1720247 (Refugee)

1720247 (Refugee) [2018] AATA 1304 (23 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1720247
COUNTRY OF REFERENCE:                  Iran
MEMBER:A B Baker
DATE:23 April 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 23 April 2018 at 2:19pm

CATCHWORDS
Refugee – Protection visa – Cancellation – Iran – Whether the grounds for cancellation is made out – False information provided – Bogus documentation – False passport – Departed Iran lawfully on his own passport – No adverse profile of risk – Did not desert from his national service – New claim – Converted to Christianity – Would be persecuted in Iran as an apostate – Denied providing incorrect answers

LEGISLATION
Migration Act 1958 ss 46, 46A, 48A, 101, 107, 109
Migration Regulations 1994 r 2.41 Schedule 2
CASES
Pei Lan He v Minister for Immigration and Multicultural Affairs [2001] FCA 446
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 the applicant provided false information to the department in his application for a protection 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 9 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
BACKGROUND
The applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review.
In that decision, the applicant identified himself as a [age] year old citizen of Iran born on [date]. He claims to be a Faili Kurd born and raised in Tehran and is a Shi’a Muslim.
He claims to have fled Iran because he has a well-founded fear of persecution from Iranian security agencies for the following reasons:
a.He is an ethnic Kurd
b.He has been targeted by the Basij in the past.
c.If he is deported to Iran from a western country he will be seen as a failed asylum seeker.
d.Iranian authorities will assume he is against the regime
e.He has been critical of the regime in the past
f.He departed the country illegally on a false passport in the name of [Mr A].
g.He did not complete his national service and deserted the army after rescuing a friend who was a political prisoner on the army base where he was serving
h.He fears being jailed, tortured or killed for these reasons.
The applicant was granted a protection visa based on these claims on [date] August 2011.
The applicant departed Australia on [date] November 2012 and upon his return on [date] January 2013, he was questioned by border officers. The applicant was found to be in possession of an Iranian passport in his name. That passport showed an exit visa from Tehran dated [March] 2010.
In coming to a decision to cancel his visa, the delegate found that this indicated that the applicant did not depart Iran unlawfully on a false passport as claimed, but on a lawfully issued passport in his own name. The delegate also formed a view that the applicant was allowed to re-enter Iran on this passport, thus demonstrating that he did not have an adverse profile in Iran. The delegate proceeded to cancel the applicant’s visa.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Migration Act in the following respects:
a.In completing the application form for a Protection (Class XA) visa which includes forms 866B and C, the applicant made the following claims:
i.He did not have a passport in Iran because he had deserted from his national service. A smuggler organised a false passport in the name of [Mr A] for him so that he could leave Iran.
ii.He cannot return to Iran because he is a deserter and departed illegally and also because he is a Kurd and has been targeted by the Basij in the past because of that and his activities in the Green Movement. As a failed asylum seeker he would also be of interest to the authorities.
Subsequently a number of circumstances arose such that these claims were questioned by the department, including the following:
a.The applicant departed Australia on [date] November 2012 and returned on [date] January 2013. He was found to be carrying an Iranian passport issued by the Iranian authorities in Canberra on [date] 2012, in his name. The passport had entry and exit stamps for Iran, including, relevantly one dated [March] 2010
Based on this information, the department found that the applicant had departed Iran lawfully on his own identity on [date] March 2010 and returned on [date] November 2012 before departing again on [date] December 2012. On the basis of this information the department formed a view that that the time of his application for a Protection Visa he did not hold the adverse profile of risk that he claimed, in particular, that he had previously been known as [Mr A] which was an alias used in a false Iranian passport. The department formed a view that this information was incorrect as the information at hand confirms that he lawfully departed Iran on [date] March 2010 using a passport issued in his own name.
The department also found that the applicant provided incorrect information in relation to his claim that he deserted his national service on [date] August 2009 and as a result could not obtain an Iranian passport. Having found that the applicant has a genuine and lawfully issued Iranian passport in his name, the delegate formed the view that the applicant did not desert from his national service. The department also found that the applicant’s account of events in Iran prior to his departure which stem from these claims, are also incorrect.
In his response to the s.107 notice the applicant claimed that he provided correct information to the Department at all times and maintained that all of the information he provided in his statement is true. The applicant denies non-compliance with section 101(b) of the Migration Act.
The applicant claimed that he was able to obtain an Iranian passport via payment of a bribe to an agent in Iran and not because of any incorrect information provided to the Department in his application. He claims that he sent his brother in law an amount of AUD$[amount] to pay agents in Iran to “secure the paperwork in Iran to ensure that the Iranian embassy in Canberra would issue my passport.” He further claimed that he was instructed by the agent in Iran to travel to and depart Iran on specific dates (and that he would be removed from relevant records from those dates) in order to navigate the country’s strict entry and exit procedures without coming to the adverse attention of the Iranian authorities.
The delegate found that the visa holder provided incorrect information to the Department in his application for his Protection visa in response to the following questions:
a.Form 866C, Q4 – In listing an alias of “[Mr A]” as the name used on the passport on which he left Iran
b.Form 866C Q30 –That he held a false passport which was subsequently taken by a smuggler,
c.Form 866C Q 42 – that he left Iran on [date] March 2010- after helping a political prisoner escape, falsifying his military record and eventually deserting military service on [date] August 2009,
d.Form 866C 43-46 – that as a Kurd, a failed asylum seeker and an army deserter he would be persecuted by the Iranian authorities and security agencies and possibly killed and he could not rely on the protection of the state because it was the agents of the state that would harm him.
e.Form 866C Q47-49 that he left Imam Khomeini International Airport illegally
The delegate therefore found that the applicant was in breach of s.101(b). Having considered and weighed all the relevant matters, the delegate cancelled the applicant’s visa under s.109 of the Migration Act.
The Tribunal has considered the applicant’s statements and information provided in relation to his protection claim and other material on the department’s file.
The applicant has also provided additional material to the Tribunal including a new claim that he has converted to Christianity, along with the following:
a.2 statutory declarations from the applicant dated [June] 2010 and [January] 2018;
b.PAYG summary
c.National police certificate dated [June] 2017
d.Various correspondence from previous employers
e.Copies of travel arrangements
f.Statements from friends and colleagues attesting to the good character of the applicant
g.Copies of visitor visa applications of the applicant’s parents including associated documentation
h.Copies of court documents dated [April] 2010 – subpoena to the applicant for unnamed reasons, unsigned
i.Evidence of money transfers
j.Psychologist report
k.Bank statements
l.Copies of health reports
m.Certificate of the applicant’s baptism
n.A variety of untranslated documents
The applicant’s statutory declaration of [January] 2018 is summarised as follows:
a.Everything he has previously said in all his statement to support his case is true and correct. His account of leaving Iran is true as is his account of how he managed to go back to Iran.
b.Although an Iranian citizen he and his family were discriminated against as Kurds
c.He went to University and completed an Advanced [Diploma] but could not get his diploma unless he completed his military service which he did not want to do. He opened a business which was successful but ultimately closed down because he did not have a business registration, again, because he had not done his military service.
d.He commenced his military service in March 2007 at [age] and suffered discrimination and mistreatment because he was a Kurd and not strictly religious.
e.He and his friend [Mr B] forged their military records to show that they completed their service as required, removing the additional three months that he claimed that he had to serve because he did not commence his military service until he was [age] years old instead of [age] years old.
f.He provided a detailed account of how he obtained an Iranian passport, including by firstly reporting his original passport as stolen in Australia in around June 2012 and then engaging an agent in Iran to bribe officials in Canberra and at the airport.
g.Two of his brothers came to Australia after his arrival and one has received a protection visa whilst the other is waiting for a decision
h.An account of his conversion to Christianity along with his political activities in Iran.
i.An account of his life in Australia
On 5 February 2018 the applicant’s representative provided a comprehensive submission in support of the applicant traversing matters covered by the applicant in his statement in additional detail and supported by relevant independent country information.
After the Tribunal hearing the Tribunal wrote to the applicant asking for his comments on information that suggested he would be safe if he returned to Iran as a practicing Christian. Those comments, along with information from a number of other documents regarding that matter and the applicant’s conversion to Christianity were provided to the Tribunal. Where relevant, that material is incorporated into the Tribunal’s consideration of claims and evidence below.
TRIBUNAL HEARING
The Tribunal questioned the applicant about his false passport and he claims that he received it from the people smuggler who organised his departure. He claims that he received the passport immediately before the flight from Iran and was taken from him when he departed [Country 1]. Asked why it was taken from him he claimed that the smuggler told them to return the passports and that they shouldn’t have them in Australia.
The applicant told the Tribunal that in December 2016 the department asked for his documents and he provided them to him. He disputed the account in the delegate’s decision that he was interviewed at the airport and that his Iranian passport was discovered at that time.
The Tribunal put to the applicant that his Iranian passport confirmed his exits and re-entry from Iran. The Tribunal put to the applicant that the department had determined that the passport was a genuine document and lawfully issued and asked him to provide a full account of how he came to acquire the passport in question.
The applicant told the Tribunal that when he returned from Thailand in March 2012 a couple of months later his brother in law contacted him to tell him that his mother was sick. The applicant said that his brother in law offered to find a false passport for him but he said it was too risky for him to return and they sought other solutions, such as travelling to [Country 2]. In any case, the applicant said that one of his father’s clients was an officer in the Passport Office and he arranged with him to organise a passport for him with an exit stamp dated in March 2010. The Tribunal asked the applicant why he would arrange for a passport in his own name if he had departed illegally. The Tribunal put to him that it seemed far more logical for him to get a passport in a false name so that the authorities had no chance of detaining him when he either entered or departed Iran, given that he claimed to have deserted military service. The applicant claimed that he and his friend [Mr B] forged their discharge documents to indicate that they had completed their service. When he finished his 18 months service and was obliged to do another three months because he was over 18 when he commenced his military service. He claims that he was issued his card after he finished 16 and a half months service.
He said that the document he provided the Tribunal was not a completion of service document. He said that he would have to have received a national service card but he never received the card because he deserted. He said that the commander had his card in his safe at the garrison. The Tribunal put to the applicant that if he had indeed deserted, surely all of that documentation, including his national service card, would have been changed to reflect that he had deserted. The applicant’s response to the Tribunal’s inquiries in this regard was convoluted and vague. Pressed to explain how it was that he was able to re-enter Iran on a passport issued in his name without being detained and made to complete his national service the applicant claimed that he paid a great deal of money to an agent in Iran to get a passport in Iran to show that he left Iran legally. The Tribunal put to the applicant that surely the Iranian authorities would know that he was a deserter and would detain him either when he entered or tried to depart. The Tribunal put to the applicant that it seemed that he need not have any fear of returning to Iran because he clearly was of no interest to the authorities. The applicant claimed that the passport office and the justice office were not connected and the passport office would not have known about his subpoenas.
The Tribunal put to the applicant that given that he was a deserter from national service, and would be required to complete his service if he returned, and he had an opportunity when he bought the new passport.
The Tribunal asked the applicant why he would spend $[amount] to get a passport in his own name?
The applicant claimed that there is no justice in Iran. Asked again why he wouldn’t get a passport in a false name given the amount of money he paid for it the applicant said it was too risky and the authorities would accuse him of being a spy or something if he returned under a false name. The applicant claimed that if they checked at the airport they wouldn’t find the records of the subpoenas. The Tribunal put to the applicant that he seemed to be suggesting that if someone in Iran was convicted of an offence and skipped bail he could leave the country without being apprehended at the airport because the systems weren’t connected. The applicant said that they were connected but not perfectly. The applicant’s adviser said that a 10% risk of him being discovered was sufficient to sustain a claim that he had a real chance of persecution should he return to Iran.
The applicant’s adviser clarified the applicant’s evidence of the procedures of entry and exit which the Tribunal has considered. The Tribunal asked the applicant how the subpoenas were served given that the documents before it were not signed nor did they indicate that anyone received the subpoenas or signed for them. The applicant’s explanation was vague and irrelevant.
The Tribunal put to the applicant that it was concerned about why he would pay such a vast sum of money for a passport in his own name and then travel to and depart Iran when he claimed that he was of such adverse interest to the authorities. The applicant said that his mother was sick and he took out a loan to see his mother.
Asked what documents he provided to the department to enable them to form a view that his national military service discharge card had him serve until [date] November 2009 he said he told them at the interview because he saw the card in the commander’s office before he left. The applicant claims to have served until [date] August 2009 however at the hearing he said that he deserted in October 2009.
The Tribunal asked the applicant to provide an account of his rescue of [Mr B]. He claims that he went to the container and took [Mr B] out to go to the toilet and they jumped the fence and got into his car. The applicant gave an account of how he came to find [Mr B] amidst the numerous containers of political prisoners at the garrison. Upon further questioning it appears that the “garrison” was not a secure facility and the applicant could park within metres of the container where [Mr B] was held. There was no fence. The Tribunal put to the applicant that the account appeared implausible, particularly given that [Mr B] was allegedly a political prisoner.

In the five months that he was in hiding the applicant made arrangements with people smugglers to depart Iran and travel to Australia. He claims it cost around USD$[amount].
The Tribunal asked the applicant what harm he suffered prior to his departure he claimed that he was a traitor because he deserted and also because he helped a political prisoner. The Tribunal asked again what harm he suffered and he said he did not suffer any harm except discrimination because he was a Kurd. The applicant claims that other soldiers knew he was a Kurd and they picked on him and accused him of attending protests and being a traitor because he was against the government. He also claims that the other soldiers criticised the way he dressed and did his hair.
The Tribunal asked the applicant if he could return to Kurdistan and he said that it was all the same and he could not relocate because it was run by the same government.
The Tribunal put to him that he claimed that whilst he was in Iran he wasn’t particularly religious and didn’t go to mosque. Ask what compelled his search for religion once he arrived in Australia and particularly Christianity, the applicant said that he first met Christians when he was detained [after] he arrived and took an interest in the pastoral nature of the religion. He continued to practice after he was released from detention and began to regularly attend church even after he received his permanent residence visa. His understanding and interpretation of Christianity seemed authentically arrived at after some deep personal reflection. He was baptised in early 2018. Asked why he waited so long he claims that he did not feel that he needed to have an official record for proof of his belief. He said that belief is in the heart and he had an epiphany.
Asked how his baptism into Christianity would affect him if he had to return to Iran he said that he would be hanged. He said that any Muslim could kill him. Asked how anyone would know that he was a Christian he said that the authorities check to see if you attend the Mosque. He said that if they noticed he wasn’t going to Mosque they would arrest him and kill him for apostasy. He said it was also possible that someone in Australia could have filmed him when he attended church.
The applicant told the Tribunal that his two brothers came to Australia. One brother arrived late in 2012 as an unlawful maritime arrival. Asked when he found out that his brother had arrived he said that his brother called him from [Country 1] and he tried to persuade him not to come. The second brother arrived in 2013 and he saw him and tried to persuade him not to come. Asked if he perhaps had obtained the money to secure passage for both his brothers he denied this vehemently. The Tribunal put to the applicant that it seemed unlikely, given how close he claimed to be with his brothers, that he had not discussed with them how they could also engage a smuggler to come to Australia. He denied this and claims that he told them not to try. Asked how they then found out how to come to Australia he said it was well known in Iran.
The Tribunal asked the applicant to explain the $[amount] deposited into his account on [date] October 2012. He said that it was received as a loan from [a] Bank. There were no loan documents and an entry in his bank account showed an entry listed as “[entry deleted]” but no source of those funds was listed. The Tribunal suggested that the information was insufficient to prove that it was a loan. The applicant said that he made repayments. The Tribunal put to the applicant that he had not provided any evidence of those repayments or of the payments totalling $[amount] to some other account. The Tribunal asked for evidence of those repayments and transactions. The adviser referred the Tribunal to page 12 of its submissions where it showed transfers between [several money exchange funds]. The Tribunal has no further concerns about these matters.
The applicant provided a document dated [September] 2017 from [a money exchange fund] showing transfers of money from the applicant to his father [on several dates in] October 2012 totalling $[amount]. He said that $[amount] was to pay for the passport and the rest was to pay for his mother’s hospital bills. Documents provided by the applicant show that his mother was hospitalised on [date] August 2017; [date] November 2017; [date] August 2017; [date] December 2017 and twice in August 2006. There were no medical records for 2012. The applicant said that he could not obtain them. He provided no plausible reason for being unable to do so.
The applicant made a closing statement to the Tribunal saying that he is a good man and a good son. He says that he has made a positive contribution in Australia and has many achievements; he wants to complete building his home and take care of his family. He said that he wants one more chance. He says he is not a criminal and hasn’t done anything wrong and just wants to contribute to Australia.
The Tribunal put to the applicant that it recognised he has made a significant contribution to Australian society and has worked hard, learnt the language and obtained an education. However, the Tribunal put to the applicant that it had significant difficulties accepting his account of how he obtained his various passports. The Tribunal said that it struggled to understand why he would obtain a passport in his own name and on balance the Tribunal said that it was forming a view that he left Iran on his own passport lawfully and obtained a replacement one lawfully. The Tribunal put to the applicant that this indicated that he does not have an adverse profile with the Iranian authorities because he was able to depart and re-enter without incidence. The Tribunal put to the applicant that his account of his desertion didn’t ring true. The Tribunal found it difficult to accept, even though it is a corrupt society, that he was able to falsify his military record.
The Tribunal put to the applicant that it was forming a view that the grounds for cancellation do exist and it would also turn its mind to forming a view that if the grounds exist, whether it would exercise its discretion to cancel. The applicant told the Tribunal that converting to a different religion was hard. He said that going to church every week to learn more and reconcile what was in his heart with what was in the bible was a long journey that started in 2012. He said that for the first time the practice of a religion was his own choice and not one forced upon him.
The Tribunal put to the parties that it would specifically turn its mind to whether the applicant could be returned to Iran given his conversion to Christianity and the weight of evidence in that regard which was before it.
CONCLUSION ON NON-COMPLIANCE
The applicant claims that he departed Iran on a false passport because he deserted from his military service and that he was able to apply for and receive a new passport in his own name because he paid $[amount] for an agent in Iran to conspire with Iranian officials in Australia and Iran to not only get a passport, but evade the authorities at the airport when he departed and re-entered. He claims that he only returned to Iran because his mother was seriously ill and even so, he only remained for several weeks. He has only made the single return journey.
The Tribunal is mindful that in a case such as the applicant’s it must give the most rigorous consideration to the serious consequences which flow from a decision that the applicant’s visa is liable to be cancelled on the basis that he gave incorrect answers in his application for a protection visa. The Tribunal also notes that the applicant was given every opportunity both in response to the s.107 notice and the Tribunal hearing to give a thorough and truthful account of his circumstances. He maintained the account he has given in the past to be true in every respect.
The Tribunal has considered the applicant’s accounts about these matters and finds them implausible and lacking in credibility. For example, the applicant’s reasons for purchasing a passport in his own name defy logic. He claims that he cannot return to Iran because of his adverse profile and there are subpoenas for his arrest. He claims that the justice and passport systems aren’t linked so they wouldn’t know necessarily, that there was a subpoena for him. His adviser claims they are linked sufficiently so as to generate a real chance that he would be apprehended at the airport if he returned. He claims that part of the payment he made went to airport officials and he had to depart at a particular time at a particular gate when a particular person was on duty. If the applicant had such an adverse profile it would defy logic to apply for and pay $[amount] for a passport in his own name and to then have to go to all the trouble of arranging for particular people to be at a particular place at a particular time to facilitate not only his re-entry but his departure. The Tribunal also noted and put to the applicant the fact that the subpoenas he provided to the Tribunal were unsigned
The Tribunal does not accept that the applicant departed Iran on a false passport in a false name, or that the passport that he has subsequently acquired was obtained through bribes. The Tribunal notes the applicant’s submission that bribery is rife in Iran and obtaining false documents is easy. That may or may not be true but in the present case the Tribunal finds the applicant’s account of obtaining his passport implausible in all respects. Hence the Tribunal is not satisfied that the applicant departed Iran illegally and therefore will not come to their adverse attention should he return.
The Tribunal is also not satisfied that the applicant had any adverse profile with the Iranian authorities either at the time of his departure in March 2010 or his subsequent return or departure. Had he been of adverse interest and in particular had not completed his military service, he would have been detained upon arrival in Iran (since he arrived on a passport in his own name) and been obliged to complete it. He was not so detained for that or for any other reason either at the time of his arrival or departure.
As the Tribunal has found that the applicant has a lawfully obtained genuine Iranian passport issued in his own name, the Tribunal also finds that the applicant either completed his national military service or was granted an exemption. An Iranian citizen cannot obtain a passport unless either of these events occurred. It follows that the Tribunal does not accept the applicant’s account that he deserted from his Military service, or that he and [Mr B] falsified his military training record or that he rescued [Mr B] from a container filled with political prisoners.
The applicant claimed that he travelled to Iran to see his sick mother; however, he provided no evidence of her hospitalisation, or illness through the provision of medical records, for example, despite being able to do so for her illnesses in 2006 and 2017.
The Tribunal sought information from the applicant about the harm he claims to have suffered prior to departing Iran as a result of his Kurdish ethnicity. The applicant’s evidence amounts to what could be identified as harassment, teasing and possibly bullying, but most certainly not significant harm envisaged by the Refugees Convention and Australia’s Migration Act. The Tribunal is not satisfied that the applicant was or would suffer significant harm as a result of his Kurdish ethnicity, if he was returned to Iran.
Nor does the Tribunal accept that the applicant was subpoenaed to attend court prior to his departure or that he had to go into hiding. A discussion of the subpoenas at the hearing did not persuade the Tribunal that the documents were genuine or that the applicant was of interest to the justice authorities in any way.
The applicant made earlier written submissions about his fear of returning to Iran because he would be persecuted as a failed asylum seeker. However he did not pursue this at hearing and in any case, the Tribunal notes that the Iranian authorities do not accept involuntary returns. If the applicant returned to Iran he would do so voluntarily and it is difficult to see, in these circumstances, how he could be perceived as being anti-regime.
Having regard to the findings of fact above, the Tribunal finds that the applicant gave incorrect answers to questions to the following questions in his application for a protection visa:
a.Form 866C, Q4 – In listing an alias of “[Mr A]” as the name used on the passport on which he left Iran
b.Form 866C Q30 – That he held a false passport which was subsequently taken by a smuggler,
c.Form 866C Q 42 – that he left Iran on [date] March 2010- after helping a political prisoner escape, falsifying his military record and eventually deserting military service on [date] August 2009,
d.Form 866C 43-46 – that as a Kurd, a failed asylum seeker and an army deserter he would be persecuted by the Iranian authorities and security agencies and possibly killed and he could not rely on the protection of the state because it was the agents of the state that would harm him.
e.Form 866C Q47-49 that he left Imam Khomeini International Airport illegally
The Tribunal is satisfied 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?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
The correct information
The correct information is that the applicant departed Tehran airport on his own passport, issued lawfully in his own name. That he did not desert from his military service after falsifying his military service record; that he did not assist a political prisoner to escape; that he is not of any adverse interest to the Iranian authorities for any reason, including being seen as deserter (he is not); a political activist in the green movement (he is not).
The content of the genuine document (if any)
The genuine document was that he had his own Iranian passport and he did not leave Iran on a false passport in the name of [Mr A]. In order to obtain a genuine passport, the applicant would have first been required to complete military service, or to complete it upon his return to Iran.
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 considers that the decision to grant the visa was based wholly on the incorrect information that the applicant left illegally from Iran on a false passport and false name and that he was of adverse interest to the authorities because he deserted his military service, helped a political prisoner escape and he would be persecuted because he was a Kurd.
The circumstances in which the non-compliance occurred
The applicant has denied at every opportunity that any non-compliance occurred. He emphatically maintains that his account of events prior to his departure for Iran, and his subsequent return and departure, are true in every respect. Despite the Tribunal putting to him its significant concerns about the credibility of his account, the applicant did not advance any mitigating circumstances to explain why he made claims which for the reasons given above the Tribunal has found are not true.
The present circumstances of the visa holder
The applicant has, by all accounts, been a model citizen. He has learned the English language so well that he was able to conduct the hearing without the assistance of an interpreter (although one was always available at his request). He has a full time, very well paid and responsible position. He has saved money and begun the process of building his own home. He has excellent character references from friends and employers.
The applicant has also claimed that he has converted to Christianity and that he will be persecuted if he returns to Iran on that basis. The Tribunal accepts that the applicant began his conversion in 2012 (after he received his permanent protection visa) and that he has consistently attended church and made inquiries through his relationship with the local Priests about Christianity. He told the Tribunal that his conversion took a long time and he was only recently baptised The Tribunal has considered whether the applicant’s conversion was solely for the purposes of sustaining a claim to remain in Australia but does not accept this proposition.
It seems to the Tribunal that the applicant had no need to bolster his protection claims after he received a protection visa. His account of the reasons for his interest, inquiry and subsequent conversion were persuasive and entirely credible.
The question of whether his removal to Iran would breach Australia’s non-refoulement obligations are dealt with in paragraphs 79-93
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
As noted in paragraph 68, the applicant has maintained that the claims which he made in support of his application for a protection visa are true rather than admitting that, as the Tribunal has found above, they are not true. I consider that, rather than admitting that he gave incorrect answers when he was given the opportunity by the Tribunal to do so, he continued to affirm that his account was truthful.
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal has no evidence of any other instances of non-compliance by the applicant.
The time that has elapsed since the non-compliance
The relevant non-compliance in the present case took place when the applicant applied for a protection visa on [date] August 2011. The Tribunal considers this a significant period of time in which the applicant has settled in Australia. He has learnt the language and obtained full time, well paid employment.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal that the applicant has breached any laws since the relevant non-compliance.
Any contribution made by the holder to the community.
The Tribunal accepts the applicant’s evidence that he has made a positive contribution not only to the community, but to his employer.
If there are children in Australia whose interests could be affected by the cancellation
The applicant has not declared any children, either in Australia or elsewhere.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements.
The Tribunal accepts that should the applicant’s visa be cancelled, the visa holder would be subject to Section 46(1) of the Act, barring him from making a valid application for a further visa. The Tribunal also notes that as an unlawful maritime arrival, if the applicant’s visa is cancelled and he becomes and unlawful non-citizen, he would also be subject to Section 46A(1) and barred from making a valid application for a further visa, including bridging visas, and may be detained. In addition, he would also be subject to Section 48A(1B) of the Act which bars frim from making a further application for a protection visa while in the migration zone. Further he would be prevented by the provisions of PIC4013 from being granted a further visa for a period of three years from the date of cancellation. The effect of these provisions is that the visa holder will not be able to make any valid visa application while in Australia, unless the Minister intervenes and lifts the decision bars.

Accordingly, the Tribunal considers the visa cancellation could (absent the Minister’s intervention) lead to the applicant being removed from Australia, and has proceeded to consider whether this would breach Australia’s international non-refoulement obligations.
The applicant claims that the applicant fears harm on return to Iran because of his conversion to and practice of Christianity and his non-observance of Islam. The applicant claims that he risks not only prosecution under Islamic cods but moreover branding as anti-regime.
The Tribunal put to the applicant country information suggesting that the applicant would not face harm that amounted to persecution if he were returned to Iran because of his conversion to Christianity. The Tribunal has made a very lengthy and careful consideration of the applicant’s response in the very detailed and relevant submissions made on his behalf by his representative.
The Tribunal has turned its mind to consider, as per Justice Ryan in Pei Lan He v Minister for Immigration and Multicultural Affairs [2001] FCA 446 at [31] “how the applicant would be likely to manifest his or her religious beliefs upon return and the likelihood of that manifestation attracting a persecutory reaction from the authorities”.
The applicant attends church in Australia and the Tribunal accepts that he has converted to Christianity. The Tribunal has noted the evidence from [Mr C] that the applicant “is no secret believer, but an active sharer of his Christian faith with others at [the church]”. However, the Tribunal, in considering motivational factors of behaviour notes that having converted in Australia, there is no possible reference point for showing how he would practice Christianity in Iran, whether he was influenced by fear of being discovered and charged with apostasy, or not. Recognising that what motivates the applicant to partake in Christian activities in Australia may differ were he to return to his country. Indeed, the applicant has said to the Tribunal on several occasions that his religious faith and belief is a matter for his heart and not relevant to other considerations.
The country information put to the applicant in writing was detailed and included the following:
DFAT considers it unlikely that individuals will be prosecuted on charges of apostasy and also considers it highly unlikely that the government would monitor religious observance by Iranians for example, whether or not a person regularly attends mosque or participates in religious occasions….
The applicant urges the Tribunal to consider that there are also political perspectives to consider in relation to the applicant’s conversion as Iran is a Theocracy. The Tribunal notes that a Christian convert can be impugned with an anti-regime political opinion. However, in the present case the applicant would have to come to the attention of the authorities such that those political aspects be considered in concert with his practice of Christianity.
Despite [Mr C’s] remarks noted above, the Tribunal does not accept that the applicant would return to Iran and announce himself publicly, privately and especially not to the authorities as having converted to Christianity.
The Tribunal accepts that alternative views to those expressed by DFAT and the Tribunal above are prevalent; views that have been presented by the applicant suggest a more threatening environment, however, on balance, the Tribunal is minded to accept DFAT’s view, particularly in the context of the applicant’s discussion with the Tribunal of his conversion.
For the reasons above, the Tribunal does not accept that the applicant’s practice of his faith would bring him to the adverse attention of the authorities. The applicant has not claimed that he would take up a leadership role in the church, attend an unrecognised church or proselytise. In this context the Tribunal does not consider that the applicant would face serious or significant harm, or indeed any harm should he continue to practice his form of Christianity should he return to Iran.
The Tribunal has considered the cumulative impact of the applicant’s profile in relation to refugee convention grounds, in particular, as someone who has developed a commitment to Christianity while in Australia, which in addition may lead to impugned political opinions, having embraced Western culture, being an army deserter a member of the Green movement, being a Faili Kurd and having sought but being denied asylum after departing Iran illegally.
Having found that the applicant did not depart Iran illegally, did not desert the army, if of no interest to the authorities for those or for any other reason, would not face significant harm on the basis of his Christianity the Tribunal is not satisfied that the applicant would face serious harm for those or for any reasons in the reasonably foreseeable future based upon Convention grounds were he to return to Iran.
I have also considered whether each of the integers of claims identified above would amount to the applicant being at real risk of significant harm and have found them not to be so.
For the reasons above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. As such the Tribunal does not accept that were the applicant’s visa cancelled, that his removal would be in breach of Australia’s non-refoulement obligations.
Additional considerations
The Tribunal is mindful that a decision to cancel the applicant’s visa may result in his indefinite detention. The Iranian government, for example, has refused to accept involuntary returnees and that as a result the applicant, if he were unwilling to return, would face indefinite detention.
The question before the Tribunal is whether affirming the delegate’s decision would lead to indefinite detention. In this case it does not. The applicant is an Iranian citizen and having found earlier that he does not face a real chance of serious harm or a real risk of significant harm whether the applicant faces indefinite detention in Australia is dependent upon a choice he makes rather than the outcome of this decision.
CONCLUSION
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
A B Baker
Senior 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.

[2018] AATA 1304

23 April 2018

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