to fear for her life. She states that she engaged with [a support service], who helped her find a townhouse and relocate. The submission goes on to state that the husband is currently subject to a Temporary Protection Order that prohibits him from coming within 100 metres of the applicant. It states the Order commenced in December 2017 and originally named the applicant and her children, but it was subsequently amended in August 2018 to exclude references to the children in order to facilitate contact by the husband with the children.

The submission goes on to state that the applicant and her husband currently had in place a non-enforceable Parenting Plan. The submission states that she is primarily responsible for the care of the two children, that the husband is not paying maintenance and he has had contact with the children on only a few occasions since the applicant and the children left their shared residence.
In evidence, the applicant confirmed that she moved out [in] June 2017. She states that she lives at [Suburb 1] and believes that her husband lives at [Suburb 2]. She maintains that he is not contributing to child support.
The applicant states that she intends to obtain a divorce from her husband. She is of the view that that divorce will not be recognised in Iran.
She states that her fear is that if she is returned to Iran, she will not be able to obtain a divorce as females are not permitted to originate divorce in Iran. She states that divorce is more restricted in Iran and she holds grave concerns that if her husband originates the divorce, she will lose custody of the children completely. She says that in the event of divorce, male guardianship is ordered for male children over two years old and female children over seven years old.
The Tribunal asked the applicant about her relationship with her family in Iran. She stated that she has problems with her ex-husband’s family. She stated that the parents of her ex-husband have rung her to abuse her about her complaining to the police about her ex-husband. She states that the family have threatened to go to court in Iran to take the children off her and that they will go to the Iranian Embassy. She states that if she returns to Iran, now being separated from her ex-husband, she fears physical violence from her husband’s family, especially his father.
The applicant also spoke of an instance when her ex-husband took the children in breach of the Parenting Agreement. She states that he picked them up from the childcare centre without her authority and that she had to go to the [named] Police Station to make a complaint and to have the children returned.
The Representative made a submission in relation to the applicant being a divorced, educated woman with children. She stated the applicant will suffer emotional violence, and will be seen as a bad woman and will have no male support in Iran.
The Tribunal asked the applicant where her mother lived. She replied that she lives in Ahvaz.
The Tribunal asked where her husband’s family lived. They live in Esfahan which she states is about 15 hours away.
The Tribunal asked the applicant about her community involvement in Australia. She replied that she does not belong to any community group, simply because she is working full-time and has two children. She claims that she does, however, do tuckshop at the children’s school and does some fundraising at work by giving donations and promoting causes.
The applicant stated that her daughter is in [grade] at school and participates in [specified sports]. She stated that her son is at pre-school and participates in [sport].
The Representative submitted that the applicant has made a life for herself and her children in Australia, and she has consistently proven to be a productive member of the community. While in Australia, the applicant has completed a [qualification] and is currently completing a [further qualification]. She has one unit to complete which involves workplace learning which should be completed next semester. The Representative states that she is a full-time mother and is employed full-time and is very proud that she is also close to completing a Degree.
The applicant is currently employed by [Employer 1] at [a specified] level working as [an Occupation 1]. The submission notes that the two children are Australian citizens and they have settled into school and childcare in [Suburb 1]. The submission states that moving to Iran would be highly disruptive for the children, who are well settled in Australia. It notes that the children have no ties to Iran, though the Tribunal noted that the daughter has lived [a specified period] of her short life in Iran.
The submission notes in relation to her Christianity that whilst she was in Iran for 16 months, she was able to get around many of the difficulties assumed by her religious conversion as she was able to temporarily hide her presence and her religion, but in the long term, it would present many challenges. The submission refers to Country Information that indicates religious converts can face difficulties obtaining official documents, making purchases and interacting with landlords, schools and employers. It also notes that the applicant may be forced to sign a commitment to return to Islam. The submission goes on to state that the applicant would be unable to manifest her Christian beliefs openly for an indefinite period of time and this represents an impermissible restriction on her freedom of religious expression.
As a divorced woman, the applicant will also face significant hardship. Single women are likely to face societal harassment for certain activities, including travelling alone. Divorce is widely viewed as shameful and Iranian law does not explicitly condemn domestic violence. The submission notes that if the applicant and her husband were returned to Iran, the applicant would have little legal recourse to protect her from violence and harassment perpetrated against her by her husband and she would face pervasive social discrimination for her status as a divorcee and single woman.
Finally, the submission notes that Iranian law places women at a distinct disadvantage in family law matters and custody disputes. According to Article 1169 of the Iranian Civil Code, a mother has preference in custody arrangements regarding boys under the age of two and girls under the age of seven, however, the father maintains legal guardianship rights over the child in many important aspects and after the child reaches the age of two for boys and seven for girls, the father is generally granted custody. There is some scope for the Court to intervene and determine custody arrangements, however, the reality of the legislative framework creates obstacles for women seeking to claim custody of children and the Court often preferences fathers. The result of this legal system is that the applicant would either live with her ex-husband despite the risk of violence against her, or risk losing custody and access to her children. The submission concludes that either situation would undoubtedly be traumatic for the applicant and her children.
Conclusion on non-compliance
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.
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)
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]
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.’
It is clear that the applicant has demonstrated ability to freely enter and depart Iran on three occasions and to cumulatively have lived there for approximately 16 months in total and with her infant daughter. It is apparent to the Tribunal that she has managed to do so without any apparent issues in Iran. She was not detained or apprehended by the Iranian authorities when she arrived at, and departed, Iran airports where it is accepted that entry and exit procedures are sophisticated and where it is acknowledged that a person with an adverse profile would be unlikely to avoid detection.[9]
[9] Danish Immigration Service 2009, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc: Fact finding mission to Iran 24th August – 2nd September 2008, April, 87E00CD0EB83/0/iran_report_final.pdf?bcsi_scan_80CA22F9AD71C623=0&bcsi_scan_filename=iran_report_ final.pdf
The applicant claims that her [Relative A] paid a USD$[amount] bribe, which he sourced from the sale of properties, to have her name removed from the airport blacklist. The applicant has no evidence of the payment, nor of the sale of the said properties.
The applicant’s claim is consistent with an explanation provided in a submission made in connection with her ITOA. However, there was no reference to such payment of a bribe to have her name removed from a blacklist in response to the NOICC. Furthermore, the applicant has not explained how she knew she was on any such blacklist.
The Tribunal is satisfied that her claims relating to the payment of a bribe have been fabricated by the applicant and her husband at the time of them addressing the ITOA, and were so fabricated to overcome the Department’s concerns about her repeated travel to Iran. The Tribunal has grave concerns about the claim that her name could be removed from the blacklist in such a way as to facilitate multiple entries and exits over a period of five years whilst a particular employee was in a specified position. Whilst one piece of Country Information acknowledges that one woman was able to leave the airport through paying USD$10,000 in advance, no Country Information has been adduced to support the applicant’s contention that a payment could be made in advance to cover multiple entries and exits over a defined period.
The Tribunal is satisfied that the applicant does not hold the adverse political profile that she claimed in her Protection visa application.
Furthermore, the applicant applied for her Iranian passport from the Iranian Embassy in Canberra about six months after the receipt of her Protection visa. The issue of such Iranian passport would alert the Iranian authorities to her potential return to Iran and would have heightened Iranian authorities’ awareness of her and her travel intentions. Coupled with the actual multiple returns to Iran clearly demonstrates to the Tribunal that the applicant did not genuinely believe that she was of adverse interest to the Iranian authorities and that she did not fear them.
In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in her Statutory Declaration are serious.
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 on three occasions for twelve months and then five months and finally for five weeks, as the basis for finding the applicant had provided incorrect information in her Protection visa application about her fears, risk and profile in Iran.
On the evidence before it, and it is for the reasons set out above, the Tribunal finds 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?
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).
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.
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
The applicant claimed in her Protection visa application that she would be harmed or raped by the Ettelaat or the Iranian government if she returned to Iran because she was known to them because of her political activities in supporting an opposition candidate.
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 her statement and Protection visa application. Despite her claimed fears, the applicant travelled to Iran three times, departing Australia [in] January 2013, [February] 2014 and [March] 2015, she remained in that country without hindrance or harm from the Iranian authorities and returned to Australia without incident.
The content of the genuine document (if any)
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
The decision to grant the applicant her protection visa was based on her meeting the definition of “refugee” within the meaning of the Refugees Convention and the relevant provisions of the Act and she was found to be a person to whom Australia owed protection obligations.
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 she had been given incorrect answers about her claims in her application for the visa.
The circumstances in which the non-compliance occurred
Upon arrival in Australia via Christmas Island, the applicant was transferred to Brisbane. The applicant completed a protection visa application in Brisbane with the assistance of a Migration Agent, after a finding by the Independent Protection Assessment delegate. The Tribunal noted that the applicant’s claims in her protection visa application largely followed the findings of the Independent Protection Assessment delegate.
The present circumstances of the applicant
The Tribunal noted that the applicant now has [an age] year old daughter and [age] year old son.
The applicant advised the Tribunal that she was working in [Employer 1] in its [specified section]. She further advised that she and her husband were now separated and would be seeking divorce. She claimed that she lived at [Suburb 1] and her husband lived at [Suburb 2]. The Tribunal asked the applicant whether she was performing any community work at present. The applicant replied that she was not presently doing so as she was working full-time and had full-time care of two children.
The Tribunal notes that the applicant claims to have converted to Christianity since the POE process. It notes her baptism at [Church 1] in December 2012.
The Tribunal notes the very detailed submission made by the applicant’s former Representative during the ITOA process. It also notes the letters of support provided during that process.
The Tribunal has the strongest reservations about the applicant’s claims to a genuine and ongoing commitment to Christianity.
The applicant would appear to have rarely attended church since obtaining her Protection visa. Whilst she has claimed that she ceased attending church following the birth of her children, the Tribunal notes that the applicant was able to successfully hide the fact of her Christianity for 16 months whilst in Iran.
The applicant has told the Tribunal that she does not attend church but perhaps most compellingly, is that despite the Christian faith of she and her husband, neither child is a Christian. No reason was provided as to why she should have a genuine Christian faith but that her children would be of the Islam faith.
The subsequent behaviour of the applicant concerning her obligations under Sub Division (c) of Division 3 of Part 2 of the Act
The Tribunal noted that the applicant, despite having received a Protection visa by the Australian Government and receiving Australian travel documents, had nevertheless claimed to have sought out and obtained an Iranian passport to use for international travel.
Any other instances of non-compliance by the applicant known to the Minister
The applicant advised that there had been no breaches of her visa terms.

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
The Tribunal notes that the applicant was granted a Protection visa in 2012, and that as such, it has been around seven years since the non-compliance. The applicant has not returned to Iran since 2015 and has been residing exclusively in Australia for around four years. The Tribunal notes that the applicant’s visa was cancelled in June 2017 and that two years have since elapsed. The applicant has stated that the cancellation of her visa was causing her great distress. She said it is also impacting on her health.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant advised that she has not breached any law, not even a traffic offence.
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
The applicant reiterated her inability to participate in community work due to working full time and having full time responsibility for two children.
The Tribunal accepts that the applicant has worked and contributed to the taxation system. The Tribunal also accepts that the applicant has integrated into her community and has formed a number of close friendships.
Whether there would be consequential cancellations under s.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
The Tribunal is satisfied that the applicant’s children are entitled to Iranian citizenship.
Australia is a signatory to the Convention of the Rights of the Child (CROC), and has an obligation to ensure that in all actions concerning children, the best interests of the child is a primary consideration. The Tribunal notes this requires a decision-maker to have regard to the consequences of cancellation, including whether a child will be separated from a parent.
In the applicant’s circumstances, she will not be separated from her infant child as the outcome of the review will be the same as the outcome of the review of her husband’s application. The Tribunal acknowledges the concerns the parents have for the children in terms of the comparative freedoms the children may have in Australia, and takes that into consideration.
If the applicant’s visa is cancelled, she would be subject to s.46(1) of the Act, barring her 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, she would be subject to the s.48A(1B) bar. She 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.
The Tribunal understands that an International Treaties Obligations Assessment has been conducted in relation to the applicant and has determined that the applicant does not have a real chance of being subject to significant harm should she be returned to Iran. It has also determined that the applicant is not a person in respect of whom Australia has non-refoulement obligations.
In considering the family unity principles and the best interests of the children, the Tribunal notes that the applicant and her husband have separated and have been separated since June 2017.
This is a considerable change of circumstances since the decision of the delegate and the ITOA decision.
The Tribunal has noted the various Domestic Violence Orders and Temporary Protection Orders.
The Tribunal, having also heard the review of the cancellation of visa of the applicant’s husband, is satisfied that the husband is also committed to a course of seeking divorce.
Whilst there was some inconsistency as between the wife’s and husband’s evidence in their respective hearings as to the amount of time the husband has access to the children, the Tribunal accepts that the applicant has primary custody of the children and that the husband has agreed access to the children on weekends and if the children are sick and unable to attend school/childcare.
The Tribunal is satisfied that whilst arrangements can rarely be perfect, the applicant has custody of the children and the applicant’s husband has some access to the children. Notwithstanding what the actual arrangements may be, the Tribunal is of the view that whatever the shared access arrangements are, the fact of shared access is in the best interests of the children.
Having considered Country Information submitted by the Representative and, in particular, Article 1169 of the Iranian Civil Code, the Tribunal is not satisfied that should the applicant and her husband be returned to Iran and a divorce be obtained, that denial of custody and/or access by the applicant to the children will be in the best interests of the children. Even a risk of the applicant losing custody and access to her children is not, in the view of the Tribunal, in the best interests of the children.
Again, whilst it is not the place of this Tribunal to insert itself into the custodial arrangements of children to be determined by another Court, the Tribunal is mindful of the prevailing laws in Iran which, in its view, pose an unacceptable risk to the concept of shared custody or access by the applicant which in turn is an unacceptable risk to the best interests of the children.
Conclusion
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 her 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 her claims to be granted a Protection visa. The Tribunal is satisfied that as an Iranian citizen, the applicant would have access to the benefits and rights accruing to Iranian citizenship on her return.
However, the Tribunal notes that the applicant has resided in Australia for around eight years and this is a substantial period of time. Since arriving in Australia, she and her husband have had two Australian-born children. The applicant has no known criminal record. The applicant is highly qualified in [her occupation] and presently works for [Employer 1]. It is not unreasonable to expect that given her qualifications and international experience in working in [her occupation], she is imparting her knowledge and experience to others which will benefit a fast-growing industry sector. It is assumed that the qualifications of the applicant are such that employers such as [Employer 1] place great value on them in what would be considered security sensitive environments.
However, given all the findings herein, including the applicant’s willingness to return to Iran on three separate occasions, and for a period of 16 months, and to then attempt to deceive the Australian authorities by fabricating evidence as to how she entered and exited Iran, the Tribunal is satisfied the applicant is not a generally credible witness.
Were it not for the fact of the applicant’s separation from her husband, and the commitment to divorce by each of them, and the fact of Domestic Violence and Temporary Protection Orders having been made, the Tribunal would not have exercised its discretion in the applicant’s favour.
However, as reasoned in paragraphs 145 to 152 above, the Tribunal is satisfied that the operation of Iranian law in relation to custody and access arrangements in the event of divorce in Iran pose an unacceptable risk to the best interests of the children and it is on this basis only that the Tribunal accepts that it is unreasonable that the applicant’s visa be cancelled.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
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
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 6803

25 September 2019

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