1722411 (Refugee)

1722411 (Refugee) [2018] AATA 4314 (3 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1722411
COUNTRY OF REFERENCE:                  Iran
MEMBER:Alison Murphy
DATE:3 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 03 September 2018 at 10:19am

CATCHWORDS
REFUGEE – Protection visa – Iran – Cancellation – Federal Circuit Court remittal – Incorrect identity information – Faili Kurd – Evidence of Iranian citizenship – Holder of Iranian identity documents – Visited Iran – Converted to Christianity – Discretionary factors – Australian fiancé – Decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5J, 36, 97, 98, 99, 100, 101, 101, 107, 108, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
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 applicant arrived in Australia on [date] September 2010 and was granted a protection visa on 11 October 2011. The protection visa was granted on the basis that the applicant was a stateless Faili Kurd from Iran by the name of [Applicant’s Alias 1].
The Department subsequently became aware that a person who appeared to be the applicant’s [sister] had arrived in Australia in June 2013. [The applicant’s sister] claimed to be an Iranian citizen and provided her birth certificate and an Iranian identity card confirming her citizenship. The Department also became aware that the applicant departed Australia on 7 November 2013 and declared on his outgoing passenger card that he was an Iranian national and intended to spend most of his time abroad in Iran.
In a notice issued under s.107 of the Act dated 23 September 2015, a delegate of the Minister informed the applicant that he considered he had not complied with s.101(b) of the Act in that he had provided incorrect information in his application for refugee status assessment about his identity and nationality.
On 8 November 2016 a delegate of the Minister cancelled the applicant’s visa and on 24 November 2016 the applicant applied to this Tribunal for a review of the decision.
The matter was first determined by this Tribunal (differently constituted) on 5 April 2017. On 19 September 2017 the Federal Circuit Court of Australia ordered by consent that the Tribunal’s decision of 5 April 2017 be set aside and the matter remitted back to the Tribunal for reconsideration according to law. The order notes that the Minister conceded that the decision of the first Tribunal is affected by jurisdiction error of the type set out in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
The issues in the review are whether there was non-compliance in the way described in the notice sent to the applicant, and if so, whether the visa should be cancelled. A summary of the relevant law is set out in Attachment A.
The applicant appeared before the current Tribunal on 6 August 2018 to give evidence and present arguments. The Tribunal also heard evidence from the applicant’s fiancé, [Ms A] and [Reverend 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.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
THE SECTION 107 NOTICE
Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.
On the Departmental file is a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 23 September 2015 advising the applicant his visa may be cancelled under s.109 because it appeared he may not have complied with s.101(b) (visa applications to be correct) of the Act. The applicant was invited to respond to the NOICC in writing and provided a response through his representative dated 8 October 2015.
No issue has been raised in this review by the applicant as to the validity of this notice. Considering that document as a whole, the Tribunal is satisfied it sufficiently informed the applicant of the basis upon which the cancellation was being considered and gave him the required opportunity to respond.
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 in the following respects: that the applicant had incorrectly stated he was a stateless Faili Kurd by the name of [Applicant’s Alias 1] who had in the past experienced harm in Iran because of his statelessness and would face persecution if returned to Iran because he was a stateless Faili Kurd.
In his response to the s.107 notice dated 8 October 2015, the applicant maintained he was a stateless Faili Kurd and provided a Foreigners Identity Card as evidence he was not a citizen of Iran. However in a statutory declaration dated 21 February 2017 provided to the first Tribunal, the applicant acknowledged he was in fact a citizen of Iran, that he holds a Shenasnameh (birth certificate) and passport from Iran, and that the Foreigners’ Identity Card he had provided to the Department was a false document.
At the hearing before me, the applicant acknowledged he had provided incorrect information in his protection visa application as to his name, citizenship and his claimed experiences in Iran as a stateless Faili Kurd.
As the applicant agrees he provided incorrect information in his protection visa application, I find that there was non-compliance with s.101 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 Migration Regulations 1994 (the Regulations).
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
I consider the correct information is that the applicant is an Iranian citizen named [Applicant’s real name].
The content of the genuine document (if any)
This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 (relating to bogus documents).
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
As referred to in the delegate’s decision, a copy of which was provided to the Tribunal by the applicant, the decision to grant the applicant a protection visa was based on his claim that he was a stateless Faili Kurd named [Applicant’s Alias 1]. I accept that he is in fact a Faili Kurd and that his name had little bearing on the decision to grant him a protection visa. However I consider his claim to be a stateless Faili Kurd was central to the decision to grant him a protection visa and that decision was based wholly, or at least in large part, on the incorrect information.
The circumstances in which the non-compliance occurred
The incorrect information about the applicant’s identity and statelessness was provided by the applicant in his visa application in 2011. He continued to maintain he was stateless in his response to the s.107 notice dated 8 October 2015. He did not acknowledge he was a citizen of Iran and not stateless until 21 February 2017, in a statutory declaration provided to the first Tribunal.
The present circumstances of the visa holder
The applicant is currently engaged to his fiancé [Ms A] who is an Australian citizen. She attended the hearing and gave evidence consistent with that of the applicant as to the circumstances and progression of their relationship, including that they commenced their relationship in May 2017 and they intend to marry in December 2018. The applicant continues to attend [Church 1] in [suburb deleted], discussed in more detail below. The pastor of that church, [Reverend B] gave evidence that she had received a Notice of Intended Marriage from the applicant and [Ms A] and the marriage is arranged for [date] December 2018. I accept the applicant is in a genuine and ongoing relationship with [Ms A] and they intend to marry in December 2018.
The applicant continues to work [as] [an occupation 1]. A reference from his employer [dated] [January] 2017 indicates they consider him to be honest, reliable and responsible in his work. [Ms A] runs a [business] from their rented home. She gave evidence that should the applicant be returned to Iran, she would be unable to afford to maintain their rented premises which would impact on her ability to continue operating her business. I accept that the applicant’s removal from Australia will have a detrimental effect on [Ms A].
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant returned to Iran for a visit in 2013. As noted above, he continued to maintain to Australian Immigration authorities that he was stateless until February 2017.
The time that has elapsed since the non-compliance
The relevant non-compliance took place when the applicant made his visa application in 2011 and approximately seven years have elapsed since then.
Any breaches of the law since the non-compliance and the seriousness of those breaches
On the basis of the evidence before me the applicant has not breached the law since the relevant non-compliance.
Any contribution made by the visa holder to the community
As noted above, the applicant works as an [occupation 1] and a reference from his employer [dated] [January] 2017 indicates they consider him to be honest, reliable and responsible in his work. He has completed [qualifications relevant for his work]. Prior to commencing [work], he completed a [qualification] in [another area]. He has also undertaken various training courses in the course of his employment as an [occupation 1]. He is an active member of his church community, discussed further below.
Other factors to be considered
While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements
As part of the visa cancellation process, the applicant was subject to an International Treaties Obligations Assessment (ITOA) dated 26 May 2016. In respect of the applicant’s profile as an Iranian citizen Faili Kurd, the ITOA concluded that he would not be at risk of harm for this reason.
As set out above, I have found the applicant is an Iranian citizen. I have accepted the applicant is a Faili Kurd but as I discussed with the applicant at hearing, DFAT reports that Iran’s laws do not discriminate on the basis of ethnicity and DFAT is not aware of instances where Faili Kurds have been singled out for discrimination or where Faili Kurds who are also Iranian citizens have faced adverse attention specifically because of their ethnicity. DFAT acknowledges that members of ethnic minority groups face a moderate risk of official and societal discrimination, which may take the form of denial of access to employment or housing. However DFAT also reports that Faili Kurds who are Iranian citizens have the same access to services and employment as other Iranian citizens.[1]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report: Iran, 7 June 2018 at 3.6, 3.13 and 3.14
The applicant told me at hearing that most of the DFAT information was true, but that Arab and Kurdish communities in Iran lived in poverty and the government did not provide the same facilities to them as it did to the big cities, especially Tehran, with some Arab cities not having access to clean drinking water. He said that despite living in Iran for [many] years, he only had access to information about Iran since living in Australia and he had learned that Iran has no democracy and offered its citizens no opportunity to speak out. He said that Faili Kurds are facing real difficulties in Iran.
I accept that Faili Kurds and other ethnic minorities experience some level of societal discrimination in Iran, however not all discrimination rises to the level of serious or significant harm. I do not accept on the evidence before me that there is a real chance that the applicant will suffer persecution involving serious harm as required by s.5J(4)(b) of the Migration Act or that there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act, because he is a Faili Kurd, if he returns to Iran now or in the reasonably foreseeable future.
I have considered whether the applicant may face serious harm or significant harm if he returns to Iran for other reasons.
Fear of harm for reasons of his conversion to Christianity
In respect of the applicant’s profile as an Iranian citizen who had converted to Christianity in Australia, the ITOA concluded that he would not be at risk of harm for this reason because the author did not accept the applicant’s conversion to Christianity was genuine. I note the ITOA was conducted without the benefit of an interview with the applicant and based solely on his brief written response to the s.107 notice. There is significantly more information available to me about the applicant’s religious conversion and for the following reasons I have reached a different conclusion on this point.
Firstly, the ITOA was concerned that the applicant claimed in his written response to the s.107 notice to have become interested in Christianity while in Iran, but did not mention this in his initial claims for protection. However I am satisfied that the applicant was referring to a general interest in Christianity and other non-Islamic religions which he was exposed to through his studies of comparative religions while in Iran. The applicant does not claim to have experienced any harm in Iran because of his interest in Christianity.
The applicant arrived in Australia in September 2010 and started attending church while in [detention], which he acknowledges was mainly out of curiosity and a desire to attend excursions outside the detention centre. He felt welcomed by the Christian community, but did not consider himself to be Christian or raise any such claims during the assessment of his protection visa. He was released from detention in July 2011 and was granted the protection visa in October 2011. For some years he had no further contact with the Christian church, moving to [another city] and establishing himself in that city. In these circumstances I consider the applicant has a reasonable excuse for not raising these matters in his original protection claims.
Secondly, the timing of the applicant’s conversion causes me to accept it is genuine. The s.107 notice was sent to the applicant on 23 September 2015. By that time, the applicant had been attending [Church 1] for 18 months and had been baptised several months earlier. Other documents on the departmental file indicate the process of cancelling the applicant’s visa was commenced several months before the s.107 notice was issued, however that process still commenced after the applicant’s baptism.
I have considered the possibility that the applicant’s sister made known to the applicant that she had disclosed the family’s status as Iranian citizens to the Department sometime after her arrival in 2013, leading the applicant to suspect his visa may be cancelled and causing him to initiate contact with [Church 1] in early 2014. The applicant’s evidence is that this didn’t occur and his sister denied to the applicant and other family members that she had disclosed their status as Iranian citizens. I note the applicant continued to maintain his statelessness to the Department in his response to the s.107 notice on 8 October 2015 and I consider this is an indicator that he was not aware his sister had disclosed the family’s citizenship. There is no evidence before me that the applicant was aware of the Department’s intention to cancel his protection visa until the notice of intention to consider cancellation was sent to him on 23 September 2015. Therefore I accept he did not start attending church because he was aware his visa might be cancelled.
Thirdly, the applicant’s own evidence and that of his pastor, [Reverend B] indicates he has for some years now been embedded in the community of [Church 1]. The applicant began attending [Church 1] in about February 2014 while he was living in [Suburb 1]. As he became more familiar with the church and its congregation, he attended more regularly. He started going to evening classes and bible studies in preparation for baptism and was baptised on [date] April 2015. He has a religious [tattoo]. The applicant’s evidence is corroborated by the written and oral evidence of [Reverend B], who states he attended baptism preparation over a period of six months in 2014 and early 2015, including 12 weeks of classes on a Saturday evening and several months of bible studies following Sunday services. I consider that the lengthy period of preparation for baptism is an indicator of the applicant’s genuine commitment to that faith.
[Reverend B] gave oral evidence at hearing that the applicant is a valued member of their congregation, which is a non-proselytising multicultural congregation of about [number] people. Some four and a half years since joining the church, the applicant continues to be actively involved in the church and its activities, even though he no longer lives in the [Suburb 1] area. He participates in their services, social activities and working bees and provides [assistance] to members of the congregation. He also plays a formal role in Sunday services [details deleted].

In these circumstances I accept the applicant’s conversion to the Christian faith in Australia is genuine and was not engaged in for the purpose of avoiding the cancellation of his visa by strengthening his claims to be a refugee. I accept that he will continue to attend [Church 1] and participate actively in the church community. I accept that if returned to Iran, he would wish to continue to practise his Christian faith.
DFAT reports that Iran is a theocracy that, with the possible exception of the Holy See, mixes religion and state more completely than any other country in the world. Approximately 98% of Iranians are Muslim, the remainder consisting of religious minority communities, including various Christian denominations made up of recognised ethnic minority churches (about 300,000 people). While Christianity is one of three recognised minority faiths in Iran, Iran’s Penal Code strictly prohibits proselytisation by religious minority groups and it is a capital crime for non-Muslims to convert Muslims. None of the three recognised minority religions in Iran proselytise or accept converts as members who are under strict instructions not to minister to Iranians. The strict prohibition on ministering to Iranians is enforced by bans on conducting services in Farsi and identity checking worshippers to verify that non-Christians or converts do not participate in these services.[2]
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report: Iran, 7 June 2018 at pp19-24
DFAT reports that as a result of these prohibitions, Iranian Christians who are not members of the recognised ethnic minority churches generally practise in underground ‘house churches’. Secrecy surrounding these churches makes it impossible to assess the number of unrecognised Christians in Iran, but DFAT assesses that Iran has a significant and growing unrecognised Christian population, a high percentage of which are Farsi-speaking converts from Islam and their children. According to international observers, house churches exist across Iran and frequently change locations and members. While some have leaders trained in theology, others may be untrained with an increasing number being led by ‘internet pastors’, where a pastor who has fled Iran may continue to lead the church remotely by internet.[3]
[3] Ibid
DFAT reports the Iranian authorities have interpreted the growth in house churches as a threat to national security, characterising them as ‘illegal networks’ and ‘Zionist propaganda institutions’. Under the current Rouhani administration, security forces have increased the frequency of crackdowns on house churches, focusing particularly on the leaders of churches that actively broadcast, proselytise or seek out new members. Long sentences for house church activities have been handed down by the judiciary: in July 2017, the Revolutionary Court convicted eight Christians of ‘acting against national security through the establishment of a house church’ and ‘insulting Islamic sanctities’, sentencing the group to between 10 and 15 years’ imprisonment. As of December 2016, approximately 90 Christians were reportedly in detention or awaiting trial because of their religious beliefs and activities.[4]
[4] Ibid
Christian advocacy groups report the authorities have pressured some church leaders to migrate, either through direct threats or intentional harassment, including daily summons to security offices for questioning, confiscation of identity documents, or forcing them out of their jobs. Human rights observers report that Christians in detention are subjected to severe physical mistreatment, including beatings and solitary confinement.[5]
[5] Ibid
DFAT assesses that Iranians who convert to Christianity outside the country are unlikely to face adverse attention from the authorities upon return to Iran, provided they have not previously come to the attention of the authorities for political activities conducted in Iran and they maintain a low profile and do not engage in proselytisation or political activities within the country. Similarly it assesses that small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from the authorities beyond monitoring and low-level harassment. Rather it assesses that members of larger congregations that engage in proselytisation and have connections to broader house networks are more likely to face official repercussions, which may include arrest and prosecution and the leaders of such congregations are at particular risk.[6]
[6] Ibid
Other sources confirm DFAT’s advice about the restrictions on Christian converts in Iran. The United States Commission on International Religious Freedom reported in 2017 that there was an increase of anti-Christian sentiment in government-controlled and pro-government media outlets during the year and the government continued to regulate Christian religious practices closely to enforce the prohibition on proselytising and conversion.[7]
[7] United States Commission on International Religious Freedom, Annual Report 2017, 26 April 2017
In March 2017 the UN Special Rapporteur noted the targeting of Christian converts in Iran, whom she said continued to face arbitrary arrest, harassment and detention and are often accused of national security crimes such as ‘acting against the national security’ or ‘propaganda against the state’.[8]
[8] UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, 6 March 2017
The UK Home Office cites a number of international organisations as reporting that the most severe abuse is faced by Christians who have converted from a Muslim background, and those who engage in ministry among Persian-speaking people of a Muslim background and that security forces continue to target Christian converts of Muslim heritage, as well as members of the house church movement who gather to worship in private homes. It reports that activities which attract attention from the authorities include:
·Any kind of gathering;
·Sharing the gospel;
·Being in possession of more than one bible or a library of Christian literature;
·Holding discipleship classes;
·Studying theology;
·Contact with Christian organisations;
·Attending Christian conferences and seminars inside the country or abroad where teaching takes place;
·Hosting, or in some cases, even attending house churches.[9]
[9] UK Home Office, Country Policy and Information Note Iran: Christians and Christian Converts, March 2018
In this case the applicant is a member of [Church 1]’s congregation and not a church leader. [Church 1] is not a proselytising church. However I have found the applicant is embedded in that church community and not only attends services but participates in bible studies and social activities. I find that if the applicant was to return to Iran and openly practise his Christian faith in the manner he does here in Australia, there is a real chance he may come to the adverse attention of the Iranian authorities.
While it may be possible for the applicant to avoid harm upon return to Iran by joining a small house church that maintains a low profile and does not seek to recruit new members, this would in effect require him to alter or conceal his religious beliefs and cease to be involved in the full practise of his faith contrary to s.5J(3)(c)(i) of the Act. As such I am satisfied he is not precluded from having a well-founded fear of persecution by the operation of s.5J(3).
DFAT reports that under Iranian law a Muslim who leaves his or her faith and converts to another religion can be charged with apostasy which is punishable as a capital crime under sharia law. It states politically motivated apostasy charges were reportedly frequent in the years following the Iranian revolution. While apostasy cases are no longer an everyday occurrence in Iran, DFAT states the Iranian authorities continue to use religiously based charges such as ‘insulting Islam’ against individuals, including Muslim-born Christian converts.[10]
[10] Department of Foreign Affairs and Trade, DFAT Country Information Report: Iran, 7 June 2018 at p24
For these reasons I find there to be a real chance the applicant will face systematic and discriminatory conduct amounting to serious harm if returned to Iran for the essential and significant reason of his Christian faith. As the perpetrator of that harm is the Iranian state, I find that effective protection is not available to him and the real chance of persecution relates to all areas of Iran. It follows that I find the applicant meets the criteria set out in s.36(2)(a) of the Act and that his removal from Australia would be in breach of Australia’s non-refoulement obligations.
Other matters
I have also considered whether there are any mandatory consequences of the visa cancellation. I accept that as a consequence of the cancellation of his visa the applicant will be unable to make a further application for a protection visa and he will become an unlawful non-citizen and liable to be detained and removed from Australia. I consider however that as an Iranian citizen he will be able to return to Iran and I do not accept that indefinite detention is a likely consequence of the cancellation decision. In this case there will be no consequential cancellations under s.140 of the Act and for the reasons set out above, I have found the applicant’s removal from Australia would be in breach of Australia’s non-refoulement obligations under relevant international agreements.
I accept the submissions of his representative at hearing to the effect that if his visa is cancelled, he will be prevented by s.46A of the Act from applying for a spouse visa onshore. His representative submitted that if he is deported from Australia, there will be a period of 12 months during which he is not permitted to apply for another visa. I accept his representative’s advice that if the applicant applies for a spouse visa offshore, there is a current waiting time of about 24 months for those visas to be processed. I accept that during this period the applicant will be separated from his fiancé and this will cause them both some degree of hardship. I accept that in these circumstances the applicant’s fiancé may be unable to afford to live in their home and this may impact on her capacity to continue to run her [business].
EXERCISE OF DISCRETION
In exercising my discretion, I give significant weight to my finding that the applicant’s statement in his visa application that he was a stateless Faili Kurd was central to the decision to grant him a protection visa and that decision was based in large part on the incorrect information he provided. As I discussed with him at hearing, I consider that had the correct information been known he may not have been found to engage Australia’s protection obligations and I consider it is inappropriate that he should benefit as a result of this incorrect information.
However in this case, having given careful consideration to all the relevant circumstances, I consider that other matters to which I am required to have regard outweigh those matters which favour cancelling the applicant’s visa. In particular I give weight to the following matters.
The applicant’s present circumstances and contribution to the community: For the reasons set out in detail above, I have accepted the applicant has obtained relevant qualifications [since] arriving in Australia and has worked for some time as an [occupation 1]. He is considered by his employer to be honest, reliable and responsible in his work. Further he is engaged to his fiancé [Ms A] who is an Australian citizen and their marriage is scheduled for [date] December 2018. I have accepted that the applicant’s removal from Australia will have a detrimental effect on [Ms A] and I give those matters some weight.
Australia’s non-refoulement obligations: For the reasons set out in detail above, I have accepted that the applicant converted to the Christian faith approximately four and a half years ago and is embedded in his church community. I have found that if returned to Iran, there is a real chance the applicant will be subjected to systematic and discriminatory conduct amounting to serious harm from the Iranian authorities for the essential and significant reason of his Christian religion. Therefore I have found he meets the criteria set out in s.36(2)(a) of the Act and that his removal from Australia would be in breach of Australia’s non-refoulement obligations.
CONCLUSIONS
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Alison Murphy
Member

ATTACHMENT A – RELEVANT LAW
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
If the Tribunal finds that there was non-compliance in the way described in the section 107 notice the Tribunal must proceed to consider whether to exercise the discretion to cancel the visa under subsection 109(1). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the section 107 notice and it must have regard to the prescribed circumstances set out in regulation 2.41 of the Migration Regulations 1994. These are as follows:
·     the correct information;
·     the content of the genuine document (if any);
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
·     the circumstances in which the non-compliance occurred;
·     the present circumstances of the visa holder;
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
·     any other instances of non-compliance by the visa holder known to the Minister;
·     the time that has elapsed since the non-compliance;
·     any breaches of the law since the non-compliance and the seriousness of those breaches;
·     any contribution made by the holder to the community.
Whilst these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (‘PAM3: Act – Visa cancellation - General visa cancellation powers - (s109, s116, s128, s134B and s140)’). This policy requires that delegates should also consider matters such as whether there are persons in Australia whose visas would, or may, be automatically cancelled under section 140 of the Migration Act, whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation and whether there are mandatory legal consequences to a cancellation decision.
ATTACHMENT B – 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.

[2018] AATA 4314

3 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice