1718073 (Refugee)

[2019] AATA 5877

1718073 (Refugee) [2019] AATA 5877 (13 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718073

COUNTRY OF REFERENCE:                   Iran

MEMBER:Nicole Burns

DATE:13 June 2019

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 13 June 2019 at 3:58pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – particular social group – returnee from the west – failed asylum seeker – incorrect information on protection visa application – initially claimed to be stateless Faili Kurd – applicants are Kurdish Iranian nationals – further incorrect information in response to Notice of Intention to Consider Cancellation – exercise of discretion – best interests of applicant’s children – one child is Australian citizen – status of girls in Iran – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140, 424A, 424AA, 438
Migration Regulations 1994 (Cth), r 2.41

CASES

MIAC 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 first named applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that they were satisfied the first named applicant provided incorrect answers on his protection visa application in breach of s.101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicant appeared before the Tribunal on 4 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [the second named applicant]. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. He participated in the hearing via the telephone.   

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Non-disclosure certificates

7. The Tribunal has before it the applicant’s Departmental files, including the files relating to his visa cancellation. The delegate has placed restrictions on some of the material given to the Tribunal by the Department by certifying that disclosure of the material is contrary to the public interest under s.438 of the Act.

8. Where a certificate is issued under s.438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.

9. In this case the Departmental file contains a non-disclosure certificate issued under s.438 of the Act dated 17 August 2017.  The Tribunal is satisfied the certificate is valid.  The information covered by the certificate includes information related to the Department’s identity assessment with respect to the applicant, most of which has been discussed in the Notice of Intention to Consider Cancellation (NOICC) or before the Tribunal or is not in dispute. There is nothing adverse contained in it which has not already been disclosed to the applicant by either the Department or Tribunal and the applicant has acknowledged that he provided incorrect information in certain respects at the protection visa application stage (discussed further below).  In such circumstances the Tribunal gives that information little weight.

10. The information to which the certificate is subject is also information from Centrelink which sets out the applicant’s benefits history.  At hearing the Tribunal discussed this information with the applicant insofar as it may indicate that he received benefits whilst working full time, pursuant to the provisions of s.424A of the Act.  The applicant explained his work history, which has included varying hours, and was emphatic that he has always been transparent with Centrelink who have adjusted his benefits accordingly.  The Tribunal is willing to accept that is the case, noting on the limited information before it that it is unable to make an adverse finding in this respect.  In such circumstances the Tribunal gives that information little weight.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. 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.

13. On the Departmental file is a copy of the NOICC dated 26 May 2017, which advised the applicant that his visa may be cancelled under s.109 because of concerns that he did not comply with s.101(b) (visa applications to be correct)  of the Act.  He was advised to respond in writing.  On 15 June 2017 the applicant’s representative responded in writing to the NOICC. 

14. Having a look at the NOICC as a whole, the Tribunal is satisfied that it sufficiently informed the applicant of the basis upon which the cancellation was being considered and gave him an opportunity to respond. 

15. 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?

16. 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 as follows.

    Section 101(b) - visa applications to be correct

17. The non-compliance identified and particularised in the s.107 notice in relation to s.101(b) was that the applicant had provided incorrect information in relation to his protection visa application, lodged (and granted) on 27 October 2010.

18. Specifically, as set out in the notice, at the time the applicant completed Form 866C ‘Application for a Protection (Class XA) visa’ and provided answers to a number of questions including about his name and citizenship (questions 1, 4, 19, 20, and 23).  In answer to questions 41 to 45 in that form about why he left Iran and why he fears returning there (for example) the applicant referred to a statutory declaration dated 10 June 2010, reproduced (in part) in the NOICC as follows:

    I am a Stateless Person but a former habitual resident of Iran.  I am a Faili Kurd, as is my wife.  I left Iran [in] March 2010 to avoid the risk of persecution by the authorities, especially the Bassijis, who threatened me with serious harm on account of my religion.

    I was born in Iran on [date] or about 3 years after my family, who had been citizens and permanent residents of Iraq, had been stripped of their citizenship by the government of Saddam Hussein and expelled to Iran.  However, the Iranian authorities never accepted the Faili Kurds into the society and none of us, where were born in Iran, have been granted citizenship or permanent residence.

    Since Iran does not regard me as having any rights in that country, I have been unable to obtain a birth certificate or any other evidence of my identity and citizenship.  I held any Iranian green card for about 21 years from my birth but it was taken from me by the Bassiji in 2004.

19. On the basis of this information – and in particular the applicant’s claims to be a stateless Faili Kurd who was discriminated against and mistreated in the past by the Basij in Iran as a result – the applicant was found to be a refugee and granted a protection visa on 27 October 2010 (the same day that he had applied). 

20. However subsequently, based in large part on inconsistent information about key matters provided by the applicant and [the second named applicant] when they made a request under Freedom of Information provisions to have their names and dates of birth changed in 2012 and during interviews on 8 July 2015, the delegate formed the view that the applicant had provided incorrect information in his protection visa application in relation to his name and citizenship, and related protection claims.

    Response to the NOICC and the Tribunal’s findings on non-compliance

21. In his written response to the notice which sets out this information the applicant (via his representative) acknowledged that he did provide incorrect information in his protection visa application and acknowledged that he did not comply with s.101 of the Act.  Nonetheless, the representative argued that the decision maker should exercise their discretion not to cancel the visa for various reasons, addressed separately below (elsewhere). 

22. In a written submission provided to the Tribunal the applicant’s representative states that the applicant did provide incorrect information at the visa application stage in relation to these key matters.  At hearing the applicant acknowledged that he provided incorrect information at the visa application stage about his name and nationality (and related protection claims) at the protection visa application stage.   

23. The Tribunal finds that the applicant provided incorrect information in his protection visa application (and related statutory declaration) in these respects.  The Tribunal finds that there was non-compliance by the applicant with s.101(b) of the Act in the way described in the notice sent to him under s.107 of the Act in this respect. 

24. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

25. 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).

26. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 (the Regulations), as follows.

27. The correct information: is that the applicant was an Iranian national (of Kurdish ethnicity) when he applied for protection, not a stateless Faili Kurd and his full name is [applicant name].  The applicant’s case for his protection visa was based on his claim that he was owed protection obligations because he was a stateless Faili Kurd, which was not true.  The correct information is that the applicant had no fear of harm or mistreatment by the Basij or the Iranian authorities on the basis of his status as a stateless Faili Kurd.

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

29. 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 Tribunal finds the decision to grant the protection visa was based in large part on the incorrect information provided with the visa application that the applicant was a stateless Faili Kurd and faced persecution from the Iranian authorities as a result.  Had the applicant indicated that he was not stateless, the delegate may have concluded that he did not meet the criteria for the grant of the visa, given this was central to his claims.  

30. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his visa application and accompanying statutory declaration. 

31. In response to the NOICC the applicant claims (via his representative) that on their way to Australia, he and his wife were told by the people smugglers that the only way they could stay in Australia and avoid being deported back to Iran was to destroy their identity documents and claim to be Faili Kurds. They did so as they could only trust those people at the time. They had to keep making the same claim of being a Faili Kurd throughout the visa processing until now, as they did not want to be sent back to Iran.  As well, given that they had other relatives who had come to Australia making the same false claim of being Faili Kurds, if they had confessed to the truth, this would have jeopardised their relatives' visas as well.

32. At hearing the applicant told the Tribunal that he was young – [age] – when he decided to come to Australia because of hardships he faced as a Kurd in Iran and that he knew very little about migration.  When he and his (then pregnant) wife arrived in [Country 1] after a difficult boat journey they were told by smugglers to lie and say they were stateless Faili Kurds otherwise they would be immediately deported from Australia via the same route (that is by sea): he was terrified and therefore decided he would not tell the truth at the time about these matters.

33. The present circumstances of the visa holder: The applicant has been resident in Australia for around nine years.   He is separated from his wife and they have lived separately for the last four months (prior to the hearing).  His wife told the Tribunal that they have not yet divorced but will in the future, however, the applicant said he does not want that.  Their two daughters aged [ages] live with the applicant’s wife and the applicant sees them after school or on weekends at times, although they never stay overnight at his place.  The applicant currently works as [an Occupation 1] and before that worked as [an Occupation 2] in Australia. 

34. The representative submitted in response to the NOICC that the applicant has been orientated and accustomed to the Australian way of life; that he has made every effort to contribute to Australian society (the representative did not elaborate); he has obtained several skilled [qualifications] (copies are provided) and improved his English. In his submission to the Tribunal the representative reiterates these themes, arguing that the applicant is of good character. 

35. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: Subdivision C of Division 3 of Part 2 of the Act relates to the applicants’ obligations not to provide incorrect information or bogus documents and to notify any relevant changes of circumstance.

36. In response to the NOICC the representative stated that the applicant said he had been detained in Iran by the authorities for no reason several times; however, at hearing the applicant said that this happened to people he knows but not himself personally.  The Tribunal therefore finds that the applicant responded to the NOICC making an incorrect statement in this regard.

37. Any other instances of non-compliance by the visa holder known to the Minister: there are no other instances of non-compliance known to the Tribunal.

38. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant applied for the protection visa in October 2010 and almost nine years have lapsed since then. 

39. Any breaches of the law since the non-compliance and the seriousness of those breaches: The Tribunal is not aware of any breaches of the law by the applicant since the non-compliance. 

40. The Tribunal notes on the Departmental file there is a copy of a Victorian police criminal history report which indicates the applicant had a pending charge as at 28 July 2017 for the offence ‘contravene FV Final IVO’ and ‘unlawful assault’.  At hearing the Tribunal discussed this report with the applicant pursuant to the provisions of s.424AA of the Act.  [The second named applicant] explained that it related to a period in the past when she wanted to leave the applicant but he did not want her to; however, subsequently, she withdrew the charges.  The applicant confirmed he has no outstanding criminal matters or any criminal record in Australia.  The Tribunal accepts that is the case, noting the report was issued on 28 July 2017 and the delegate did not mention any concerns against this factor in their decision record (or the NOICC).

41. Any contribution made by the holder to the community: In response to the NOICC the representative submitted that the applicant is a taxpayer and works full time at [employer].  A letter from [his then employer] dated [June] 2017 was provided.  At hearing the applicant explained he worked as [an Occupation 2] for that company, but now he has returned to [Occupation 1].  He has obtained [qualifications] in [subject] (providing copies to the Tribunal).  Letters of support from his current employer, his family’s GP and friends in relation to the applicant and [the second named applicant] have been provided to the Tribunal, attesting to their hard work and trustworthiness.

    Other factors: Departmental guidelines

42. While these factors in r.2.41 of the Regulations 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 government policy[1] as follows.

    [1] PAM3 ‘General visa cancellation powers’.

43. Whether there would be consequential cancellations under s.140: The applicant’s wife and their eldest daughter’s visa were cancelled as a consequence of the cancellation of the applicant’s visa under s.140 of the Act.

44. Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation:  It is government policy that consideration for cancellation of visas must take into account any relevant obligations arising under international treaties. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[2]

    Best interests of the applicant’s children

    [2] PAM3 Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140).

45. As a signatory to the Convention of the Rights of the Child (CROC), Australia has certain obligations, including the best interests of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16).   The CROC also includes integrated but wider considerations including education[3] and health and disability considerations[4] for children within the jurisdiction of the States Parties.  Children who are refugees (defined as those who have been forced to leave their home and live in another country) are owed special protection and help.[5]

    [3] Article 28

    [4] Articles 23 and 24

    [5] Article 22

1. When assessing the best interests of a child, the Department’s Policy Guidelines set out the factors to be considered when exercising a discretionary power, including the child's age and the degree of their integration into the Australian community as well as the child's ability to resettle and integrate in the country of citizenship.[6]

   [6] Departmental Policy Guidelines, Guiding Principles – Treatment of Children at A122

2. In response to the NOICC the representative submits that cancellation will cause irreparable psychological and social harm to the applicant’s children and that it would negatively affect their rights to live, grow and be educated in Australia.

3. The Tribunal has had regard to the submissions of the applicant’s representative to the effect that children’s lives are mired in difficulty in Iran, with some dying as a result of famine, street fights or illness; that the authorities are searching for ways to check the flow of child trafficking and labour and Iran is one of the last countries in the world that allows the death penalty for minors. Whilst that might be the case to a certain extent, the Tribunal does not accept there to be a real chance or a real risk that the applicant‘s children will experience any of these adverse events. That is because their parents are Iranian citizens and not stateless as originally claimed. As such the applicant’s children are also Iranian citizens and will have the same access to services and employment as other Iranian citizens.[7]  In such circumstances the Tribunal does not accept his children would be vulnerable to dying of famine or child trafficking or labour, for instance.

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

4. In his written submission to the Tribunal the representative submits that the applicant’s children as females will suffer more than their male counterparts in Iran; that they will be raised according to Sharia law, which has little or no respect for women; Iran has engaged for over three decades in systematic and often egregious discrimination against women; since the Islamic Revolution, Iran’s clerical rulers have been preoccupied with setting limits on the rights and role of women and have imposed gender discrimination under the rubric of applying Islamic laws, which restrict women’s education and professional opportunities, among other things.  He gave some examples of laws that discriminate against women, referred to the strict enforcement of hijab in Iran, and made reference to country information about the general human rights situation there.

5. At hearing the applicant said that Iran is not a place for women and girls, because they are seen as commodities and are not free to live their lives.  He wants his daughters to be able to live freely and make decisions for themselves.  He is sure if he takes them back to Iran they will be harmed psychologically.  Even if he supports them to make the decisions they want (about studying, or participating in sport, for example), he said they are not immune from societal (and legal) pressures and expectations there.  Further, his daughters would have to wear a hijab from the age of seven in Iran and be punished if they failed to do so.

6. The applicant and [the second named applicant] have been living separately for four months (prior to the hearing) and [the second named applicant] told the Tribunal that they have separated.  She said that her greatest fear if they have to return to Iran is that she will not be able to maintain custody of her daughters, given custody laws in Iran favour the father and the father’s family.  Country information[8] clearly indicates that men are favoured in family related decisions and matters and the Tribunal considers it likely that the applicant’s children will live with the applicant and/or his family if they return to Iran, separate from their mother who is their primary carer in Australia, and therefore their lives will be significantly disrupted.

   [8] DFAT Country Information Report, Iran, 7 June 2018 at 3.80

7. The applicant has a [age] year old daughter who was born in Australia shortly after his arrival but before he had obtained permanent residency. As such, she is an Iranian citizen and if the applicant’s visa is cancelled her visa will be cancelled as a consequence under s.140 of the Act.  The applicant’s second daughter is [age] years old and was born in Australia while her parents held permanent protection visas and as such she is an Australian citizen.  While her Australian citizenship will not be effected by the applicant’s visa cancellation, the Tribunal accepts that in practical terms if her parents are returned to Iran then she will have no choice but to return with them (either separately or together). 

8. The applicant’s eldest daughter is currently in grade [number] and has spent her entire life in Australia – almost [number] years.  [The second named applicant] said her daughter is able to speak Farsi but only reads and writes English, as does her younger sister.  The applicant’s second daughter was born in Australia and has spent her entire life here. She is currently in grade [number] at [school].  Letters from the assistant principal at their school have been provided to the Tribunal showing how well integrated they are as well as being committed and motivated to learn. In addition to their strong engagement with school, the applicant’s daughters are also active in sports outside school: his eldest in [Sport 1] and the youngest in [Sport 2].  The Tribunal accepts having spent their entire lives in Australia that the applicant’s daughters are well integrated into the Australian community and they would face significant challenges resettling in Iran, particularly in the likely event that they would do so living separately from their mother.   They would also be leaving behind cousins who they have been brought up with in Australia and they are close to: the applicant said his youngest daughter was born on the same day (four hours apart) from one of her cousins (whose [parent] is his wife’s [sibling]).  The Tribunal accepts it would be very disruptive to their education, particularly for the eldest daughter who is almost [age] and spent her formative years in Australia and because both the applicant’s daughters are unable to read or write Farsi.  Furthermore, country information[9] supports the contention that women (and girls) face considerable barriers to their full participation in society, including restrictive dress codes, and that there are penalties for behaving in ways that are contrary to legal and cultural expectations. The Tribunal accepts it is in the best interests of the applicant’s daughters’ (one of whom is an Australian citizen) development and emotional and other well-being to remain living in Australia with their mother (with access to their father) where they can continue their education and other endeavours such as sport without restriction.

   Australia’s non-refoulement obligations

   [9] DFAT Country Information Report, Iran 7 June 2018 at 3.79 – 3.89

9. The Tribunal has turned its mind to whether the cancellation would lead to the applicant’s removal in breach of Australia’s non-refoulement obligations.  The Tribunal finds that the applicant is a national of Iran and that this country is his receiving country for purposes of this assessment under s.5 of the Act.

10. The Tribunal notes at hearing the applicant confirmed that his claims at the protection visa stage to fear harm from the Basij and others as a stateless Faili Kurd, and alleged problems he (and other family members) experienced as a result, were not true.

11. It has been submitted that the applicant faces a well-founded fear of persecution on return to Iran for a number of reasons, including his Kurd ethnicity, and as a returnee/failed asylum seeker, considered separately below.

    Kurd ethnicity

12. In response to the NOICC the representative submits that being from the Kurdish ethnicity in Iran, the applicant’s entire ethnic community have been treated as second class citizens in Iran by the Iranian regime and to a great extent by other Iranians. He refers to terrorist attacks the previous week on the Iranian parliament where three out of the five terrorists killed were Kurdish, fed up with the regime.  (He clarified that the applicant is opposed to violence, even against the Iranian government.)  Nonetheless the recent events has given the Iranian authorities the opportunity to crack down on all voices opposed to discriminatory policies of the regime in the name of protecting the country against terrorists. 

13. At hearing the applicant said he left Iran because of racism he experienced as a Kurd (he did not elaborate); because he did not have a permanent job; and because there was no avenue for progress.  His last job was working in a [workplace] in Semnan city.  He left school part way through year [number].  He said when he was around [number] years old his father was imprisoned for a year (along with others) because he was a Kurd.  After his release his father said their family were under surveillance by the government, telling his children to always be careful.  The Tribunal accepts the applicant’s father may have been detained for a year in part because of his Kurdish ethnicity in the past.  However this took place around [number] years ago and the applicant has not indicated that anything else happened to his father, the applicant or his siblings as a result.  The Tribunal therefore finds remote the chance the applicant would face serious harm or significant harm from the authorities on the basis of his father being detained for a year when the applicant was three or four years of age. 

14. The Tribunal accepts that discrimination against ethnic minorities (including Kurds) occurs in Iran, and that some Kurds can be of interest to the authorities, imputed with anti-state/separatist political opinions.  It accepts that it may be difficult for some Kurds to obtain permanent work, and they may experience a level of discrimination as submitted. 

15. Nonetheless, as discussed at hearing, the Department of Foreign Affairs and Trade (DFAT) reports that Iran’s laws do not discriminate on the basis of ethnicity, including in relation to access to education, employment or housing. DFAT acknowledges that official and societal discrimination against ethnic minorities does occur in Iran, although it states that the overwhelming majority of ethnic minority communities are integrated into Iranian society participate in politics and identify with the Iranian nation.[10]  Overall DFAT assesses that:

    ... members of ethnic minority groups face a moderate risk of official and societal discrimination, particularly where they are in the minority in the geographic area in which they reside. This may take the form of denial of access to employment and housing, but is unlikely in most cases to include violence on the grounds of ethnicity alone. The risk to members of ethnic minority groups who are involved (or are perceived to be involved) in activism is higher.[11]

    [10] Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 June 2018 at 3.1 and 3.3

    [11] Ibid at 3.6

16. With respect to Kurds, DFAT states that international sources report that the government uses security, media and other laws to arrest and prosecute Kurds for exercising freedom of expression and association.[12]

    [12] Ibid at 3.12

17. The UK Home Office reports that whilst Kurds in Iran face institutional discrimination which affects their access to basic services, the evidence (as found in the country guidance case of HB (Kurds) Iran CG [2018] UKUT 430 (IAC))[13] does not support the contention that such discrimination is, in general, at such a level as to amount to persecution.  They state that although the Iranian authorities have become increasingly suspicious of and sensitive to Kurdish political activities and that those of Kurdish ethnicity are thus regarded with even greater suspicion, the ‘mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even combined with illegal exit, does not create a risk of persecution...’  The report states that Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities.[14]  However the applicant has not indicated that he has ever been involved in such activities, and the Tribunal finds that he has not, and would not be on return.

    [13] Heard 20-22 February and 25 May 2018 and promulgated 12 December 2018

    [14] UK Home Office, Country Policy and Information Note, Iran: Kurds and Kurdish political groups, January 2019, at 2.4.3 - 2.4.5,

18. The Tribunal accepts that Kurds and other ethnic minorities in Iran face a moderate level of official and societal discrimination in Iran, based on DFAT’s advice. However it does not accept that discrimination rises to the level of serious harm for the purpose of s.5J(5) or significant harm for the purposes of s.36(2A) of the Act.  Given advice from DFAT that the overwhelming majority of ethnic minority communities are integrated into Iranian society and that Iran’s laws do not discriminate on the basis of ethnicity, as well as the fact the applicant has not experienced serious or significant harm as a Kurd in the past in Iran, the Tribunal finds the applicant does not face a real chance of serious harm or a real risk of significant harm on return to Iran on the basis of his ethnicity. 

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

    Returnee from the west and failed asylum seeker

20. The Tribunal has considered if the applicant faces a well-founded fear of persecution or a real risk of significant harm if returned to Iran as a returnee from the west and failed asylum seeker. 

21. In response to the NOICC the representative submitted that given recent terrorist related events, the heavy handed response by the authorities against Kurds, and the fact the applicant has not been in Iran for several years, he will be in real danger of being accused of collaborating with terrorists if he shows up at any Iranian border.

22. As an Iranian citizen the Tribunal is satisfied the applicant would be able to obtain an Iranian passport and return to Iran.  The Tribunal accepts he may be questioned, given he will potentially re-enter on a new Iranian passport.  However there is nothing before the Tribunal to indicate that such questioning would lead to harm or would create difficulty for the applicant and his children. 

23. As discussed at hearing, with regards to treatment of returnees and failed asylum seekers, DFAT relevantly assesses that:

    According to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities. In such cases the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. [15]

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

24. Given such country information, and the fact the applicant has no adverse profile, the Tribunal does not accept the applicant would come to the adverse attention of the authorities such that it would result in a real chance of serious harm or a real risk of significant harm on return to Iran, perceived to be ‘westernised’ or having spent considerable time in the west or as a failed asylum seeker.  It does not accept that he will be accused of having collaborated with terrorists, as submitted.

    Other (protection-related) claims

25. At hearing the applicant’s representative said that there is a serious chance of a war between the United States (US) and Iran.  DFAT confirms that economic and political sanctions have been imposed on Iran since 2006 and the international deal that placed limits on Iran’s nuclear program has yet to result in significant improvements to the Iranian economy and is strongly opposed by the current US administration.[16] The Tribunal accepts that tensions between Iran and the US have increased recently, with the US imposing harsher sanctions on Iran. However on the information before it, the Tribunal considers the suggestion that Iran and the US may go to war to be merely speculative. For these reasons the Tribunal is not satisfied there is a real chance or real risk that the applicant will face serious or significant harm if returned to Iran.

    [16] Ibid at 2.3

26. For the reasons above, considered individually and cumulatively, the Tribunal finds the applicant does not face a well-founded fear of persecution on return to Iran on any of the grounds advanced, or a real risk of significant harm if removed from Australia to Iran. Accordingly the Tribunal is not satisfied that the applicant’s removal from Australia would be in breach of its non-refoulement obligations under relevant international agreements if his visa is cancelled. 

27. Mandatory legal consequences to a cancellation decision: If the applicant’s visa is cancelled, the applicant will be an unlawful non-citizen and may be detained and liable for removal.  There are provisions in the Act which would prevent him from making a valid application for any visa without the Minister personally intervening. For the reasons set out above, the Tribunal has found the applicant’s removal from Australia would not be in breach of Australia’s non-refoulement obligations under relevant international agreements. It considers that as an Iranian citizen he will be able to safely return to Iran and the Tribunal does not accept that indefinite detention is a likely consequence of the cancellation decision.

28. Any other relevant matters: If the applicant’s visa is cancelled his extended family in Australia, whom his daughters are very close to, will be adversely affected.  Specifically [the second named applicant]’s [siblings] and their children. The Tribunal is satisfied that a significant degree of hardship may be caused to the applicant and in particular his daughters by separating from these family members in Australia, as well as to their relatives in Australia.

    EXERCISE OF DISCRETION

29. In exercising its discretion, the Tribunal gives significant weight to the fact that the applicant intentionally misled the Department on key matters at the visa application stage, including his statement that he was a stateless Faili Kurd which 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 discussed, the Tribunal considers that had the correct information been known he may not have been found to engage Australia’s protection obligations and the Tribunal considers it is inappropriate that he should benefit as a result of this incorrect information. 

30. However, in this case, having given careful consideration to all the relevant circumstances, the Tribunal considers that other matters to which it is required to have regard outweigh those matters which favour cancelling the applicant’s visa.  In particular the Tribunal gives weight to the following matters.

    a.For the reasons above the Tribunal has found that it is in the best interests of the applicant’s daughters (including one Australian citizen) to remain living in Australia with their mother, who is currently their primary carer.  Country information (as set out earlier) indicates considerable barriers to women and girls’ full participation in Iranian society and significant restrictions.  The Tribunal is obliged to treat the best interests of the children as a primary consideration and to consider Australia’s obligations under the CROC.

    b.The applicant appears to have worked hard to establish his life in Australia over almost a decade.  References have been provided to the Tribunal attesting to his work ethic, for example.

    c.Although the Tribunal has found cancellation of the applicant’s visa would not be in breach of Australia’s non-refoulement obligations, it accepts that there is a significant degree of discrimination and related hardship for ethnic minorities, including Kurds in Iran, as shown in the country information set out above (earlier).  This includes institutional discrimination which adversely affects their access to services and other opportunities.

    d.The applicant has consistently claimed that life was difficult in Iran, and increasingly so, which is why he and his then pregnant wife made the decision to leave (in 2010).  The applicant left school part way through year [number] and has held a number of semi-skilled or unskilled jobs thereafter.  Whilst not necessarily persecutory, the Tribunal is satisfied that given these considerations life would be difficult for the applicant and his daughters to a certain extent on return to Iran, particularly to a predominantly Kurdish area, which is adversely affected by ongoing sanctions and limited government services and resources, for example.

    CONCLUSION

1. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act.  Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

   DECISION

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

3. The Tribunal has no jurisdiction with respect to the other applicants.

   Nicole Burns
   Member

   
   

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)    purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)    was obtained because of a false or misleading statement, whether or not made knowingly.

   97Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

   98Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

   101Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   107Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)    giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)    stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e)    informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)    requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)    visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)    visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

   108Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)    having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.