1717486 (Refugee)
[2020] AATA 5605
•13 November 2020
1717486 (Refugee) [2020] AATA 5605 (13 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1717486
COUNTRY OF REFERENCE: Iran
MEMBER:Michael Hawkins
DATE AND TIME OF
ORAL DECISION AND REASONS: 13 November 2020 at 9:55 am (QLD time)
DATE OF WRITTEN RECORD: 1 December 2020
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 01 December 2020 at 1:20pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – religion – conversion to Christianity – return visit to Iran – family bereavement – fear of arrest – fear of killing – applicant’s husband did not visit Iran – Christian conversion not revealed to family – husband’s mental illness – domestic violence – Australian divorce not recognised in Iran – decision under review set aside
LEGISLATION
Migration Act 1958, ss 100-105, 107, 109
Migration Regulations 1994, Schedule 2CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
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 1235Any 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 dependants.
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 August 2017 to cancel the applicant’s protection visa under the Migration Act 1958 (the Act).
At the hearing on 13 November 2020 the Tribunal made an oral decision with an undertaking to provide written reasons following. The following is the written record of the reasons.
STATEMENT OF DECISION AND REASONS
The delegate cancelled the visa on the basis that they believed there had been non-compliance with s.101 of the Act, in that incorrect answers were given or provided in the applicant’s application form. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 13 November 2020 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 and a decision substituted not to cancel the applicant’s Subclass 866 (Protection) visa.
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 45, 46, 47, 48, 49 and 50 of the form 866C in her application for a visa.
Recourse to the s.107 Notice of Intention to Consider Cancellation (NOICC) at folio 38 on the Departmental file [number] has particularised information deemed to be in breach of ss.101(b) of the Migration Act.
The NOICC indicates that [in] August 2011 you arrived in Australia as an Illegal Maritime Arrival (IMA) with your husband, [named] [omitted].
On 11 January 2012 the Refugee Status Assessment found you to be a whom Australia owes protection obligations.
On 18 April 2012 you lodged Form 866C - Application for a Protection (Class XA) visa in which your husband was listed as a dependent on that application.
On that application the applicant was asked the following questions in relation to your protection claims and responded with 'Refer to attachment' to each question. This attachment was the statutory declaration that you made at your Immigration Advice and Assistance Scheme (IAAAS) interview with the assistance of your agent [in] November 2011 which was also submitted with your Refugee Status Assessment (RSA):
45. What is the name of the country/s you have a fear of returning to?
You stated: 'I fear returning to Iran'
46. Why did you leave your country of nationality or if stateless, your country/s of residence?
You stated: 'I left Iran because I felt that the government and the religious leaders were the one/ and the same thing. I was unable to live my life without feeling fear and eventually made me unwell’
47. What do you fear may happen to you or your accompanying family members if you go back to your country of nationality or if stateless, your country/s or residence?
You stated: ' I believe if I return to Iran I would be killed because we have converted to Christianity. It is a crime in Iran to convert to another religion. We will be killed for sure'
48. What harm, if any, have you experienced in your country of nationality or if stateless your country/s of residence?
You stated: 'I have experience emotional torment and fear the events that have happened to me will happen again'
49. Who do you think may harm/mistreat you if you go back to your country of nationality or if stateless, your country/s of residence?
You stated: 'I believe if I return to Iran I would be a real risk of facing serious harm and death from the Islamic religious followers and their agents. '
50. Why do you think this will happen to you if you go back to your country of nationality or if stateless, your country/s of residence?
You stated: 'The authorities are the ones who are persecuting me for my belief in another religion'
The NOICC notes that on 24 April 2012, based on the information you provided, as well as meeting other relevant criteria the applicant was granted a XA-866 Protection (Permanent) visa.
The delegate noted that on 12 May 2016 the applicant lodged an application for Australian citizenship - Form 1300t Application for Australian citizenship (General eligibility). At question 34 you were asked the following:
Question 34 Have you travelled outside Australia for periods totalling 12 months or more since you were granted a permanent visa and were aged 18 years or over at the time?
You stated: Yes - I was in Iran just for [number] days'.
The delegate noted that in application for Australian citizenship the applicant submitted a certified true copy of the applicant’s Iranian passport [omitted] that was issued to her [in] 2014 by the Iranian Embassy, Canberra and noted the following:
[In] July 2014 you departed Australia for [Country 1] and stated on your outgoing passenger card that you intended to travel to Iran for [number] days.
[In] October 2014 you arrived in Australia from [Country 1] and stated to departmental officers upon arrival that you had travelled to Iran for 11 weeks.
On 2 December 2016 the Department contacted you to obtain your current contact details regarding correspondence relating to your XA-866 Protection visa.
On 5 December 2016 you contacted the Department with the assistance of an accredited Farsi interpreter [omitted] to enquire what the correspondence related to. In that conversation you were advised that you would receive a Notice of Intention to Consider Cancellation (NOICC) of your XA-866 Protection visa.
During this conversation you queried what to include in your response and further stated that you had travelled to Iran to visit your dying father.
Since the grant of your protection visa you have voluntarily travelled to and spent an extended period of time in Iran ([number] days) without any apparent issue, the country from which you sought protection. I consider this behaviour is not consistent with your claimed adverse religious profile as well as your claims of fear of return to Iran as declared by you in your protection visa application and suggest that the claims that you made were incorrect.
Your Protection visa was granted on the basis that you satisfied the minister that you engaged Australia's protection obligations under the Refugees Convention. You have consistently maintained that you will be persecuted in Iran including that you will be killed due to you religious beliefs and therefore could not return. This claim was fundamental to the determination that you are a person to whom Australia has protection obligations. As the incorrect information you provided was material to this determination it appears you may not have engaged Australia's protection obligations as you did return to Iran [in] July 2014 for over two months and returned safely to Australia apparently without incident.
The delegate noted that it appeared that the applicant had provided incorrect answers/information in her application for a protection visa at questions 45, 46, 47, 48, 49 and 50 where the applicant referred to in her statutory declaration she claimed the following:
45. 'I fear returning to Iran'.
46. 'I left Iran because I felt that the government and the religious leaders were the on and the same thing. I was unable to live my life without feeling fear and eventually made me unwell. '
47. 'I believe if I return to Iran I would be killed because we have converted to Christianity. It is a crime in Iran to convert to another religion. We will be killed for sure
48. 'I have experience emotional torment and fear the events that have happened to me will happen again'
49. 'I believe if I return to Iran I would be a real risk of facing serious harm and death from the Islamic religious followers and their agents. '
50. The authorities are the ones who are persecuting me for my belief in another religion'.
The delegate concluded that the applicant’s responses to questions 45 to 50 above were incorrect because the applicant had voluntarily returned to Iran without any apparent issue after claiming that she would persecution. The delegate then stated that this suggested that the applicant did not hold the claimed adverse profile as claimed in her protection visa application.
The NOICC noted 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 45, 46, 47, 48, 49 and 50 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 section 101 (b) of the Migration Act 1958 the applicant's subclass 866 Protection visa is liable for cancellation. Further that it did not matter whether you deliberately or inadvertently did not comply as stipulated in s100 as described in their reasons.
Response to NOICC
The applicant responded to the NOICC through her representative on 7 February 2017 and 9 February 2017. The applicant provided the following response through her migration agent. On 19 May 2017 a further response was also provided to the department.
The delegate noted that the applicant through the response did not directly address the issue as to whether she agrees there was non-compliance. The delegate stated that on 7 February 2017 the visa holder has provided the following information as part of her response (in part):
“We have also got informed that after she gained her Australian Protection visa, she had returned to Iran as her husband and her in-law family asked her to go back for showing her son to her ex-husband’s father who was on the death bed. As a result she had to go back to Iran for that and soon after she reached there, her father in law passed-away and caused her staying back in Iran for his funeral and other Iranian custumal memorial gatherings for died person.”
The delegate noted that in a further submission provided to the Department on 19 May 2017 the applicant provided a translated copy of a funeral invitation for [a day in] November 2014 in relation to the passing of [her father-in-law].
The delegate noted the applicant had provided the following to support her continuing Christian faith:
·[Person A] letter dated 30 January 2017;
·[Ms A] letter dated 27 January 2017;
·[Ms B] letter dated 31 January 2017;
·[Mr C] updated letter;
·Photo of visa holder’s baptism ceremony on [a date in] January 2017; and
·Copy of baptism certificate [in] January 2017.
On 19 May 2017 the delegate noted that the applicant provided a letter from [Leader A], the Minister from the [named] Uniting Church confirming that the applicant was baptised by the Church on [a date in] January 2017.
Departmental Decision to cancel the applicant’s visa under s.109 of the Act
The Departmental delegate proceeded to cancel the applicant's subclass 866 visa in a decision made on 2 August 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 XA-866 visa application.
The delegate noted that in her response to the NOICC, the applicant provided conflicting information.
The visa holder was granted her Protection visa on the grounds that she had claimed she had converted to Christianity. The visa holder claimed that because of this conversion she could not return to Iran for fear of being imprisoned or possibly killed by the Iranian authorities.
[In] 2014 the visa holder was issued a new Iranian passport by the Iranian authorities in Australia.
[In] April 2012 the visa holder travelled to Iran for 85 days ([July] 2014 – [October] 2014) with her infant son ([Son A] [omitted]).
On 5 December 2016 the visa holder contacted the Department with the assistance of an accredited Farsi interpreter [omitted] regarding her NOICC. In that conversation the visa holder stated that she travelled to Iran to see her dying father, I note that this information was not provided in her response. Further, I note that the visa holder had attempted to sponsor her mother and father ([name] – [omitted]) for a proposed visit to Australia ([June] 2016 to [September] 2016). That visa application did not indicate any health issues being experienced by the visa holder’s father.
As part of her response the visa holder has advised that she travelled back to Iran to introduce her son to her father-in-law. The visa holder’s father-in-law passed away shortly after her arrival. I note the contradictions in the explanation for her return to Iran and I also note that the visa holder’s husband ([named]) did not travel with the visa holder when it was claimed that his father was dying. I do not consider it plausible that the visa holder would travel back to Iran to see her father-in-law while her spouse would not travel to see his own father.
I acknowledge that the visa holder has provided evidence of her having being baptised into the Uniting Church on [a date in] January 2017. Given, however, that the visa holder claimed she required Australia’s protection as a Christian convert in 2011, I consider it is unusual that she would not be baptised until nearly five years later. I also note that this Baptism has not occurred until after the visa holder has been advised by the Department that her visa is under consideration for cancellation.
The visa holder has demonstrated the ability to voluntarily travel to and safely remain in Iran with her infant son for a significant amount of time without apparent harm. This is contradictory to the visa holder’s claims that she could not return to Iran for fear of imprisonment or possibly death.
I further discount her explanation for returning to Iran as the conflicting reasons she has given for her trip at different stages casts doubt on the genuine nature of these claims.
Therefore, I consider that the visa holder’s responses to questions 45, 46, 47, 48, 49 and 50 of her Protection visa application are incorrect.
Pre-hearing Submission
The Tribunal received a pre-hearing submission from the representative dated 4 November 2020.
Review Hearing
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. Neither the applicant nor the representative objected to the conduct of a hearing by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal was satisfied that the telephone service was clear and uninterrupted; it confirmed that the applicant, the representative, the interpreter and the Tribunal Member could hear each other clearly and the Tribunal paused on several occasions to ensure that the applicant was satisfied with the clarity of the hearing.
The Tribunal conducted a hearing on 13 November 2020. The applicant attended the hearing with her representative.
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 24 April 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 18 April 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 she and her husband were divorced.
The Tribunal noted that [in] July 2014 the applicant departed Australia with her son and traveled to Iran where she remained for a period of [days] before returning [in] October 2014.
The Tribunal noted her claim that she returned to Iran at the request of her then husband to visit her dying father-in-law.
On 18 January 2017, the applicant was notified by the Department of Immigration and Border Protection (‘the Department’) of, and invited to respond to, the delegate for the Minister for Immigration and Border Protection’s (‘the Minister’) intention to consider cancellation of her visa. According to the Department, the applicant responded to the invitation on 7 February 2017, 9 February 2017 and 19 May 2017.
The applicant, through her former representative, also responded via email to the Department on 20 February 2017 with a document attached titled ‘[Applicant’s name] Letter_of_Respond.pdf’ (exhibit 2 and 31). This attachment contained her response to the Notice of Intention to Consider Cancellation (‘NOICC’). However, it appears that this response was not considered in the delegate’s decision. The delegate, in the decision record, stated that the applicant had ‘not directly addressed the issue as to whether she agrees there was non-compliance’ and 20 February 2017 is not listed in the decision record as a date when the Department received a response.[1]
[1] Cancellation Decision Record 2, 5.
On 2 August 2017, the applicant was notified that her visa had been cancelled. The delegate advised the applicant that she had found non-compliance with s 101 of the Migration Act 1958 (Cth) (‘the Act’). As a result, the delegate exercised her discretion under s 109 of the Act to cancel her visa.
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.[2]
[2] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004).
In Tarasovski v MILGEA[3] 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.[4] What Wilcox J said was subsequently applied in Singh v MIEA[5] and Housam Slayman v MIMA[6]. In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:
[3] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.
[4] Briginshaw v Briginshaw (1938) 60 CLR 336.
[5] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383.
[6] 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. [7]
[7] 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[8] and Sun v MIBP[9]. 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:
‘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.’
[8] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555.
[9] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52.
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 that the answers given in the applicant’s Protection visa application form, were incorrect. In summary, the particulars relied upon the applicant’s voluntary return to and residence in Iran for 85 days, as the basis for finding the applicant had provided incorrect information in her Protection visa application about her fears, risk and profile in Iran.
The Tribunal discussed with the applicant and her representative how it could be that the delegate did not consider the applicant’s response of 20 February 2017. The representative replied that he acknowledges that the Response was received late. The Tribunal noted that the delegate appeared to take account of a submission made in May 2017.
The representative advised that the applicant’s former representative had lodged the Response. The representative did not have the email trail confirming lodgement and receipt, but understands that it was lodged, albeit late.
The Tribunal noted that notwithstanding whether it had been lodged, not lodged, or lodged late, with the department, it would consider the contents of the Response document, a copy of which had been submitted to the Tribunal.
The representative stated that the applicant’s return to Iran, without apparent incident, does not demonstrate that she did not hold the adverse profile claimed in her Protection visa application. He argued that she did not return to Iran as she did not fear harm, on the contrary, the applicant returned to Iran despite her adverse profile as a Christian convert in order to appease her then husband.
The representative submitted to the Tribunal passages from other Tribunal decisions. The Tribunal noted the following extracts from three decisions:
In 1814425,[10] the Tribunal found that the return to Iran for eight months by the review applicant, who claimed to hold a profile of interest to the Basij and Iranian religious police on the basis of his imputed religion, that:
It remains readily possible that the applicant returned to Iran despite his fears because of his concern for his ill mother, the death of his uncle, and the need to see his young son, as well as for the opportunity to progress his divorce. There is nothing in the evidence before the Tribunal that directly contradicts the applicant’s claimed reasons for his return. Some inconsistencies and flawed memories of original events that caused his departure could also be expected given the passage of several years and the upheavals in his life…
The delegate in the applicant’s Protection visa application, in her decision record, assessed the objective basis for the applicant’s claimed fears by referring to available country information and religious freedom rights. If the lack of harm to the applicant on his return in 2016 indicates that the applicant’s subjective fears in 2012 were not objectively based, or that the objective basis had diminished, that does not of itself mean the applicant provided incorrect information about his subjective fears at the time of his application.[11]
[10] (Refugee) AATA 324.
[11] Ibid [20], [29] (emphasis added).
In 1810335[12], in respect of the issue of a person returning to Iran, where they claimed to fear persecution from the Iranian authorities, the Tribunal noted:
The fact that the authorities did not harm the applicant during this period when he returned to Iran is not evidence that he lied about his fears of persecution or the incidents that he said had happened when he made his application for protection.[13]
[12] (Refugee) [2018] AATA 3927.
[13] Ibid [25].
The representative submitted that the Tribunal has accepted in other cases that a person returning to Iran, notwithstanding their fear of persecution or adverse profile, does not necessarily support the conclusion that they provided incorrect information.[14] In some cases, the Tribunal has also found no non-compliance where the person has returned to their home country a few months or a year after the granting of their protection visa.[15]
[14]See e.g. 1835225 (Refugee) [2019] AATA 5848; 1712034 (Refugee) [2019] AATA 5960.
[15] See e.g. Ibid; 1724670 (Refugee) [2019] AATA 2040; 1617889 (Refugee) [2017] AATA 213.
In 1617889,[16] this case was support for the proposition that people who have returned to Iraq despite their protection claims, may not have provided incorrect information. The Tribunal did not accept:
…the delegate’s assertion that his return to Iraq means that the applicant provided incorrect information in his protection visa application. It is not clear what that incorrect information is, noting the reasons as provided reflect mostly on the situation as found in Iraq in 2014 and beyond, and not in 2011 when the protection visa was applied for and assessed, and 2013 when finally granted. It was stated that his return in 2014 to undertake activities meant that he did not have the adverse profile as claimed in the visa application. This does not deal with the issue of the applicant being [an Occupation 1] up to 2011, a group that [a source] identified as being at risk of harm. It was also asserted that the applicant did not have to be in Iraq to undertake the administrative and financial steps to bring his family to Australia, and that had the applicant had an adverse profile he would not return to Iraq. The Tribunal notes that the applicant was in fact granted the protection visa on the ground of his membership of a particular social group (employees of the Iraqi government) which has a perceived political support for the Iraqi government. That the applicant was a member of this particular social group and at risk of harm because of his membership of the group, as at 2011 or 2013, has not been shown to be contradicted or conflicted by the applicant’s return in 2014, or in the information he provided with his application.[17]
[16] (Refugee) [2017] AATA 213.
[17] Ibid [53] (emphasis added).
The applicant stated that in 2014, her father-in-law became seriously ill and he asked to see his grandson on his deathbed. She stated that her husband asked her to go to Iran with [Son A] for the purpose of showing him to his father because he wished to see him before he died.
The Tribunal expressed its concerns about the fact that the applicant had claimed to have become a Christian, that she feared returning to Iran on that basis, and that a protection visa had been granted to her on that basis. And yet she had, despite those fears, returned to Iran for an extended period, with her child, having obtained a new Iranian passport from the Iranian Embassy in Canberra, and having flown back to Iran through its international airport, where information about her return would have been captured by the Iranian authorities.
The applicant then explained that her intimacy toward the Christian faith and acceptance of Jesus as her Lord and Saviour was not yet widely known publicly in Iran, and she had accepted to go to Iran out of respect for her husband’s demand and also out of respect to his father.
Therefore, she had planned for her and [Son A] to go to Iran and visit her husband’s father on a short trip, while keeping her case and church attendance in Australia secret from everyone. But once they reached Iran, the father’s health continued to decline until he passed away three weeks after they went to Iran.
The Tribunal had also expressed its concerns as to why her husband had not also returned to ran with her, given, as the delegate had noted, that it was his father who was dying. Why would he not also attend.
The applicant stated that her husband didn’t want to risk his life by visiting Iran, even for his father’s funeral, so he asked her to stay back in Iran until his 40 night funeral is over, which is a custom in Iran since he could not be present there.
The Tribunal asked the applicant whether she had been experiencing domestic violence before her return to Iran. She explained that she had, that things were not good as between she and her husband back then, but they did continue to live in the same house. She went on to add that her husband was not mentally stable.
The representative asked the Tribunal to consider Iranian culture – that a wife has to comply with the requests and demands of her husband. He said that the applicant would have been terrified of not going back and her father-in-law then dying. He argued that she was in a no-win position.
The applicant stated that out of respect to her ex-husband’s family’s request for remaining there, she stayed in Iran to share the grief and sorrow of the father’s death which is a very significant and sad custom of Shia Muslims that she hated. She explained that unfortunately Shia Muslims take grief and sad events very seriously. Sad events are long and important but they would quickly wrap up their happy events exactly opposite to what Christian people do. Therefore, despite the fact that she only went there to show their son to my ex-husband’s father for a few weeks, she ended up staying there for[number] days during which time she was constantly having nightmares of losing her passport, visa or that the child would get sick in Iran and for any unforeseen reason not be able to return to Australia. But the applicant thanked God that after [number] days, she managed to safely return to Australia and never travelled to anywhere else after that.
The applicant also stated that she maintained a low profile while in Iran as she did not disclose her Christian faith to her family and friends.
The representative submitted that the applicant’s return to Iran must be considered in the context of her family life at the time.
In their decision record, the delegate concluded that:
As part of her response the [applicant] has advised that she travelled back to Iran to introduce her son to her father-in-law. The [applicant’s] father-in-law passed away shortly after her arrival. I note the contradictions in the explanation for her return to Iran and I also note that the [applicant’s] husband ([named]) did not travel with the visa holder when it was claimed that his father was dying. I do not consider it plausible that the [applicant] would travel back to Iran to see her father-in-law while her spouse would not travel to see his own father.[18]
[18] Cancellation Decision Record 6.
The representative explained that the contradiction in her explanation referred to by the delegate was in reference to a phone call the applicant had with the Department on 5December 2016. According to the Department, during this phone call, with the assistance of a Farsi interpreter, the applicant stated that she returned to Iran to visit her dying father. The representative submitted that this discrepancy, that she visited Iran to see her dying father rather than her father-in-law, is not material and likely the result of a miscommunication or misinterpretation over the phone. This is especially in light of the fact that the applicant had attempted to sponsor her mother and father in 2016 for a visit to Australia. The representative referred the Tribunal to exhibit 32, the funeral invitation for her father-in-law.
The representative also submitted that the applicant’s decision to return to Iran to see her dying father-in-law was in the context of her abusive relationship with her former husband. As detailed in her response to the NOICC, 2020 Statutory Declaration and supporting documents, the applicant experienced physical and emotional abuse from her former husband throughout their marriage. This eventually led to a Protection Order being taken out against the applicant’s then husband [in] February 2017. The representative referred the Tribunal to exhibits 20 and 21 (protection orders).
The representative referred the Tribunal to the statement of [Ms D] which noted in her character reference for the applicant:
I am aware that [the applicant] contravened her protection visa requirement by travelling to her home country of Iran, and that act cast a shadow over the genuineness of her protection claims. [The applicant] lived a difficult life with her controlling and dominating husband where, as an Iranian woman, she was trying to keep her marriage by stopping it from falling apart. She lived a stressful life and had to comply with her husband's abusive demands, including his request for her to travel to Iran taking their son so that his dying father could see the grandson. And she obeyed.[19]
[19] Exhibit 5.
Further, understanding the risk of harm, the applicant’s ex-husband ‘didn’t want to risk his own life by visiting Iran, even for his father’s funeral’.[20] Instead, he requested that the applicant to return and stay in Iran instead, putting the lives of his former wife and child at risk.
[20] Exhibit 3, 3.
The representative finally submitted that the applicant’s temporary return to Iran does not provide any conclusive evidence that the applicant provided incorrect information to the Department at the time of application and up to the grant of the visa. Despite her adverse profile, the applicant returned to Iran at her then husband’s request, which was made in the context of longstanding emotional and physical abuse perpetrated by him. We submit that, understood in this light, her return to Iran was not due to her lack of an adverse profile or fear. Instead, she returned despite her profile in order to placate her former husband. During her time in Iran, she kept a low profile by not disclosing her conversion to friends and family. Therefore, it is submitted that the applicant’s ability to return to Iran without incident does not prove she did not hold the adverse profile outlined in her Protection visa application.
The Tribunal queried the applicant as to the length of her stay. The Tribunal suggested that it appears from the applicant’s evidence that it was as a consequence of her father-in-law dying whilst she was in Iran that she ended up staying [number] days, rather than returning, showing the child to the family and departing. The Tribunal explained that it was troubled by the fact that the applicant’s departure card stated that she would be abroad for [number] days – that she therefore planned to be absent for [number] days, and that therefore it was no coincidence that she was overseas for [number] days. The applicant stated in response that at all times she had been honest and she honestly stated she would be abroad for [number] days, as the doctors had told them that it was urgent that she return to Iran as the father-in-law effectively had no chance of survival, and that they planned accordingly, knowing there would be a funeral and the 40 day period of mourning.
The representative restated that the applicant has at all times been honest, in fact in her citizenship application she honestly reported the fact of her return to Iran, when in fact the question she completed did not require her to disclose such a visit (being less than 12 months).
The Tribunal inquired about the applicant’s present circumstances.
The applicant stated that she currently lives in [city] with her de facto partner and son, [Son A]. The applicant stated she divorced her former [husband], [in] December 2018 (confirmed by exhibit of her certificate of divorce). The applicant restated that she experienced physical and emotional abuse throughout their relationship. This has caused the applicant severe depression, anxiety and stress. The representative referred the Tribunal to exhibit 13 (psychologists report). [In] February 2017, a Protection Order was taken out against the applicant’s ex-husband.
She also stated that recently, the former husband started sending abusive messages to her which resulted in an incident at their son’s school where the former husband was aggressive towards her. The representative referred the Tribunal to exhibit 3 and 18 (protection orders). She reported the incident to the police. The representative referred the Tribunal to exhibit 17 (police report).
The applicant stated that she continues to practise her Christian faith in Australia. While living in [another city], she attended [a named] Church and formed close friendships with other churchgoers. The representative referred the Tribunal to exhibits 22 and 23 (supporting statements). She stated that her conversion to Christianity is now known by her friends and relatives in Iran.
The representative submitted that the present circumstances of the applicant make returning to Iran untenable and would place her at risk of harm due to her faith and status as a woman in Iran.
The representative submitted as follows:
·That the applicant is at risk of harm if she returns to Iran. The hostile environment towards women and Christian converts, by her ex-husband and his family along with the Iranian authorities, means there is a serious risk that she will face persecution if she returned to her home country. Her previous experience with the Iranian authorities and her ex-husband, and his family, further justify her fear of return. Her fear is also supported by country information.
·Before coming to Australia, the applicant experienced persecution including being arrested for ‘improper hijab’ by the Iranian authorities. As the applicant stated on page 3 of her Response to the NOICC:
·At the same time that we were still living in Iran, even without having changed our religion but as our life style and appearance was not up to the Islamic government’s standard, like many other people in Iran, I was arrested and hurt by the Iranian government forces in a number of times. Once I was arrested for driving while listening to western music and wearing un-Islamic dress. In fact I had my scarf on and I had my long rain coat on me but since they didn’t like my dress which was a bit stylish, they have arrested me and took me to solitary confinement in a filthy cell full of cockroaches. I was scared and was screaming loudly. I was so frightened that I even wet my pants but I heard prison guards were laughing at me.
·I was kept there until my husband came at midnight to bail me out but he was mad at me and blamed me for getting arrested. He said that I must have done something wrong that I was arrested and [he] was not believing me that I was simply arrested for [sic] by the bunch of crazy people enjoying to bother Iranian civilian with any simple excuse although he had experienced the same thing in Iran in a number of occasions.[21]
·This experience with the Iranian authorities was similarly noted in the applicant’s statement during her Protection visa application. Her experience with the Iranian authorities vis-à-vis her dress is not unique. Women in Iran are subject to compulsory dress codes that are enforced by various Iranian institutions and experience harassment, arrest and fines for non-compliance with Islamic standards of dress (see appendix 1 for country information). The mandatory hijab requirements violate a women’s freedom of expression and religious beliefs, as they are compulsory regardless of religion.[22]
[21] Exhibit 2, 3-4.
[22] Ceasefire Centre for Civil Rights, Centre for Supporters of Human Rights and Minority Rights Group, Beyond the Veil: Discrimination against women in Iran (Report, September 2019) 35 < content/uploads/2019/09/MRG_CFR_Iran_EN_Sept191.pdf>.
The applicant also expressed concern at the possibility that her divorce in Australia would not be recognised. She stated that her return to Iran as an apostate would cause a great hardship, harm and risk to my life and liberty. This is particularly since her husband and his family are now very against the applicant and would do anything they could to turn her life into a living hell if they could. She went on to add that her former husband was trying to do that in Australia too but there are laws that can protect her but no such laws exist in Iran. She added that if she is sent back to Iran, the Iranian government would not recognise her divorce and separation and therefore her former husband would still be considered as her owner/Islamic husband and could deprive her and her son of having a passport and other liberties if she could be lucky enough not to be jailed.[23]
[23] Exhibit 2, 8.
The representative submitted that this aligns with country information in respect of the lack of recognition of foreign divorces in Iran. Typically, Iran will not recognise a divorce that was performed out the country.[24] In particular, ‘[a]s divorce is the absolute right of the husband, any divorce initiated outside of Iran by a female Iranian national will usually not be recognized. This is the case even if the foreign divorce states the same allegations set out as options that a woman could use to petition an Iranian court.’ [25]
[24] 8 Kristen Cherry, ‘Marriage and Divorce Law in Pakistan and Iran: The Problem of Recognition’ (2001) 9(1) Tulsa Journal of Comparative & International Law 319, 344.
[25] Ibid.
The applicant stated she has also experienced domestic violence perpetrated by her former husband. She fears that if she returns to Iran, she will not be adequately protected by the Iranian authorities and legal system from her ex-husband and his family.
The representative submitted that Iranian law does not prohibit domestic violence.[26] Victims who wish to report domestic violence are required to file a complaint under the criminal provisions related to bodily assault.[27] This includes discharging the difficult, if not impossible, evidentiary requirement of providing two adult male witnesses to the assault.[28] Authorities also consider abuse within the family a private matter and seldom discuss it publicly.[29] Police and judges are sometimes reluctant to act in domestic violence matters, viewing them as family problems. Instead of filing charges, police usually respond by encouraging the parties to reconcile and to return the victims to their abuser(s).[30]
[26] U.S. Department of State, Iran 2019 Human Rights Report (Report, 11 March 2020) 39 < content/uploads/2020/03/IRAN-2019-HUMAN-RIGHTS-REPORT.pdf>.
[27] Home Office (UK), Country Policy and Information Note – Iran: Women fearing domestic abuse (Report, September 2018) 6 < Department of Foreign Affairs and Trade (DFAT), Country Information Report – Iran (Report, 14 April 2020) 48
[29] U.S. Department of State (n 20) 39.
[30] Home Office (n 21) 7.
The representative also submitted that the harm she faces from the Iranian authorities and her ex-husband and his family in Iran is further exacerbated by her now public conversion to Christianity. When the applicant returned to Iran in July 2014, her conversion to Christianity was not yet known by her friends and family in Iran; however, as she states on page 7 in her response to the NOICC (exhibit 2):
…now that almost every one of my friends in Iran and Australia is aware of my conversion to the Christian faith and my husband and his family wish to do anything to hurt me because of my request for divorce from him and having the custody of my Child, I am sure my return to Iran would cost a great danger to my life and liberty.
This was also noted in her 2020 Statutory Declaration (exhibit 3). Her fear is further compounded by her current circumstances in Australia. As the applicant explained in her 2020 Statutory Declaration:
Along with the threats I face due to my Christian faith, while my ex-husband and I have formally divorced under Australian law, I am concerned that if I return to Iran, my ex- husband’s family will try to remove my son from me in accordance with Islamic law. I am also worried that they may take action against me and persecute me for living with my new partner in a de facto relationship.[31]
[31] Exhibit 3.
The representative referred to the DFAT Report. In its 2020 report, the Department of Foreign Affairs and Trade found that:
Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment.[32]
[32]DFAT (n 22) 34.
He also cited the Danish Immigration Service which similarly noted that Christian converts may be shunned or face honour killings by their families. [33] This is in addition to persecution faced by converts perpetrated by the state.
[33] Danish Immigration Service, Update on the Situation for Christian Converts in Iran (Report, June 2014) 17The applicant stated that her son, [Son A], turns [age] in August of this year. Iranian law provides divorced women preference in custody for children up to seven; however, fathers maintain legal guardianship rights over the child and must agree on many legal aspects of the child’s life. [34] This includes the issuing of travel documents, enrolling in school and filing a police report. Once a child reaches the age of seven, however, the father is granted custody unless he is proven unfit to care for the child. [35] As a result, the applicant argues that if she was to return to Iran with her son, she will not have legal guardianship and may lose custody of him.
[34] U.S. Department of State (n 20) 41.
[35] Ibid.
The representative submitted that in light of the country information, the applicant’s fear of returning to Iran due to her present circumstances is well-founded and she continues to be at risk of harm.
The Tribunal has considered the reasons for the applicant’s return to Iran and accepts that she did return to Iran solely for the purpose of enabling her dying father-in-law to see his grandson. The Tribunal accepts that the applicant remained in Iran for the purposes of waiting for the father-in-law’s death and subsequent burial and burial rituals.
The Tribunal accepts that the applicant did not return to Iran voluntarily, rather she did so under duress – being the fear of abuse and likely physical abuse at the hands of her then husband had she not done as was requested of her.
The Tribunal is satisfied from all of the evidence presented that she continues to practice the Christian faith. The Tribunal has found the supporting statements compelling of the applicant’s current position in relation to her religious observances.
The Tribunal accepts country information in relation to the treatment of women in Iran, particularly divorcees and single mothers, and accepts the risks confronted by the applicant in relation to the custody of her child, and the potential for hostility from the former husband and/or his family in Iran.
The Tribunal accepts country information in relation to the practice of Christianity in Iran and accepts the risks the applicant is exposed to, particularly in light of her hostile relationship with her former husband and potentially hostile relationship with his family.
The Tribunal accepts the applicant is fearful of religious extremists in Iran and continued to be so whilst she visited Iran.
The Tribunal is satisfied that the applicant managed her return to Iran in such a way as to not bring herself to the notice of such religious extremists, and kept her religious faith to herself for the relatively short period of time she remained in Iran.
The Tribunal is satisfied that the applicant’s return to Iran in 2014 is not conclusive evidence that she did not hold the adverse profile claimed in her Protection visa application.
100. The Tribunal is left with the evidence before it and it is for these reasons the Tribunal finds there was no non-compliance with s.101(b) by the applicant in the way described in the s.107 Notice.
Conclusion
101. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
102. 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
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