1718773 (Refugee)

1718773 (Refugee) [2018] AATA 4250 (14 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1718773
COUNTRY OF REFERENCE:                  Iran
MEMBER:Rosa Gagliardi
DATE:14 September 2018
PLACE OF DECISION:  Melbourne
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 14 September 2018 at 4:13pm
CATCHWORDS
Refugee – Protection visa – Iran – cancellation – incorrect information – illegal maritime arrival – political association with anti-government demonstrators – applicant applied for protection visa for economic reasons – applicant’s father provided untruthful responses during visitor visa interview – delegate’s reasoning not persuasively made out – no non-compliance by the applicant in the way described in the s.107 notice – decision under review set aside

LEGISLATION
Migration Act 1958, ss 33, 46,101, 102, 103, 104, 105, 107, 109, 116
Migration Regulations 1994, r 2.41
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
George v Rockett (1990) 170 CLR 104
Kumar v MIMA [1999] FCA 156
MIEA v Pochi (1980) 44 FLR 41
MIEA v Wu Shan Liang (1996) 185 CLR 259
Plaintiff M64/2015 v MIBP (2015) 90 ALJR 197
SCAN v MIMIA [2002] FMCA 129
Sullivan v CASA (2014) 226 FCR 555
Tarasovski v MILGEA (1993) 45 FCR 570
Zhao v MIMA [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that he/she was satisfied that there had been non-compliance with section 101 of the Act. In considering the circumstances under r.2.41 the delegate found that the reasons to cancel the visa outweighed the reasons not to cancel the visa. 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 26 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s girlfriend, [Ms A], as well as from his friend [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s.107?
In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. 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.
Background
The applicant is [an age] year old Iranian citizen. He is a Shia Muslim and was born in Tehran. He arrived on Christmas Island as an Illegal Maritime arrival seeking asylum in Australia on 2 December 2010. He was granted a Protection visa on 15 December 2011, after having his adverse Refugee Status Assessment (RSA) reviewed by the Independent Merits Review. The applicant gave consistent evidence throughout the assessment and review process that he faced serious harm from the Iranian Government due to his involvement in anti-government demonstrations.
In a statement of claims lodged in association with his RSA, the applicant stated, in part, the following:
The reason why I left Iran started on 20 June 2009. I worked as [an Occupation 1]. At the time I was in the [office]. I noticed a lot of activity in the street and saw many people shouting in the street slogans like “Allah Akbar”.
I went to have a look what was happening. The government authorities has closed the roads and as the crowds got closer the authorities started throwing teargas into the crowd. As I was watching what was happening I was suddenly hit in the side with paintballs. I didn’t understand what was happening to me and noticed the colour on my side where I had been hit.
As I was leaving the area through various lanes I noticed several motorbikes following me and soon as they passed me they noticed the colour on my clothes. They stopped and intercepted me.
They told me I had to come with them and placed me on the motorbike with 2 other persons. I was taken to [an area] where they had their base. I was detained and taken to their base. I was detained until the next morning.
They then started interrogating me. I was asked many questions why I had been demonstrating and whether I had been involved in this demonstration but just happened to be there when the demonstration started.
I was asked to sign a declaration not to get involved with any demonstration or gatherings and was threatened that if I did get involved with anything illegal I would face many problems. I was then handed to the police station. The police informed my family to bring the deed of the house so that I could be released from detention. My family brought the deed and payslips to proof (sic) their income. I was then released. I was order to report to the police during festival days or any other gatherings to demonstrate I was abiding their requests.
These conditions that were placed on me made my life miserable and I was unable to live a normal life. For instance if I had to pass any type of gathering I would be at risk of being arrested.
I believe if I return to Iran I would face a real chance of being killed for reasons of political association with anti-government demonstrators.
I believe if I return to Iran I would be at a real risk of facing serious harm by the Basij police. They act without fear of prosecution and persecute people for the slightest reasons.
The Basij police operate on orders of the government and the religious Mullahs. They can arrest anybody on suspicion of involvement with anti-government activity and forcefully make people sign confession or conditions with fear of persecution.
I fear the government and their agents. I cannot ask for protection.
On 1 March 2016 the applicant’s father [lodged] an application for a class FA subclass 600 Tourist visa. In association with this application his father provided evidence of his pension payment [slip], dated [date] February 2016. This application was ultimately refused.
On 9 May 2016 the applicant’s father lodged another application for a subclass 600 visa. During this application process his father was interviewed by a Departmental officer on

11 May 2016. At the interview, the applicant’s father was asked the following questions and the Tribunal has set out the answers verbatim as reflected by the Department in its decision:
·How the (sic) the visa holder migrated to Australia? The visa holder (sic) father stated “that his son is a refugee in Australia and he decided to leave Iran after he graduated from university and started to work as [an Occupation 1]. He was unable to find a proper job and due to un-employment rate in Iran was the main reason he left (sic)”.
·Does the visa holder’s father receive a monthly pension salary? The visa holder (sic) father stated “that he receives his monthly pension salary and a copy was provided in his previous Tourist visa application”
·Does the visa holder’s father have any political issues in Iran or ever been arrested or convicted in Iran? The visa holder’s father stated “that he has never been arrested and/or had no political problems in Iran”.
The Department therefore concluded that, “Given the contradictory information provided by the visa holder’s father during his multiple Tourist visa applications, it appears that the visa holder provided incorrect information regarding his claims for a Protection visa. Therefore, I consider that at the time of his visa application the visa holder did not comply with section 101(b) of the Migration Act because he provided incorrect information at questions 42-46 of Form 866C in relation to his reasons for claiming protection”.
The Department went on to say, “Given the visa holder’s father’s comments it appears that the events claimed in the visa holder’s protection visa application appear not to have occurred, this suggests that the visa holder was not of adverse interest to the Iranian authorities and he did not hold the claimed adverse political profile”.
The Departmental decision then goes on to provide the applicant’s statements against questions 42-46 of Form 866C, providing an opinion about why the information was incorrect, given that the applicant’s father had, in an interview held on 9 May 2016, “contradicted” the applicant’s claims to be a refugee.
In response to the relevant Notice of Intention to Consider Cancellation (NOICC) sent to the applicant, he submitted:
·That he has not provided, or caused to have provided incorrect information/replies to the Department at any stage.
·
That his father’s pension payments ceased from August 2011 and he was arrested. He had financial difficulties and he was upset and wrote several letters to the [Parliament] members stating the law under s96(1) Civil procedure rules in Iran:

“Section VII – Seizing the rights of employees
Article 96 – One quarter or one third of the pension or benefits of the employees of government or government-related organizations and institutes and companies and city councils and banks and companies and private businesses and other similar entities is seized provided they have a wife or children.
1) Seizing and deduction of a quarter of individuals’ pension or entitlement – the subject of this article – is on the condition that it is the pensioner or the entitlement payee’s debt.
2) Salaries and benefits are not seized if they are part of the troops are at war”.
·That following these letters his father’s pension payments were reinstated in January 2013, three years prior to providing copies of his payment with his Tourist visa application.
·That phone tapping is one way that the Iranian Government controls people’s freedom. That his father provided incorrect answers at time of telephone interview with an officer of the Department regarding the visa holder’s reasons for not leaving Iran, and his own political issues because the right answer over the telephone could cause trouble for him. That open source internet searches reveal that phone tapping is a common fear in Iranian society.
·That he did not have a court order and he was not on the airport watch list when he departed Iran from Tehran Khomeini Airport.
·That he escaped from Iran due to the Iranian authorities watching and pressuring him. That he could not continue his profession as an [Occupation 2] or continue his education.
The Tribunal hearing
The applicant repeated his account that he was working [in] Tehran [when] the demonstration occurred and he went to see what was happening in June 2009. He states that he got caught up in the affray. He stated that he was dissatisfied with what the government was doing and that his ideology aligned with that of the protestors. Asked precisely what the ideology of the applicant might be, he responded that he thought that the elections had been rigged and was generally dissatisfied. There were so many injustices perpetrated against people who had political views that differed from the government. The applicant stated that he had previously partaken in demonstrations in Iran a few times in relation to the workers’ laws and the labourer’s syndicates.
Asked about his family’s circumstances the applicant stated that both his parents were living and that his father had worked [in a specified area] in Iran. The Tribunal probed how the applicant’s father viewed his political participation. The applicant stated that his father had been raised [with] discipline and was not in favour of dissonance against the government. His father warned him not to get involved in politics.
The applicant stated that in the crowd there were security guards and Basij and they used tear gas on the participants of the demonstration. The applicant stated that it was now ten years ago so it would not be possible to find someone to provide evidence that he had been caught up in the demonstration. Asked if he had posted anything on social media about the event, the applicant responded that at that time, social media was not as strong as it is now – even access to the internet was limited. At the time they expressed their opinions to each other. The Tribunal asked whether the applicant expressed his political views in Australia now that he was free to do so. He stated that he could, but he had concerns about the safety of his family in Iran and was trying not to express his views on social media now.
The applicant then recounted the events outlined in his statement as set out in this decision. The Tribunal noted that the applicant was required to attend the police station on a regular basis and asked him how it was possible for him to leave Tehran. The applicant stated that it was true that that he was required to report to the police, but that did not mean he could not leave the country. He was able to be released from prison because his father was able to show he had an income. When asked if he was considered a high profile political dissident in the eyes of the Iranian authorities, the applicant stated that they only wanted him to report and to give undertakings that he would not participate in future demonstrations. He left Iran after about a year.
In terms of the cancellation the Tribunal noted that the applicant’s father wanted to travel to Australia to visit the applicant. At the time the Departmental officials rang the applicant’s father who gave information that was contrary to the applicant’s protection claims, indicating that the applicant came to Australia for work purposes.
The applicant explained that his father was fearful about his phone being monitored by the authorities. The applicant stated that his father had not told the Department that he had reservations about speaking to them openly because they had initially interviewed his wife and all they had asked her was why she wanted to come to Australia. They had not raised the issue of the circumstances in which their son had left Iran. Hence, his father was happy to speak to the Department on the basis that they would ask very general questions about some aspects of his own circumstances, not the applicant’s.
When the Department rang his father, the applicant stated that his father had had his pension reinstated. He had had it reinstated in 2013. The Tribunal asked why the authorities had started to reinstate his father’s pension when the applicant had left Iran. He stated that his father was a retired member of [a government agency] and he tried to see his [colleagues] he was connected with to have his pension reinstated. During the time he had had his pension suspended he had had to [work as an Occupation 1] and the earnings were not enough to maintain the family.
The applicant confirmed that he had never returned to Iran since he left. He stated that he only met his family in [Country 1] in 2014 because he could not return to Iran after what had happened to him.
The Tribunal asked the applicant to explain how he could have left Iran on his own passport if he was on bail. The Tribunal noted that the country information indicated that there were three lots of checks at the airports and that if he was someone who was registered as having an issue with the government, his name would have appeared on the immigration officials’ screens at the airport. The applicant stated that he did not have difficulty through the various stages.
The Tribunal turned to the prescribed circumstances it was required to consider under Regulation 2.41. The applicant stated that he considered himself an Australian person even if his visa had been cancelled. He abided by the laws of the country and was also a licensed [Occupation 2] and considered himself beneficial to Australian society. His main job was in [details deleted] and his experience and skills were useful because the industry was growing.
The migration agent submitted that the applicant had a proven record of assisting disadvantaged persons in the community, including disabled persons and asylum seekers. The applicant confirmed this to be the case
The applicant stated that he had always paid his taxes and conducted himself lawfully. He had never been reliant on welfare in Australia. He had established his company quite recently and was able to employ Australian citizens and permanent residents and there was potential to expand his business. He was also engaging an apprentice. The applicant stated that Australia presented a new opportunity for him. He was able to grow and forget about the things that had happened to him in the past. After that he really tried his hardest to repay Australia for the opportunities provided to him by doing good things and being a lawful resident. The applicant stated that as soon as he started to derive an income he donated to charities in keeping with his religious beliefs.
The applicant stated that his visa cancellation was a big blow to him and that as a result he had great anxieties. Despite this he pushed to progress to obtain his qualifications. The applicant stated that it had been very difficult for him to return to the memories of his circumstances in Iran, but he was trying hard to be of value to the community and to get peace and serenity in his life.
In terms of who might be affected by the cancellation, the applicant stated that his girlfriend would be. They had been together for three years and she had a [child]. He stated that the child called him uncle and it was a good relationship. The applicant was frank in stating that the child’s father still wanted to be involved in the child’s life.
The migration agent stated that the father of the applicant would be happy to travel outside his country, [so] that the Tribunal would be able to take evidence from his father without him having concerns about his phone being monitored by the Iranian authorities. This was even though the applicant’s father was now changed after the problems he had experienced and was not the same person he was prior to the trouble with the authorities. The Tribunal stated that it held concerns about the applicant’s father undertaking any trip that would cause him hardship. The Tribunal was not insisting that this occur. The Tribunal would also accept communication from his father as evidence.
[Ms A] – the applicant’s girlfriend

[Ms A] reiterated that the applicant was a licensed [Occupation 2] and was contributing to the community. He was a person with a sense of responsibility. [Ms A] stated that she would be adversely affected if his visa were cancelled because the applicant had become part of her life and he had supported her a lot even though they were not living together. He also assisted her son who loved the applicant very much. She stated that even though the applicant came as a refugee, he had done his best to become independent economically. She stated that they hoped to marry when they were able to overcome some difficulties.
[Ms B] - friend
[Ms B] stated that she had submitted a statutory declaration in support of the applicant. She stated that he was a good person and had established his life in Australia and had a business. She stated that she was not clear why his visa had been cancelled. She stated that she, her family and friends would be devastated if the applicant were not permitted to remain in Australia.
The migration agent has submitted several submissions contending that the applicant had never provided incorrect information to the Department. In the submission dated 17 April 2018, it was written, among other things, that the applicant confirms:
He has not provided and caused to be provided any incorrect information to the Department at any stage including his arrival interview, his visa interview and his statement dated 5 December 2011.
The contradictory information that his father [provided] during his Class FA Visitor visa (Subclass 600) interview application to the officer on 11 May was not correct and such information was provided in circumstances where his father was under the impression that his phone line might have been monitored by the Iranian intelligence authorities. [The applicant] also restates that his father’s pension had been suspended as a consequence of his non-compliance with the Iranian authorities. Since then, [the applicant]’s father exercised high degree of cautious (sic) in every aspect of his social behaviour and when contacted by the Australian Embassy on
11 May 2016, he provided incorrect information in order to avoid potential trouble from the Iranian authorities in the event that the phone conversation was monitored and recorded by the Iranian intelligence agencies.
[The applicant] agrees that his father provided copies of his pension payment slips for his Visitor visa application but also restates that his father’s pension was ceased and he was arrested after his departure from Iran. The pension was only restored after one year and after being released from detention and having written several letters and requests to an Iranian member of parliament and [a government agency]. Therefore, at the time of submission of his father’s application, his pension had been restored.
Other evidence submitted includes:
·Evidence of the applicant being a licensed [Occupation 2], having attained a [qualification] in Australia which was issued [in] September 2017;
·Statutory declaration by [Ms B], [dated] 13 April 2018, stating that that she and applicant had spent many years socialising, including with family and friends and that the applicant was “a kind, generous and genuine person who had worked hard to establish a life here in Australia. He is active in the local community through his work as a tradie, and is part of the diversity that we celebrate in Australia…”;
·Evidence of payment of taxation by the applicant;
·Photographic material depicting the applicant in [Country 1] with his family in 2014;
·
Evidence of the applicant’s Convention Travel Document along with the relevant pages bearing the [Country 1] border authorities’ entry and exit stamps dated

[date] March 2014 and 1[date] April 2014 respectively, as well as a copy of a visitor visa he obtained from the [Country 1 authority] for the purpose of the visit. In the accompanying submission the migration agent wrote, “We submit that the fact that our client was in possession of a Single-Entry visa to [Country 1] and the evidence of the entry and exit stamps to and from [Country 1] in his Convention Travel Document indicate that he stayed the whole period of his absence from Australia in [Country 1] only and did not travel to any other country including Iran where his life was at risk and fled from for the risk of persecution”.
·Copies of Iranian passports belonging to the applicant’s [family members], all bearing the [Country 1] border authorities’ entry and exit stamps dated [date] March 2014 and [date] April 2014. The migration agent submitted, “despite being much more cost effective and less expensive for him to travel back to Iran to visit his family and in consideration of the fact his father who still had to [work as an Occupation 1] in order to meet ends (sic) and suffered from the financial hardship of his pension being suspended, could not afford two weeks of overseas trip of such a large family group, yet our client chose to pay for the cost of the travel of his parents and [other] family members and met them in [Country 1] rather than travelling back to Iran, a fact that indicates that our client had a real and genuine fear of harm of returning to Iran”.
·
Certified translation of a letter sent by the applicant’s father to the Tribunal, dated

2 May 2018, stating among other things that the applicant departed Iran and took asylum in Australia due to political problems which resulted in his arrest arising from the presidential election in 2009. [The applicant’s father] states that he bailed his son because people who were arrested faced torture and long-term sentences, so the applicant used the opportunity to leave Iran. He further wrote:
After my son’s departure from Iran, I appealed for the suspension of my pensions on several occasions till 2014 when I managed to restore my pension after three years through many correspondences with my former [colleagues] and contacts with some members of parliament. I applied for a tourist visa together with my wife to visit my son so that we could meet him again. My visa [application] was not approved and I applied again. This time I was contacted by the Australian Embassy in Tehran and the caller asked me questions to which I could not tell the truth in response because of being in a situation where I was sitting next to my colleagues [and] having the fear of my phone being tapped by security forces as well as the fear of having those problems back. I was forced not to tell the truth due to the fear of my phone being tapped by security forces and re-suspension of my pension”.
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(b) because it was considered that the applicant provided incorrect information about his purpose in coming to Australia which undermined his protection claims.
The Tribunal has considered the information contained in the NOICC, the applicant’s response to the NOICC and other relevant evidence before it to assess whether the grounds for cancelling the visa is made out. In doing so, the key question to consider is whether there is sufficient evidence to reach a real state of satisfaction that incorrect information was provided. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context. However, where as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Tribunal. In Zhao v MIMA, the Court stated:
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 because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[1]
[1] Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000.
The Tribunal appreciates that the comments in Zhao were made in respect of the cancellations under s.116, but they are also applicable to cancellations under s.109.
Furthermore, although the principles enunciated in Briginshaw v Briginshaw [2] have no direct application in the context of administrative decision making,[3] in the context of s.109, particularly where questions of fraud are involved, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.[4]
[2] (1938) 60 CLR 336. In that case, Dixon J held at 362 that in civil matters, ‘the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]’.
[3] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282, Kumar v MIMA [1999] FCA 156 (Kenny J, 26 February 1999) at [35], SCAN v MIMIA [2002] FMCA 129 (Raphael FM, 9 July 2002) at [10], and the cases discussed.
[4] Tarasovski v MILGEA (1993) 45 FCR 570 at 572-3 and Singh v MIEA (unreported, Sackville J, Federal Court of Australia, 6 December 1994) at [16].
Having identified possible facts which could give rise to the cancellation power, the Tribunal must go on to be satisfied of those facts (or decide that they have occurred), before the cancellation power is enlivened. In forming a state of satisfaction, the decision-maker must ‘feel an actual persuasion – an inclination of the mind towards assenting to, rather than rejecting, a proposition’.[5]
[5] Plaintiff M64/2015 v MIBP (2015) 90 ALJR 197, per Gageler J, at [64], referring to Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 and George v Rockett (1990) 170 CLR 104 at 116.
To find that non-compliance or a ground is made out, the Tribunal must be reasonably satisfied that the non-compliance occurred or that the ground for cancellation exists. ‘Reasonable’ in this sense means that the Tribunal’s conclusions must be based on logically probative material.[6]
[6] See e.g. MIEA v Pochi (1980) 44 FLR 41 at 62.
In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences to a party, the Tribunal is free to consider the evidence and other materials before it; and that it might express more caution in evaluating the factual foundation for more centrally relevant facts.[7] The Tribunal is not bound to apply the principle in Briginshaw v Briginshaw that the strength of evidence necessary to make a finding may be greater if the consequences of that finding are serious, but it is not prohibited from applying it if it sees fit.[8] The Court noted that s.33(1)(c) of the Administrative Appeals Tribunal Act 1975, which provided that the Tribunal is not ‘bound’ to apply rules of evidence, was not a prohibition upon the tribunal applying those rules, but imposing a requirement to apply the rule in Briginshaw in making factual findings would be an unnecessary constraint upon the Tribunal’s freedom to employ such procedures at it sees fit in undertaking its fact-finding role.[9]
[7] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120], applied by the AAT in 1702551 (Migration) [2017] AATA 1415 (Redfern DP and Member Murphy, 22 August 2017).
[8] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [121], referring to Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362, ‘… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…’.
[9] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [122].
The applicant has consistently argued that he had been arrested in 2009 because he became involved in protests and was required to report to the police. The Tribunal had questions about how the applicant was asked to report to the police and not to leave Iran, but was able to leave Tehran airport without difficulty. Nonetheless, the applicant at hearing did not argue that he had a high profile as a political dissonant. In the context of the time, it is plausible that he, along with many others who had been involved in protests, were required to report to the police and not leave Iran, however, whether such low level activists with imputed political opinions would be placed on any watch list at the airport, is debatable. The applicant has not argued to be an organiser of the protests or that he had a profile with the authorities previously for his actual or imputed political opinion. From his evidence it appears that he claims he became caught up in the protests more by chance, even though he shared the protestors’ ideology. The Tribunal has concerns that any low level protestor who might have been arrested for a period would necessarily be placed on a watch list in Tehran. Country information indicates that high profile dissidents were of most interest to the government after the protests of 2009:
Human and civil rights defenders
Human and civil rights defenders (and those that defend them in court) are subject to adverse attention from the Iranian authorities. Human and civil rights defenders have been sentenced to prison terms on charges such as ‘acting against national security’ for acts such as writing letters critical of the human rights situation in Iran. In the wake of the 2009 protests, many human rights lawyers were arrested. All but one have now been released. Those released face harassment, interrogations and disbarment. Many have left the country…
Political activists are subject to mistreatment from the Iranian authorities. The Iranian authorities routinely suppress free speech and punish public criticism of the regime, particularly in the lead up to significant events, such as the May 2017 Presidential elections. Political activists who are perceived to cross vague and frequently shifting red lines are often charged and sentenced under offences such as ‘propaganda against the State’, ‘insulting Islamic values or the Prophets’ and ‘insulting the Supreme Leader’, which can carry lengthy prison terms. The charge of insulting the Supreme Leader can also ensnare ordinary citizens who are not political activists. Political prisoners are occasionally given suspended sentences and released on bail with the understanding that renewed political activity could return them to prison.[10]
[10] Australian Government, Department of Home Affairs, Country of Origin Information Services Section, Iran, 20 March 2018.
The Tribunal does not intend to re-open the merits of the applicant’s protection claims. It’s inquiry is required to be restricted to the matters particularised in the s.107 notice. The Tribunal has merely looked at the country information to assess the plausibility of whether someone who had been arrested in the context of the 2009 protests would necessarily be considered by the Iranian authorities at that time, as an enemy of the state and someone who should not be permitted to leave the country. In its decision the Department considered that the applicant’s credibility overall was diminished because he had been able to leave Tehran airport and that, ipso facto, the applicant had not told the truth about his claims about having been arrested, and therefore had provided incorrect information in his visa application, and therefore was in breach of s.101(b).
The Tribunal does not accept that it follows that had the applicant been arrested and involved in protests in 2009, that he would have necessarily been considered of such significance to the authorities that his name would have been placed on a watch list. Conversely, it does not follow that the fact that the applicant was not placed on a watch list precludes there having been a real chance that on return to Iran the applicant would have suffered real harm on account of his actions in being involved in protests and having come to the attention of the authorities. In the view of the Tribunal such findings about the applicant’s credibility on the basis of the information are not sustainable. The fact that the applicant has never returned to Iran and that instead his extended family travelled to [Country 1] to see him in 2014 at great expense, and well after the applicant’s Protection visa had been granted on 15 December 2011, would support the Tribunal’s contention that there is no persuasive evidence that the applicant did not provide a visa application that was correct.
Many Iranians who came to Australia at the time the applicant did, claimed they had suffered persecution in Iran but proceeded to return to Iran for various reasons, undermining those applicants’ claims that they feared persecution. Subsequently such visas were cancelled on the basis that incorrect information had been submitted in their visa applications. Given the frequency of return by some persons who had been granted protection to their claimed country of persecution, had the applicant not feared serious harm in his home country, he could well have pursued the actions of his co-nationals in Australia, to return to see his family. Further, in 2014 it is difficult to see how the applicant would have foreseen that the Department would proceed to cancel visas in circumstances where those granted Protection visas returned to their home country. The Tribunal considers it highly unlikely that the applicant only travelled to [Country 1] to meet his family on the basis of fear he might be being monitored by the Australian immigration authorities. In 2014 the applicant had held his protection visa for three years and could easily have been lulled into a false sense of security about Australia’s immigration authorities’ operations, if he had not feared persecution in his home country.
The Department also drew the conclusion that because the applicant’s father provided information during the course of his Tourist visa application that was inconsistent with the applicant’s protection claims, that it was the applicant who had provided incorrect information. On the basis of little probative evidence it was concluded that the applicant’s father had told the truth about the applicant coming to Australia because he could not find work, although the Tribunal notes that the applicant’s father did use the word “refugee” in his responses to the Department in referring to the applicant in applying for his Tourist visa.
The Tribunal asks, however, what the incentives for the applicant’s father to be forthright and honest about his family’s circumstances in applying for a Visitor visa, might have been. It is unlikely that the Department would have considered the applicant’s father’s Tourist visa favourably had he offered that his family had been in trouble with the authorities as a result of his son’s involvement in protest rallies, and that he himself had had his pension suspended for a while. Such revelations would not assist persuade the Department that the applicant’s father was a genuine visitor and only intended a temporary stay in Australia. It is argued by most visitors who come to Australia and then apply for protection, that they had misled the Department about the level of their security in their home country because they knew that had they provided a realistic account of their circumstances, they might have been denied a Tourist visa.

The Tribunal is not arguing that the applicant’s father was attempting to be less than straight forward in his Tourist visa application because he intended to apply for Protection in Australia. Nonetheless, it would have been evident to him that speaking to the Department about his family’s past and the applicant’s in particular, might not assist him achieve his goal to visit his son. The applicant’s father, it is argued, thought that he would be asked straight forward questions as were asked of his wife, being, “Why do you want to come to Australia?”, “How long do you want to come for”, etc. When questions were asked about the applicant’s circumstances in coming to Australia, his father did indicate that his son was a refugee but that he had left for economic reasons. The Tribunal does not consider that it is far-fetched that the applicant’s father gave anodyne responses about the applicant’s departure from Iran, lest it also drew attention to his own problems in having his pension suspended, thereby creating difficulties with whether the applicant’s parents could afford to travel, including raising questions about their true motives in travelling to Australia.
The Department also was concerned that the applicant’s father stated he received a pension and was able to provide evidence that he did so when he applied for a Visitor visa in 2016. In applying for a Visitor visa there is no requirement to disclose periods of interruption to sources of income, and indeed it would not have been in the interests of the applicant to disclose his former problems with the authorities. The Tribunal is not satisfied that the fact the applicant was receiving a pension at the time the applicant’s father applied for a Tourist visa shows that the applicant provided incorrect information in his application for a protection visa. Nor can it be assumed by the applicant’s father’s omission in referring to the suspension in his pension during the course of his Tourist visa application, that this event did not occur.
It has also been advanced by the applicant and the applicant’s father himself that he also had concerns about speaking about the family’s circumstances over the phone. Country information confirms that many Iranians, including political activists, are worried about the country’s surveillance efforts, particularly since the 2009 crackdown.[11]
[11]
When Mohammad Javad Azari Jahromi was nominated to lead the country’s Communications Ministry several years ago, this gave rise to concern among the human rights community, given his alleged role in the 2009 state crackdown and Jahromi’s work in the feared Intelligence Ministry from 2005-2009 which built parts of “Iran’s massive surveillance infrastructure”. [12] The opposition website Kalame.com claimed that Jahromi had become the head of surveillance at the Intelligence Ministry in 2009 and that “The choice resulted in the expansion of the state surveillance and its use in the crackdown [on protestors.” [13] Jahromi denied the allegations. Whatever the reality in regards to Jahromi, Iranians generally continue to have a pervasive fear they are being monitored over the phone and via other media:
One of the biggest concerns of civil activists and general Iranian user community over the past two years has become the tapping of text messages by state intelligence and security organisations. The concern is well-founded: many online services such as Telegram, Facebook, and Gmail send access codes as an SMS to authenticate their users and if hackers gain access to these codes, they can easily access the accounts.
In this method [ hackers who have the phone numbers of their victims go to the login page of the Telegram app, choose “Send code via SMS”, tap the user’s text messages, intercept the five-digit number the company sends to the user’s mobile phone via SMS, and enter the user’s account.
Dozens of such attacks on the Gmail, Telegram, Facebook and Instagram accounts of journalists and political activists in Iran have been reported to Centre for Human Rights in Iran (CHRI) by the victims. CHRI’s research indicates that the targets of state hacking are chosen due to their political activities, as there is no evidence of any non-political citizens among the victims of this hacking method.
This form of cyberattack is only possible with the cooperation of companies who provide phone services and Iran’s Telecommunications Company. It is not possible for anyone except those who have access to these companies and their infrastructure to carry out these attacks. As such, one can conclude these are state-sponsored cyberattacks.[14]
While the article above refers to other than phone tapping, it is not difficult to see how, in such an environment, there would creep into the community’s consciousness unease about who might be watching them; when and how. The Tribunal does not conclude that the applicant’s father was indeed being monitored over the phone when the applicant’s father was interviewed over the phone by the Departmental officer. And even if he was not being monitored, it does not detract from the well-founded fear by Iranians that their communications are not entirely safe from state scrutiny.
It is clear from the Tribunal’s reasoning that it is not satisfied that the applicant’s father gave the Department truthful responses when interviewed in relation to his Visitor visa application. In questioning the reliability of the applicant’s father’s evidence to the Department in circumstances where it is plausible that he was attempting to put forward a favourable impression of his family members as genuine visitors, and in circumstances where caution in speaking over the phone about matters affecting the security of Iran is commonplace, the Tribunal is left to find that the nexus between the applicant’s father’s information and the applicant providing incorrect information in his protection visa application does not exist.
The Tribunal is therefore not satisfied that the applicant’s ‘visa application information’ constitutes evidence that the applicant was not fleeing Iran in the circumstances he set out in his application. The evidence to suggest that the applicant’s father’s evidence at interview with the Department in 2016 should be preferred over that of the applicant has not persuasively been made out.
For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Rosa Gagliardi
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.

CXC90406612319: “Alleged Role in State Crackdown Haunts Rohani’s New Communications Minister”, Radio Free Europe/Radio Liberty (RFE/RL), 20 August 2017, accessed on
12 September 2018.

4 ibid;
⁵ ibid;
⁶CXBB8A1DA354: “Message Tapping”, Center for Human Rights in Iran (United States), 09 January 2018, accessed on 12 September 2018.

[2018] AATA 4250

14 September 2018

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