1713354 (Refugee)

[2018] AATA 4069

1713354 (Refugee) [2018] AATA 4069 (27 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713354

COUNTRY OF REFERENCE:                  Iran

MEMBER:Alison Murphy

DATE:27 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 27 August 2018 at 11:31am

CATCHWORDS
REFUGEE – cancellation –  protection visa – Iran – bogus documentation – evidence of Iranian citizenship through his father – given incorrect information by people smugglers –any breach of non-refoulement  –  religion –  atheist – political opinion – believe in secular democracy –  no real chance of persecution – ­credibility – claims have been manufactured in an attempt to strengthen his protection claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 101, 103, 107, 109
Migration Regulations 1994 (Cth) r 2.41

CASES

AC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. According to the delegate’s decision (a copy of which was provided to the Tribunal by the applicant), the applicant arrived in Australia on 19 January 2012 and was granted a protection visa on 23 August 2012.  The protection visa was granted on the basis of claims he made in the application for a protection visa (the visa application) in which he stated among other things that he feared persecution in Iran as a stateless Faili Kurd.

3. The Department subsequently became aware of information indicating he was an Iranian citizen, not stateless as claimed in the visa application.

4. In a notice issued under s.107 of the Act dated 22 February 2017, a delegate of the Minister informed the applicant that he considered he had not complied with s.101(b) of the Act in that he had provided incorrect information in his visa application as to his statelessness, citizenship and country of nationality and his fear of persecution in Iran as a stateless Faili Kurd.

5. On 21 June 2017 a delegate of the Minister cancelled the applicant’s visa and on 23 June 2017 the applicant applied to this Tribunal for a review of the decision. 

6. The issues in the review are whether there was non-compliance in the way described in the notice sent to the applicant, and if so, whether the visa should be cancelled.  A summary of the relevant law is set out in Attachment A.

7. The applicant appeared before the Tribunal on 16 July 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. In the response to hearing invitation the applicant’s representative indicated the applicant did not require an interpreter. At the commencement of the hearing the applicant and the applicant’s representative confirmed the applicant did not require an interpreter at the hearing.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   THE SECTION 107 NOTICE

9. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

10. On the Departmental file is a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 22 February 2017 advising him his visa may be cancelled under s.109 because it appeared he may not have complied with s.101(b) (visa applications to be correct) of the Act.  The NOICC advised the applicant that he had answered questions in his visa application indicating he was stateless from birth and it was on the basis of his claims to be a stateless Faili Kurd in Iran that he was granted a protection visa on 23 August 2012. The NOICC advised the applicant that the Department had information that his father [is] an Iranian citizen and that by operation of Iranian citizenship law, the applicant is also an Iranian citizen.

11. The applicant responded to the NOICC by way of submissions lodged by his representative dated 19 March 2017. In that response the applicant conceded he had provided incorrect information in relation to his citizenship status upon his arrival to [Detention Centre 1] and at the time he lodged his application for a protection visa.

12. No issue has been raised in this review by the applicant as to the validity of this notice. Considering that document as a whole, the Tribunal is satisfied it sufficiently informed the applicant of the basis upon which the cancellation was being considered and gave him the required opportunity to respond.

13. 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?

14. 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.

15. As set out above, the NOICC advised the applicant that he had answered questions in his visa application indicating he was stateless from birth and it was on the basis of his claims to be a stateless Faili Kurd in Iran that he was granted a protection visa on 23 August 2012.

16. In his response to the NOICC dated 19 March 2018, the applicant conceded he had provided incorrect information in relation to his citizenship status upon his arrival to [Detention Centre 1] and at the time he lodged his application for a protection visa.  At hearing the applicant confirmed he had given incorrect information in his protection visa application when he claimed that he and his family were stateless. 

17. As the applicant concedes he gave incorrect information about his citizenship and that of his family in his protection visa application, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

18. 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).

19. In exercising this power, the Tribunal must consider the applicant’s response 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.

20. I have considered the applicant’s response to the s.107 notice about non-compliance, his evidence at hearing and the post hearing submissions of his representative. I have also had regard to the prescribed circumstances set out in regulation 2.41 of the Migration Regulations 1994 and to the other matters required to be considered as a matter of government policy as set out below.

21. The correct information: I consider the correct information is that the applicant is an Iranian citizen of Feili Kurd ethnicity, as are his parents and siblings.

22. The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the section 107 notice relied solely on section 101, not on section 103 (relating to bogus documents).

23. 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: As referred to in the delegate’s decision, a copy of which was provided to the Tribunal by the applicant, the decision to grant the applicant a protection visa was based on his claim that he was a stateless Faili Kurd. In his response to the s.107 notice, the applicant acknowledged the decision to grant him the protection visa was based on incorrect information.

24. I accept the applicant is in fact a Faili Kurd and I note he made other claims for protection, including that he was perceived as being a follower of the Furquan religion. However I consider his claim to be a stateless Faili Kurd was central to the decision to grant him a protection visa and that decision was based at least in large part, on the incorrect information.

25. The circumstances in which the non-compliance occurred: The incorrect information about the applicant’s identity and statelessness was provided by the applicant in his visa application, an accompanying statutory declaration and at an interview conducted in respect of his protection claims. At hearing before me, the applicant stated he had given the incorrect information about his statelessness because he was told to by the people smugglers. In the response to the s.107 notice, the applicant that when he arrived [in Detention Centre 1] he was young and inexperienced and claimed to be stateless on the basis of the people smugglers’ advice, being scared he would be kept in detention for a few months before being deported back to Iran.

26. The present circumstances of the visa holder: The applicant gave evidence he purchased a house in [Australia] and is paying off a mortgage.  He lives with two friends and works casually [in a certain role at a workplace] and in [another workplace].  He is not married and has no children in either Australia or Iran.

27. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act:

28. According to the delegate’s decision (a copy of which was provided to the Tribunal by the applicant), the visa holder made no efforts to correct the incorrect information prior to being issued the s.107 notice dated 22 February 2017.

29. In his response to the s.107 notice dated 19 March 2017, the applicant concedes that he had provided incorrect information but states that he responds to the NOICC in full honesty and states that as a hard working person who has become mature after living independently in Australia, he now understands the seriousness of provided incorrect information and is truly remorseful. At hearing the applicant told me he regretted providing the incorrect information, the consequences of which had totally changed his life.

30. Any other instances of non-compliance by the visa holder known to the Minister: In his response to the s.107 notice dated 19 March 2017, the applicant states there are no other instances of non-compliance and he has otherwise fully complied with his visa conditions. The delegate’s decision does not refer to any other instances of non-compliance. On the basis of the evidence before me, I find there are no other known instances of non-compliance by the applicant.

31. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his visa application in 2012 and approximately six years have elapsed since then.

32. Any breaches of the law since the non-compliance and the seriousness of those breaches: On the basis of the evidence before me the applicant has not breached the law since the relevant non-compliance, or at any time since his arrival in Australia.

33. Any contribution made by the holder to the community: In his response to the s.107 notice dated 19 March 2017, the applicant stated he had not engaged in any volunteering or community work, however he had tried hard to be a good citizen by working hard, paying taxes and respecting Australian values. At hearing the applicant stated he would like to do volunteer work, but his work commitments prevented it although every Saturday and Sunday he worked one hour for free. He used to support a child through [a charity], but is not able to afford it any longer. He also used to help with interpreting in the refugee community on an informal basis.

    Other factors to be considered

34. While the above 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.

35. Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations under relevant international agreements:

    The applicant’s fear of harm as a Faili Kurd

36. The applicant claims he will be harmed if returned to Iran as a Faili Kurd.  As set out above, I have found the applicant is an Iranian citizen. I have accepted the applicant is a Faili Kurd but as I discussed with the applicant at hearing, DFAT reports that Iran’s laws do not discriminate on the basis of ethnicity. DFAT acknowledges that official and societal discrimination against ethnic minorities does occur in Iran, although it states those experiences are not uniform. DFAT is not aware of instances where Faili Kurds have been singled out for discrimination or where Faili Kurds who are also Iranian citizens have faced adverse attention specifically because of their ethnicity. DFAT reports that Faili Kurds who are Iranian citizens have the same access to services and employment as other Iranian citizens[1].

    [1] Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 June 2018 at 3.13 and 3.14

37. In response to this information the applicant stated that Faili Kurds are discriminated against and could not become politicians. They are laughed at if they wear their traditional clothes and face discrimination because of their language. Their cities are poorer, even though they are rich in oil and gas.

38. I accept that Faili Kurds and other ethnic minorities in Iran face a level of official and societal discrimination in Iran, however I do not accept the discrimination described by the applicant rises to the level of serious harm for the purpose of s.5J(5) or significant harm for the purposes of s.36(2A).

39. For the above reasons, I do not accept on the evidence before me that there is a real chance that the applicant will suffer persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act or a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act, because he is a Faili Kurd, if he returns to Iran now or in the reasonably foreseeable future.

    The applicant’s fear of harm as an atheist

40. At hearing the applicant claimed he would face harm if returned to Iran because of his religious beliefs. He stated in Iran he was a Zoroastrian and a Muslim, but he had now completely changed. When I discussed with him that the delegate’s decision recorded he had claimed to be imputed as being of the Furquan faith at the time he left Iran, the applicant stated this was the faith of the man [with whom he worked] and he was with them too. He stated that since arriving in Australia, he had totally changed his beliefs and he is now an atheist and doesn’t follow any religion or believe in anything.

41. He said all his friends knew he didn’t believe in anything and followed Richard Dawkins, believing religion poisoned everything.  He said he had [an atheist tattoo] and had made many facebook posts about his atheist religious beliefs for the past two years. He stated if he returned to Iran, he would disappear at the airport because of his religious beliefs. 

42. At hearing I asked the applicant about his atheist tattoo. Initially his representative used his laptop to show me a photograph of a tattoo said to be posted on the applicant’s facebook page. The applicant interrupted and said the photograph his representative was showing me was not in fact of his tattoo. Rather he showed me a tattooed symbol on his [body], stating he had obtained the tattoo a week earlier and the symbol was an atheist symbol.  I noted there was no redness, scabbing or irritation on his skin which seemed strange for such a large tattoo applied only a week earlier and asked him if it was a temporary tattoo. The applicant maintained the tattoo was a permanent tattoo. After the hearing the applicant’s representative provided country information [about the significance of that symbol].

43. I put to the applicant that he did not raise any claims about his atheism in his response to the s.107 notice and the Tribunal hearing appeared to be the first time he had suggested he had changed his religious beliefs or feared harm in Iran because of his atheism. I asked the applicant why that was and why he had obtained an atheist tattoo a week before the hearing. The applicant said he had been undertaking online research about atheism and posting on social media for two years prior to getting the tattoo and he hadn’t told his representative about these claims at the time of his response to the s.107 notice because his representative is also Iranian and may be a Muslim.

44. In a post-hearing statement lodged 7 August 2018 the applicant elaborated on his new claims, stating that since coming to Australia and having access to the internet he had read and watched several articles about atheism. He now considers himself an atheist and everyone who knows him is aware he is an atheist.  He now believes in secular democracy and the separation of state and religion and if he returns to Iran, he will not be able to hide his opinion and views on religion as these have become an integrated part of his identity.  He views on religion and politics will be considered to be anti-regime in Iran.  In that statement he referred to documents he claimed proved the tattoo was done a week before the hearing as being attached to his statement. On 8 August 2018 a Tribunal officer contacted the applicant’s representative and advised that the documents referred to in the statement were not attached. On the same date the applicant’s representative advised that the applicant was obtaining documents from the tattoo shop that afternoon and they would be provided when available. As at the date of the Tribunal’s decision, those documents have not been received.  Other than the photo of an atheist tattoo shown to me at hearing and referred to above, no other material from the applicant’s facebook account or any other social media account held by the applicant has been provided to the Tribunal.

45. In considering the applicant’s new claims, I note his evidence that he has held atheist beliefs for two years, but did not tell his representative or the department before the primary decision was made on 21 June 2017. His explanation as to why he did not raise these claims and evidence before the primary decision was because his representative is an Iranian and may be a Muslim. 

46. I do not accept the applicant’s explanation. In making this assessment I note my significant concerns about the applicant’s credibility given he has admitted providing false information to the department in his protection visa application. I am further concerned that he claims to have obtained an atheist tattoo only a week before the Tribunal hearing, despite his evidence he has held those beliefs for two years. While he claimed at hearing that he had been posting on social media about his atheist beliefs for two years, he has not submitted any evidence of his social media, other than the photo of a tattoo that does not belong to him discussed above.  His post-hearing statement suggests only that he changed his religious views after reading and watching several articles on atheism on the internet. The lack of detail in his claims causes me further concern as to their credibility.

1. On the evidence before me, I do not accept the applicant has genuinely changed his religious beliefs or that he is now an atheist, rather I consider these claims have been manufactured in an attempt to strengthen his protection claims. It follows that I do not accept the applicant will seek to practise or promote his atheist beliefs if he returns to Iran, now or in the foreseeable future. For these reasons I do not accept there to be a real chance the applicant will be perceived by the Iranian authorities to have changed his religious beliefs or harmed for that reason if he returns to Iran. It follows that I do not accept on the evidence before me that there is a real chance that the applicant will suffer persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act or a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act, because of his atheist beliefs, if he returns to Iran now or in the reasonably foreseeable future.

2. While I have not accepted the applicant genuinely holds atheist beliefs, I accept the applicant now has an atheist symbol tattooed on his [body]. As I discussed with the applicant at hearing, the skin around his tattoo showed no signs of redness, scabbing or irritation despite being only a week old which caused me to wonder whether the tattoo was a temporary rather than permanent. Despite advising the tribunal that he had provided or intended to provide documentary evidence demonstrating that he had a permanent tattoo applied a week before the hearing, that information has not been provided. In such circumstances I remain doubtful that the tattoo on the applicant’s [body] is a permanent one.  However as I cannot be certain of this, I give him the benefit of the doubt and accept for the purposes of this assessment that it is a permanent tattoo. 

3. As I have not accepted the applicant has genuinely changed his religious beliefs or that he is now an atheist, I do not accept the tattoo reflects his genuine religious beliefs.  In assessing whether there is a real chance or a real risk he will face harm for reasons of this tattoo if he returns to Iran, I note the tattoo is on the applicant’s [body] and would normally be covered by his clothing. DFAT reports it is common to see young men with tattoos on Iranian streets[2]. For these reasons I do not accept there to be a real chance or a real risk the applicant’s tattoo will come to the adverse attention of the Iranian authorities or that he will face harm from any person for that reason if he returns to Iran. It follows that I do not accept on the evidence before me that there is a real chance that the applicant will suffer persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act or a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act, because of his atheist beliefs, if he returns to Iran now or in the reasonably foreseeable future.

   [2] Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 June 2018 at 3.85

4. As noted above, the applicant claims to have posted about his atheist beliefs on facebook over the last two years. At hearing the applicant’s representative showed me an image on the applicant’s facebook page that he believed to be the applicant’s tattoo, but I was advised by the applicant that this image was not in fact of his tattoo. No other evidence has been provided to the tribunal or the department that would support the applicant’s claim at hearing that he has been posting about his atheism on social media over the past two years.  However as it would appear that there is at least one image of an atheist tattoo on the applicant’s facebook page (even if the photo is not of the applicant’s tattoo), I consider it appropriate to assess the applicant’s claims on the basis he may have posted images relating to atheism on his facebook page.

5. As I have not accepted the applicant has genuinely changed his religious beliefs or that he is now an atheist, I do not accept those facebook posts reflect his genuine religious beliefs. In assessing whether there is a real chance or a real risk he will face harm for reasons of these facebook posts if he returns to Iran, I give weight to the DFAT advice discussed with the applicant at hearing. DFAT reports that the Iranian authorities pay little attention to failed asylum seekers on their return to Iran and have little interest in prosecuting them for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government, as heavy internet filtering means most Iranians will never see them[3]. In light of this information, I do not accept the applicant’s facebook posts about atheism would bring him to the attention of the Iranian authorities. For these reasons I do not accept there to be a real chance that the applicant will suffer persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act or a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act for reasons of any atheist posts on his facebook page, if he returns to Iran now or in the reasonably foreseeable future.

   [3] Ibid at 5.25

6. As I have not accepted the applicant has changed his religious beliefs to atheism, I have considered whether he may face harm in Iran for reasons of the religious beliefs he has previously claimed to have held. The delegate’s decision records he claimed in his protection visa application to be imputed as being of the Furquan faith due to his association with his employer. At hearing the applicant stated this was the faith of the man whose farm he worked on, but denied that he now holds any such religious views. Given the applicant’s only association with the Furquan faith is through an employer whom he worked for a decade ago and he denies currently holding any such religious views, I do not accept on the evidence before me that the applicant holds or will be imputed to hold Furquan religious beliefs if returned to Iran. It follows that I do not accept that there is a real chance that the applicant will suffer persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act or a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act, for reasons that he holds or will be imputed to hold Furquan religious beliefs, if he returns to Iran now or in the reasonably foreseeable future.

7. As noted above, at the Tribunal hearing the applicant stated that in Iran he was a Zoroastrian and a Muslim, although he claims he no longer holds those beliefs.  I accept he may have held such religious beliefs in the past and that he no longer holds them. He does not suggest he fears harm in Iran because he no longer holds Zoroastrian beliefs and I do not accept there to be a real chance or a real risk he will be harmed for this reason. 

8. The applicant claims he will face harm in Iran because he no longer follows Islam and I accept that he is a person born into the Muslim faith in Iran who no longer observes the religious rituals of that faith.  At hearing the applicant stated that people had to be Muslim in Iran because non-Muslims couldn’t get a good job or have a good life in Iran as they were always discriminated against.

9. At hearing I discussed with the applicant DFAT’s advice that it is highly unlikely the Iranian government would monitor religious observance by Iranians, for example whether a person regularly attends mosque or participates in religious occasions such as Ashura or Muharram.  DFAT assesses that it would generally be unlikely that it would become known that a person was no longer faithful to Shia Islam as perceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts at proselytization, attendance at a house church or via informants[4].  For the reasons set out above, I have not accepted the applicant now holds atheist religious beliefs or that he would seek to promote or practise those beliefs if returned to Iran.  On the basis of the DFAT advice I do not accept there to be a real chance or a real risk that the applicant will be perceived by the Iranian authorities or any other person to have renounced Islam or to be an apostate simply because he no longer observes the rituals of the Muslim faith. 

   [4] Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 21 April 2016 at 3.55

10. It follows that I do not accept that there is a real chance that the applicant will suffer persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act or a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act, for reasons of his actual or imputed religious beliefs, if he returns to Iran now or in the reasonably foreseeable future.

    Political opinion

11. I have considered the applicant’s claims that he now believes in secular democracy and his views on politics will be considered anti-regime in Iran.  For the reasons set out in detail above, I have significant concerns about the applicant’s credibility.  The timing of the applicant’s claims about his claimed political opinion causes me further concern – these claims were first made in written submissions after the Tribunal hearing.  On the evidence before me I am not satisfied the applicant genuinely holds such political views.

12. For these reasons I do not accept there to be a real chance or a real risk the applicant’s political views will come to the adverse attention of the Iranian authorities or that he will face harm from any person for that reason if he returns to Iran. It follows that I do not accept on the evidence before me that there is a real chance that the applicant will suffer persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act or a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act, for reasons of his political opinion, if he returns to Iran now or in the reasonably foreseeable future.

    Fear of harm as a failed asylum seeker

13. At hearing the applicant confirmed that he departed Iran on his own genuinely issued Iranian passport which he applied for through the usual processes and which was taken from him by the people smuggler. I accept that as the applicant has been in Australia for six and a half years and no longer has his Iranian passport, he may be identified by the Iranian authorities as a failed asylum seeker/ returnee from a western country in the process of return. 

14. At hearing I discussed with the applicant DFAT’s advice that international observers report that Iranian authorities pay little attention to failed asylum seekers/ returnees on their return to Iran and have little interest in prosecuting them for activities conducted outside Iran, including in relation to protection claims[5]. The applicant disagreed with that information, stating he didn’t think that anyone went back to Iran from western countries and in any case, his religious and politic Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 June 2018 at al activities in Australia meant that he couldn’t return. However I give weight to the DFAT information and I do not there to be a real chance the applicant will suffer persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act or a real risk he will suffer significant harm as defined in subsection 36(2A) of the Act for the reasons that he is a failed asylum seeker/ returnee from a western country.

    [5] Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 June 2018 at 5.25

15. For the reasons given above, I do not accept the applicant’s removal from Australia would be in breach of Australia’s non-refoulement obligations under relevant international agreements.

    Other matters

16. I have considered whether there are any mandatory consequences of the visa cancellation. I accept that as a consequence of the cancellation of his visa the applicant will be unable to make a further application for a protection visa and he will become an unlawful non-citizen and liable to be detained and removed from Australia. I consider however that as an Iranian citizen he will be able to return to Iran and I do not accept that indefinite detention is a likely consequence of the cancellation decision. In this case there will be no consequential cancellations under s.140 of the Act and for the reasons set out above, I have found the applicant’s removal from Australia would not be in breach of Australia’s non-refoulement obligations under relevant international agreements.

17. I accept the applicant does not wish to return to Iran and that returning to Iran will cause him some degree of hardship, however in the circumstances of this case I consider that other considerations outweigh the applicant’s desire to remain in Australia.  I give weight to my finding the applicant’s incorrect information that he was a stateless Faili Kurd was central to the decision to grant him a protection visa and that decision was based in large part on the incorrect information he provided.  As I discussed with him at hearing, I consider that had the correct information been known he may not have been found to engage Australia’s protection obligations and I consider it is inappropriate that he should benefit as a result of this incorrect information.  Having given careful consideration to all the relevant circumstances, I have concluded that the applicant’s visa should be cancelled.

    CONCLUSIONS

18. 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 be cancelled.

    DECISION

19. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

    Alison Murphy
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    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.

    If the Tribunal finds that there was non-compliance in the way described in the section 107 notice the Tribunal must proceed to consider whether to exercise the discretion to cancel the visa under subsection 109(1). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the section 107 notice and it must have regard to the prescribed circumstances set out in regulation 2.41 of the Migration Regulations 1994. These are as follows:

    ·     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.

    Whilst 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: Minister for Immigration and Citizenship 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 Procedures Advice Manual (‘PAM3: Act – Visa cancellation - General visa cancellation powers - (s109, s116, s128, s134B and s140)’). This policy requires that delegates should also consider matters such as whether there are persons in Australia whose visas would, or may, be automatically cancelled under section 140 of the Migration Act, whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation and whether there are mandatory legal consequences to a cancellation decision.

    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.