1722509 (Refugee)

[2019] AATA 5555

1722509 (Refugee) [2019] AATA 5555 (12 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722509

COUNTRY OF REFERENCE:                   Iran

MEMBER:Michael Hawkins

DATE:12 April 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 12 April 2019 at 3:45pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – political opinion – Etilaat – The Basij – incorrect answers – applicant voluntarily visited Iran after applying for protection visa without incident – no risk of harm – lack of evidence – inconsistent evidence – willingly deceived authorities – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 46, 48, 91, 97,100, 101, 107, 109, 116, 189, 198
Migration Regulations 1994 (Cth), r 2.41

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
MIAC v Khadgi (2010) 190 FCR 248
Saleem v MRT [2004] FCA 234
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tarasovski v MILGEA (1993) 45 FCR 570
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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).

2. The delegate cancelled the visa on the basis that she believed there had been non-compliance with s.101 of the Act, in that incorrect answers were given or provided in the applicant’s application form. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 18 March 2019 to give evidence and present arguments.  

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. 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?

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act in the following respects: A non-citizen must fill in or complete his or her application form in such a way that:

   a.all questions on it are answered; and

   b.no incorrect answers are given or provided.

10. The delegate concluded that the applicant has not complied with section 101(b) of the Act as he has provided incorrect answers to questions 43, 44, 45, 46 of the form 866C in his application for a visa.

11. Recourse to the s.107 Notice of Intention to Consider Cancellation (NOICC) at folio 97 on the Departmental file BCC2016/1803955 has particularised information deemed to be in breach of s.101(b) of the Migration Act.

12. The NOICC indicates [in] March 2011 the applicant arrived on Christmas Island as an unauthorised offshore maritime arrival claiming to be an Iranian citizen and seeking protection in Australia. He was accompanied by his [spouse].

13. The applicant attended an Entry Interview on 8 April 2011 in which he described incidents that led him to decide to leave Iran and travel to Australia. An Entry Interview was also undertaken with his spouse on the same day.

14. The applicant and his spouse attended an RSA (Refugee Status Assessment) interview with the Department on 30 May 2011 in which they both provided a statement of claims (Statutory Declaration). In that statement the applicant stated:

    ·He is a [age] Iranian citizen of Persian ethnicity born in Isfahan Iran. His spouse is with him in Australia and his parents and [siblings] remain in Iran.

    ·He left Iran because he feared that he would be killed by the Ettela’at and the Iranian government. His spouse was working for [a certain] department in [City 1]. Her job there as an [Occupation 1] gave her access to reports about [a certain issue].

    ·She was concerned about [a certain issue] and they both decided that something had to be done about it.

    ·In October 2010 the visa holder and his spouse worked together collating information about the [issue].

    ·He passed this information to [Senior Official 1] whom he had met during an election period when he was involved in anti-government protests.

    ·He continued this collation of information for five months during which time his spouse experienced difficulties at work for which she was being reprimanded. He believed that the information he was passing on was incriminating for the government and if they were found out their lives were in danger.

    ·[Senior Official 2] advised him that these reports put pressure on the government and he and his spouse hoped that it would make a difference.

    ·His spouse continued to receive reprimand notices from her employer and she advised [Senior Official 1] about these. He stated that [Senior Official 1] advised him to make plans to leave Iran and to get his affairs in order.

    ·In February 2011, during one weekend his spouse asked to go back to her work place as she had left her laptop there. When they arrived there she noticed it was missing and believed that a particular person who worked there could have taken it as he had a key to the office. She stated that on her laptop she had a copy of the Salman Rushdie book ‘The Satanic Verses,’ which was punishable by death in Iran, as well as information linking her to the [reporting] issues.

    ·He went back home, called [Senior Official 1] who told him to flee the country as soon as possible. They both went home, took their belongings, travelled to Isfahan to his family and from there travelled to Tehran and made arrangements to flee the country.

    ·Because of these actions he feared for their lives. He also stated that he was involved in anti-government demonstrations in 2009 and had signed a petition against the government after election results were released. His employers were aware of who had signed the petition and he was regularly discriminated against in the workplace because of this.

    ·He stated that he fears if he returns to Iran he will be killed by the Ettela’at and the government because he would be seen as anti-government and the authorities will not protect him because of his conduct there. He added that his conduct is considered opposing and antagonising and unacceptable by the Iranian government and is the reason they will not protect him.

15. The delegate was not satisfied that the applicant met the definition of a refugee and he was referred for an assessment to an Independent Protection Assessment delegate on 19 July 2011.

16. On 19 March 2012, an Independent Protection Assessment delegate found that the applicant is a person to whom Australia has obligations for protection and the Minister lifted the bar to allow him to lodge an application for a Protection visa. The IPA delegate found (in part) that:

    ‘The opinions and activities attributable to the claimants will lead directly to official conduct against them amounting to serious harm of a type constituting persecution, should they return to Iran. Such conduct will emanate from one or more of the bodies entrusted with security in Iran, such as the Basij or Etilaat. I find on the basis of available country information regarding the violent and arbitrary nature of such forces, that this serious harm by officials against the claimants will involve conduct including but not limited to physical or mental violence, prolonged imprisonment and/or death. The arbitrary nature of the Iranian Government's response to dissenting citizens is such that the persecution amounts to serious harm as defined in s91R(2) and involves systematic and discriminatory conduct.

    This will arise in the reasonably foreseeable future, with the essential and significant reason for this conduct being the claimants' dissenting political opinions, as outlined above. I accept that there is a real chance of this persecution occurring.

    In summary, and in light of both available country information and the totality of the claimants' presentation, I find that the claimants have a real chance of persecution in the reasonably foreseeable future by Iranian Governmental or para-governmental forces. I find on the combined evidence available, that the chance is not insubstantial, nor far-fetched. As the risk of persecution faced by the claimants comes from the state or its organs, state protection is therefore not available to them. Safe relocation within Iran is also not reasonably open to them'.

17. On 7 June 2012 the applicant lodged a Protection visa application. In support of the application the applicant provided the RSA statement he referred to in his Statutory Declaration. In his application Form 866C, Application for a Protection Class (XA) visa, the applicant provided the following information at questions:

    Question 41. I am seeking protection in Australia so that I do not have to go back to? The applicant answered; 'Iran'.

    Question 42. Why did you leave that country? The applicant answered; 'refer to my statement.' The applicant referred to the contents of the statement (Statutory Declaration) he provided with his RSA.

    In his statement the applicant declared that he would be killed by the Ettela'at and the government and described the reasons above which led to his departure from Iran.

    Question 43. What do you fear may happen to you if you go back to that country? The applicant answered; 'refer to my statement'. The applicant referred to the contents of the statement (Statutory Declaration) he provided with his RSA.

    In his statement the applicant claimed that he would be killed by the Ettela'at and the government.

    Question 44. Who do you think may harm/mistreat you if you go back? The applicant answered; 'refer to my statement'. The applicant referred to the contents of the statement (Statutory Declaration) he provided with his RSA.

    In his statement the applicant stated that he would be harmed or mistreated by the Ettela'at and the Iranian government.

    Question 45. Why do you think this will happen if you go back? The applicant answered; 'refer to my statement'. The applicant referred to the contents of the statement (Statutory Declaration) he provided with his RSA.

    In his statement the applicant claimed that he will be killed because he would be seen as anti-government.

    Question 46. Do you think the authorities of that country can and will protect you if you go back? If not, why not? The applicant answered; 'refer to my statement'. The applicant referred to the contents of the statement (Statutory Declaration) he provided with his RSA.

    In his statement the applicant stated that the authorities want to kill him and will not protect him because he exposed them. He added that the government does not permit the behaviour that he has demonstrated as it is viewed as anti-(Iran) government.

18. The NOICC notes that on 14 June 2012 on the basis of this information as well as meeting all other relevant criteria the applicant and his wife were granted subclass XA-866 Protection visas.

19. The NOICC notes that Departmental records indicate that since the grant of his Protection visa, the applicant has travelled outside Australia on the following occasions. Departmental records indicate the applicant’s movements as follows:

    ·[March] 2015 departure from Australia

    ·[April] 2015 arrival in Australia

    ·[March] 2016 departure from Australia

    ·[April] 2016 arrival in Australia

20. The NOICC notes that on 3 April 2016 the applicant was interviewed by an Australian Border Force (ABF) entry officer at [City 2] International Airport upon his return with his wife [to] Australia from [Country 1]. In her possession, namely on her mobile phone, was evidence of purchased airline tickets to Iran for both her and her husband for travel on '[Named Airline]' [in] March 2015. There was also a note in his baggage dated [March] 2015 stating “Where is [Named Airline] counter?”

21. The NOICC notes that information also found on the mobile phone were messages in relation to enquiries regarding travel fares to Iran from a [website] [in] February 2015 which highly suggests that this was for seeking comparable fares to travel to Tehran from [City 2], [City 3] and [City 4].

22. The NOICC notes that at the same time the applicant's mobile phone was found to be located in Iran [in] May 2015 in the vicinity of [City 1] and [in] July 2015 in the vicinity of Isfahan. The applicant stated that he did not know why his mobile phone was located at these places as he was back in Australia while his wife was outside Australia at this time.

23. The NOICC notes that when asked about the information located on the mobile phone of his wife the applicant stated that he did not know why her phone contained copies of tickets for travel to Iran for both of them or information regarding travel fares to Iran.

24. The NOICC notes that the applicant’s wife stated that she had travelled outside Australia twice since the grant of her Protection visa and visited her sick father in [Country 2] who has now passed away however she later admitted to the ABF officer that she had returned to Iran. It would appear that as the applicant remained in Iran after her husband's departure [in] April 2015 that she may have had his mobile phone in her possession.

25. The NOICC notes that in addition to the flight tickets to Iran, the ABF officer also found information about the applicant’s flight to [Country 3] [in] March 2015 and return to Australia [in] April 2015. Date stamps on pages of the applicant’s Australian Titre de Voyage [number] indicate the applicant entered [Country 3] [in] March 2015 and exited the same day indicating that he had further travel from this location and according to the  [Travel] itinerary sighted on the mobile phone, it was to Iran.

26. The NOICC notes that in his answer to question 43 of the form 866C the visa holder stated that he feared that he would be killed by the Ettela’at if he returned to Iran as he holds an adverse political profile. This is incorrect because the visa holder has returned to Iran since the grant of his Protection visa between [March] 2015 and [April] 2015. His spouse travelled to Iran on two occasions, initially [in] November 2012 five months after the grant of her Protection visa and [in] July 2013 both trips for a significant period of time.

27. The NOICC notes that country information advises that Iran is a regulated country where the movements and actions of its citizens are heavily scrutinised and its monitoring system of persons entering and exiting the country is sophisticated. If the applicant held the adverse political profile as he stipulated in his Protection visa application and he was of interest due to his political profile by a government agency he would have most likely been apprehended by government authorities prior to departing or on arrival in Iran.

28. The NOICC notes that it appears that the applicant has engaged with the Iranian authorities on multiple occasions under his Iranian identity. It is noted that the applicant's previous Iranian passport [number] expired [in] 2011. It is generally expected that passports are renewed six months before expiry and therefore he would have engaged with the Iranian authorities in Canberra for the issue of new travel documents. This process would have required him to provide his details to the Iranian government thus alerting them to his circumstances and whereabouts and about his intended travel to Iran. In addition, because there were no visas or entry or exit stamps in his Australian Titre de Voyage travel document this suggests that he had another travel document to enter Iran, namely his Iranian passport.

29. Upon his entry to and exit from Iran the visa holder engaged with the Iranian authorities and returned to Australia unharmed which indicates that at the time of his Protection visa application the visa holder did not come to the attention of the Iranian authorities and he did not hold the claimed adverse political profile at the time of visa application and therefore would not face harm or mistreatment upon his voluntary return to Iran or be killed by the Ettela’at or the Iranian government.

30. The NOICC notes that in answer to question 44 of the Form 866C the visa holder stated that he would be harmed or mistreated by the Ettela’at and the Iranian government if he returned to Iran. This is incorrect because he has voluntarily returned to Iran since the grant of his Protection visa between [March] 2015 and [April] 2015.

31. The NOICC notes that had the applicant held the adverse political profile that he claimed in his Protection visa application and he was of interest to the Iranian authorities or due to his wife’s profile by an Iranian government agency, he would have most likely been apprehended by Iranian authorities upon his arrival or departure from Iran.

32. The NOICC notes that upon his entry to and exit from Iran the applicant engaged with the Iranian authorities and returned to Australia without incident. This indicates that at the time of his Protection visa application the applicant had not come to the attention of the Iranian authorities and he therefore did not hold the adverse political profile or had a fear of returning to Iran.

33. In answer to question 45 of the Form 866C the visa holder stated that he would be killed because he would be seen as anti-government as he held an adverse political profile. This is incorrect because the visa holder has voluntarily returned to Iran since the grant of his Protection visa between [March] 2015 and [April] 2015. As described above the visa holder has voluntarily entered and departed Iran following the grant of his Protection visa.

34. The NOICC notes that had the applicant held the adverse political profile that he claimed in his Protection visa application and he was of interest to the Iranian authorities or due to his wife’s profile by an Iranian government agency, he would have most likely been apprehended by Iranian authorities upon his arrival or departure from Iran.

35. Upon his entry to and exit from Iran the visa holder engaged with the Iranian authorities, he freely moved around in that country and returned to Australia without incident. This indicates that at the time of his Protection visa application the visa holder was not seen as anti-government and he was not at risk of being killed by the Iranian authorities and therefore he did not hold the adverse profile that he claimed in his application.

1. The NOICC notes that in answer to question 46 of the Form 866C the visa holder stated that if he were to return to Iran the authorities cannot and will not protect him if he goes back there and that they want to kill him because he and his spouse had exposed them and he was seen as anti-(Iranian) government. This is incorrect because the visa holder has voluntarily returned to Iran since the grant of his Protection visa between [March] 2015 and [April] 2015. As described above, had the visa holder or his spouse held the adverse profile that he claimed in his Protection visa application and they were both of interest to the Iranian authorities he most likely would have been apprehended by government authorities upon his arrival or departure from Iran.

2. Upon his entry to and exit from Iran the visa holder engaged with the Iranian authorities, he freely moved around in that country and returned to Australia without incident. This indicates that at the time of his protection visa application the visa holder was not seen as anti-government and he was not at risk of being killed by the Iranian authorities and therefore he did not hold the anti-Iranian political profile that he claimed in his application.

3. The NOICC notes that the delegate considered that the applicant has not complied with s.101(b) of the Act as he has provided incorrect answers to questions 43, 44, 45, 46 of the form 866C in his application for a visa. If the applicant has failed to fill in their application form in such a way that no incorrect answers are given or provided their visa may be cancelled.

4. The NOICC notes that by failing to comply with s.101 (b) of the Migration Act 1958 the applicant's subclass 866 Protection visa is liable for cancellation.

   Response to NOICC

5. The applicant responded to the NOICC through his representative in a submission received by the Department of Immigration in an email dated 11 July 2017.

6. In his response the applicant provided a submission and supporting documentation including the following:

   ·Statutory Declaration completed and signed by the visa holder on 10 July 2017.

   ·Evidence of two money transfers to the visa holder’s sister in-law in Abadan Iran dated [March] 2015 and [March] 2015 stating that it was for the purposes of a gift.

   ·Translation of identification card of the late father of the visa holder’s spouse listing his date of death as [October] 2013 at Abadan, Iran.

   ·Scanned copies of mortgage documentation in relation to the purchase of a new home by the visa holder and his spouse.

   ·Payslip dated [May] 2015 and recent PAYG payment summary of visa holder’s current employment with [Employer 1].

   ·Photographs of the visa holder and his spouse in Australia

7. The submission notes that:

   The applicant stated that the claim in the Notice that he and his spouse had travelled to Iran on ‘[Named Airline]’ [in] March 2015 is incorrect. The visa holder stated here that the reasons that this information was on his spouse’s phone was because she had searched websites for airline tickets to Iran since her father was seriously ill and now deceased, and that at the time, the couple were going to take a risk and return to Iran as they were not sure whether they would see his father in-law again. However, although they initially decided to take the risk to visit his father in-law, he has never returned to Iran following the grant of his Protection visa.

   The visa holder further stated that a friend of his offered him and his spouse, through his contacts, false Iranian passports in different names for a significant amount of money and referred to the evidence of money transfers which his spouse sent to her sister [listed] above. He stated that he and his spouse used false passports which they obtained in [Country 3] and which they were going to use to travel to Iran, however they travelled to [Country 4] instead and his spouse kept copies of the tickets for Iran travel in order to obtain a refund.

   The visa holder stated that when he and his wife returned to Australia from [Country 1] [in] April 2016 and were interviewed by an ABF officer at [City 2] International Airport his spouse denied that she had returned to Iran and claimed that she was put under pressure to declare something to that effect.

   The visa holder further stated that in relation to the ABF officer locating his phone in Iran [in] May 2015 he stated that this was not possible because he was in Australia [in] May 2015. He added that quite possibly the ABF officer assumed that having photos and airline tickets on the phone resulted in their conclusion that his spouse had travelled to Iran.

   He stated that the ABF officers observed photos on his mobile in his photo album folder which contained [a location] sent to him by a long time friend.

   In his response the visa holder further stated that his spouse had bought him a new mobile phone [in] November 2015 and referred to the photo of the couple he provided at dinner where she presented it to him.

   The visa holder maintains that he provided correct information in his Protection visa application and was correctly recognised as a person to whom Australia owes protection obligations and that nothing has happened since to warrant the cancellation of his visa.

   In his Statutory Declaration the visa holder described the reasons why they (he and his spouse) had bought tickets to Iran. He stated that they feared for his mother-in-law’s health since she had suffered a [medical incident] and was suffering from depression following the death of her husband and they were also worried about the impact of these events on his sister-in-law in Iran.

   He stated that at the time he was in contact with a friend who suggested that he knows a person who can obtain false passports for them both at a cost of [amount] IRR (Iranian Rial) (converted is approximately AUD [amount]). He added that he decided to obtain and pay for false passports rather than to put their lives in danger (by travelling to Iran) and transferred the money to his sister in-law who paid his friend cash for the transaction. He further added that the contact for the false passports instructed that the payment for these be undertaken in two instalments, the second one due the day before travel. He stated that when he arrived in [Country 3] he met with a person outside the airport who handed him the passports which also contained pre-booked flights to [Country 4] and they flew to [one city in Country 4], then [another city], because it was safer there due to recent events in [the first city].

   He re-iterated that he and his spouse had initially decided to return to Iran because of the pressure on his mother in-law including the impact on the family, however by using false passports they decided to travel to [Country 4] where it was ‘easier to stay’ and his mother in-law joined them in [Country 4] when her health stabilised. He added that on their return to [Country 3] he and his spouse destroyed the false passports in the ‘toilet bin’ and kept the original e-ticket to Iran in order to obtain a refund and therefore the reason why it was found on her phone. He stated that he had communicated with the travel agent later to obtain a refund however there was no success.

   The visa holder declared that he has never returned to Iran and it is impossible that his phone was located there on the dates specified by the ABF officer as he was in Australia at the time. He confirmed this with his employment pay slip from [Employer 1] for this date and stated that his spouse had bought his phone in November 2015 which was after his travel dates and therefore it is impossible that he was ever there.

   He further stated that he and his spouse were repeatedly questioned by ABF officers at [City 2] International Airport who implied false assumptions and pressured them to admit to something in relation to travel to Iran when his spouse lost control, however he was adamant that neither of them mentioned that they had travelled there.

   The visa holder concluded that he and his spouse had travelled to [Country 3] and obtained false passports there for travel to [Country 4] in order to support his mother-in-law, the reason being that there still exists a risk of their returning to Iran as there have been executions in Iran by the Ettela’at against persons convicted of anti-government activities in the last few years and they did not feel safe returning there. He added that there was no reason to contact the Iranian authorities (possibly for the issue of a new Iranian passport) because they had found an alternate solution to visit his mother-in-law.

   Departmental Decision to cancel the applicant’s visa under s.109 of the Act

8. The Departmental delegate proceeded to cancel the applicant's subclass 866 visa in a decision made on 30 August 2017.

9. Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the applicant in so far that the applicant failed to give correct information in his 866 visa application.

10. The delegate noted that in his response to the NOICC, the applicant provided conflicting information.

    In his submission, the visa holder’s representative stated that the reason for the evidence of airline tickets to Iran on the mobile phone belonging to the visa holder’s spouse is because they had initially decided to travel to Iran to provide support to her family given that his father in-law had become seriously ill. However though, he claims that he never entered Iran. The information provided by the visa holder’s representative has incorporated historical details from 2013 and 2015 in that the search for airline tickets for travel together in 2015 are not related to the events of 2013 when the visa holder’s father in-law was ill.

    As stated in the Notice, the visa holder travelled offshore on two occasions since the grant of his Protection visa. In his outgoing passenger card [in] March 2015 the visa holder declared that he was travelling to [Country 3] and boarded a [flight]. In his subsequent trip [in] March 2016 the visa holder and his spouse travelled to [Country 1] for a holiday.

    When interviewed by the ABF officer at [City 2] International Airport [in] April 2016 the visa holder was questioned about his previous travel overseas [in] March 2015. The visa holder’s outgoing passenger card on this date indicates that he was travelling on [an evening] flight ([number]) to [Country 3], which is approximately [several] hour flight, and according to the e-ticket in his name located on his spouse’s mobile phone onwards to Iran with [Named Airline] at [time] [in] March 2015. The visa holder disputed the fact that he ever travelled to Iran and stated that he had obtained false passports for him and his spouse while at [Country 3] International Airport and they travelled to [Country 4] using these documents.

    I find it implausible that the visa holder would travel on false passports to [Country 4], since he was the holder of an Australian Titre de Voyage and was able to travel anywhere without a concern of being stopped at airports, particularly [Country 4], given the heightened security measures there in relation to recent events in that country. I am of the view that based on the e-ticket issued [in] February 2015 located on his spouse’s mobile phone, the visa holder voluntarily travelled to Iran with his spouse on his genuinely issued Iranian passport during which time he may have travelled to [Country 4] for a short holiday and returned to Australia [in] April 2015 whilst his spouse remained in Iran. Had the visa holder genuinely travelled to [Country 4] from [Country 3] he would have been able to use his Titre de Voyage and obtain entry and exit stamps to that country which he could provide as evidence in his response to the Notice. By claiming that he used a false passport for travel to and from [Country 4] the visa holder has provided himself with an explanation why there are no [Country 4] entry or exit stamps in his Australian Titre de Voyage. However, I am satisfied that in this case, the visa holder travelled to [Country 4] with his genuine Iranian passport.

    Given the above findings it is apparent that, although he has concealed any evidence of an Iranian passport used for travel, the visa holder has returned to Iran between [March] 2015 and [April] 2015.

    I also find that the visa holder’s spouse travelled to and remained in Iran for an extensive period of time on two occasions between [November] 2012 and [July] 2013 and again between [March] 2015 and [July] 2015. The visa holder’s claims for protection were based predominantly on his spouse’s claims. The fact that the visa holder’s spouse returned to that country and remained there for a significant period of time without being harmed or killed and returned to Australia without incident, indicates that she had did not hold the adverse political profile as she claimed in her application for a Protection visa. Therefore, since his spouse did not hold the adverse profile she claimed in her application, neither did the visa holder as claimed in his application for a Protection visa.

    Therefore, the fact that the visa holder has voluntarily travelled to Iran and returned to Australia without incident contradicts his claims that he would be killed or harmed by the Ettela’at or the Iranian government if he returned to that country

    Review Hearing

11. The Tribunal conducted a hearing on 18 March 2019. Whilst the applicant was represented, he attended the hearing without his representative and [solicitor].

12. At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department of Immigration to cancel his Protection visa under s.109 of the Migration Act. The Tribunal noted that a delegate of the Department of Immigration had formed a view that the applicant had provided incorrect information in his application for protection. As a result of this the applicant was served with a Notice of Intention to Consider Cancellation of his visa and given an opportunity to comment on those grounds.

13. The Tribunal noted that the delegate of the Department of Immigration had formed a view that the applicant had not complied with the requirements of paragraph 101(b) of the Migration Act, referring amongst other things to the answers the applicant had provided in his application for a Protection visa regarding his Protection visa claims. The Tribunal noted that based on all of the evidence before her, the delegate proceeded to find that the applicant had provided incorrect information in his Protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.

14. The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in his Protection visa application, the material on the Departmental cancellation file, material provided at review and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the s.107 Notice of Intention to Consider Cancellation, and, if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant's benefit.

15. The Tribunal noted that the applicant was granted a subclass 866 (Protection) visa on 14 June 2012. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision and suggested to the applicant that the Tribunal might take the applicant's claims for protection provided to the Department of Immigration on 12 June 2012 as having been read. The applicant agreed.

16. The Tribunal noted the receipt by it of a submission from the applicant dated 1 November 2018.

17. The Tribunal confirmed with the applicant that he left Iran in March 2011. The applicant stated that he arrived in Australia [in] March 2011.

18. The Tribunal asked the applicant about the status of his Iranian passport. The applicant replied that he had no current passport from Iran and that the passport that he arrived in Australia on had now expired. He thought it expired about eight years ago. He claims that that passport was not renewed.

19. The Tribunal enquired about the applicant’s wife’s visit to [Country 2] in 2012. The applicant stated that he did not accompany his wife to [Country 2] on that occasion.

20. The Tribunal asked the applicant where he was presently working. The applicant replied that he works for [Employer 2] [as an Occupation 1].

21. The Tribunal asked the applicant about his visit to [Country 3] in 2015. The applicant confirmed that he and his wife visited [Country 3], leaving Australia [in] March 2015. He stated that he was away for only four or five weeks as that was all the leave that he was able to take from work.

22. The Tribunal noted that the applicant departed Australia and returned to Australia without incident.

23. The Tribunal noted that the applicant had visited [Country 1] in 2016. The applicant confirmed that he and his wife departed Australia [in] March 2016, returning to Australia [in] April 2016. The Tribunal confirmed that the applicant was accompanied by his wife, his sister-in-law and his sister-in-law’s child.

24. The Tribunal noted that the applicant’s problems appeared to begin [in] April 2016 when he returned to Australia. It noted that Border Force officers took an interest in the applicant and his travelling companions. The Tribunal asked the applicant why he thought that Border Force had taken an interest in his group. The applicant replied that he believed it was because of his Australian travel documents (an Australian Titre de Voyage).

25. The Tribunal asked the applicant what took place at the airport on that day. The applicant replied that the family proceeded through Passport Control, collected their luggage and then joined the queue for the final immigration check. They were directed into a side channel to have their luggage checked. The applicant stated that the Immigration staff went through the bags of the whole group, but found nothing.

26. The Tribunal asked the applicant about the interview. He advised that it was an informal interview over the baggage table, it was not in a secured room. The applicant advised that the Immigration people took his mobile telephone.

27. The applicant explained that the Border Force officers found a photo on his phone of a [location] in Abadan. The applicant explained that he lived near Abadan and that the photo was from a friend of his sent in the context of showing him what the [location] now looked like. The applicant stated that the Border Force officers said to him that the photo was taken in Iraq. The applicant believes that it is on the basis of seeing that photo that the Border Force officers formed the view that he had been in Iraq or Iran.

28. The Tribunal pointed out to the applicant that that did not appear to be the evidence or allegation of the ABF officers. Border Force were more concerned by a finding on the phone, using a geotracking device, that showed the applicant’s phone had been in Iran on two occasions. The Tribunal stated that it accepted the applicant’s views in relation to the photo of the [location], noting that people could send photos to a mobile phone and the owner of that phone might then save that photo into his own collection.

29. The Tribunal was concerned about the [Google] Map in the Department file indicating that the applicant’s phone had been geo-tracked to two locations within Iran on two separate occasions, being [May] 2015 in the vicinity of [City 1] and [in] July 2015 in the vicinity of Isfahan.

30. The Tribunal noted that the dates that the phone was identified as being in Iran were after the applicant had returned to Australia. The applicant agreed. The Tribunal noted that the applicant’s wife was still overseas on those dates. The applicant agreed.

1. The Tribunal asked the applicant to confirm that he had given his phone to his wife when he left and returned to Australia. The applicant confirmed that he gave his phone to his wife.

2. The Tribunal asked the applicant, [details deleted], how his phone could have been geo-tracked to two places within Iran on those two dates.

3. The applicant replied that he believed there was something wrong with his phone.

4. The Tribunal turned to the matter of what the ABF officers had found on his wife’s phone, including quotes for flights to Iran from [City 2], [City 3] and [City 4]. These quotes were obtained [in] February 2015. The Tribunal asked the applicant why his wife had obtained such quotes. The applicant replied that his wife was worried about her mother and had decided to take the risk and visit her. He explained the great stress that his wife was under following the death of her father.

5. The Tribunal confirmed with the applicant that he and his wife were considering a trip to Iran from Australia. The applicant confirmed that was the case. The Tribunal asked the applicant what passport it was that they proposed to use for the trip from Australia.

6. The applicant replied that they intended to use a fake passport.

7. The Tribunal queried the use of the fake passport as it understood that the fake passport was to be used in conjunction with the travel to and from [Country 3]. The applicant confirmed that was the case.

8. The Tribunal asked the question again as to what travel documents were intended to be used for the [flights] from [City 2], [City 3] or [City 4].

9. The applicant replied that they intended to use fake passports no matter how they went to Iran.

10. The Tribunal asked the applicant about the acquisition of the fake passports. The applicant replied that they had sent money to his wife’s other sister (the sister living in Iran) and she paid for the passports.

11. The Tribunal sought confirmation that the sister had made both payments for the passport in Iran. He confirmed that was the case. He confirmed that two payments had been made, one [in] March 2015 and the second [in] March 2015.

12. The Tribunal turned to the matter of the airline tickets purchased for flights to Iran from [Country 3] [in] March 2015 at [time] on flight [number]. It noted that these flights corresponded with the outgoing flight from Australia, which arrived in [Country 3] a few hours earlier.

13. The Tribunal noted that the date of issue of the tickets for that flight on [Named Airline] was [February] 2015, some three weeks before the applicant’s wife had made inquiry about direct flights from Australia.

14. The Tribunal discussed with the applicant Country Information from the DFAT Report, specifically paragraph 5.32 which dealt with the very tight security procedures at Iranian airports. The Country Information suggested that it was almost impossible to depart Iran on a fake passport.

15. The Tribunal queried the applicant as to why he was prepared to take the risk of travelling to and from Iran on a fake [passport]. The applicant confirmed that they were prepared to take that risk.

16. The applicant said, however, that they actually changed their minds and decided to go to [Country 4]. The Tribunal asked the applicant when they had changed their minds to do that. He replied that it was some time in February. The Tribunal noted that there was no evidence of any travel to [Country 4] in the form of airline tickets or boarding passes. The Tribunal asked the applicant how he had paid for the tickets to [Country 4]. He replied that he paid in cash at [Country 3] airport.

17. The Tribunal asked the applicant what airline they had travelled on. The applicant couldn’t remember. The Tribunal asked the applicant how he had purchased the tickets. The applicant replied that after arriving in [Country 3], he dashed around to the counter and purchased the tickets at the counter. The Tribunal noted that this was inconsistent with what he had told the delegate – that when he collected the fake passports there were two pre-booked tickets to [Country 4] with the passports.

18. The Tribunal noted that the ABF officers had discovered a post-it note in the applicant’s wallet at the time of their arrival in Australia [in] April 2016. The post-it note included the time of departure and arrival of the [flight] from [City 2] to [Country 3]. It then had a note about where to find the [Named Airline] counter. Asked to explain what the note meant, the applicant replied that he had made that note in order to attempt to get a refund on the [Named Airline] flights.

19. The Tribunal noted a further note that said, “Where to reclaim luggage”. Asked to explain that, the applicant thought about it for some time and then replied that it was a note to himself that he must enquire about where the luggage was from the [City 2] to [Country 3] flight.

20. The Tribunal noted that the applicant claims that he went to [Country 4] and stayed at [a particular city]. The Tribunal asked the applicant where he stayed in [Country 4]. The applicant replied that they stayed with a family friend and that they had submitted a letter from that friend confirming that visit.

21. The Tribunal noted that the purpose of the trip to [Country 4] was to see the applicant’s wife’s mother. The Tribunal noted that the applicant’s wife was away from Australia for a period of four and a half months, but only saw her mother for one week.

22. The Tribunal asked the applicant whether he got the opportunity to see his mother-in-law. He replied that he did not. The Tribunal asked the applicant whether he thought it strange that his wife would travel all that way and stay away that period of time and only see her mother for one week. He explained that his wife also had other things to do, including visiting a [clinic]. The Tribunal asked the applicant about the visit to the [clinic]. He said that his wife had one treatment whilst she was in [Country 4] and stated that they had previously tried in Iran through [a different] program. The Tribunal asked the applicant how they had paid for the [program] in [Country 4]. The applicant replied that all the fees were paid in cash.

23. The applicant again confirmed that he had come home after one month.

24. The Tribunal discussed with the applicant the applicant’s claims in his statement that there was a risk to Iranians of being killed even in [Country 4]. The applicant confirmed that there was a risk for Iranians generally in [Country 4]. The Tribunal asked the applicant why, given that he was going to the trouble of acquiring a fake passport, why he did not acquire one from a country other than Iran, considering the risk that there was for Iranians in [Country 4]. He replied that he could only get an Iranian passport.

25. The Tribunal asked the applicant, given that he went to [Country 4] and not Iran as claimed, why he simply did not use his Australian travel documents as they would tend to indicate that he was Australian. The applicant replied that there was a risk for him even being in [Country 4] using his real name as he may be targeted in [Country 4].

26. The Tribunal confirmed that it was the applicant’s contention that there was a risk for Iranians generally in [Country 4] and a specific risk for him in [Country 4]. He confirmed that was the case.

27. The Tribunal then turned to the matter of the applicant’s wife’s admission to ABF officers that she had, in fact, visited Iran twice, once when she had claimed to have been in [Country 2] and a second time when she had purportedly been in [Country 4]. The Tribunal asked the applicant why his wife would have made that admission. He explained that his wife is very dependent on her family and misses them terribly. The Tribunal acknowledged that, but again asked why she would have made that admission. The applicant replied that he can’t remember her actually making that admission.

28. The Tribunal asked the applicant about the letter from [Named Airline] that had been submitted in support of their claim that they had not flown on the [Named Airline] flights. The Tribunal noted that the document submitted to the Translator appeared to be a plain white document that had no watermark and no stamp over the [Named Airline] official signature. However, the original of the documents had a very clear watermark and a stamp over the official signature.

29. The applicant explained that it was likely that the watermark was not picked up on the scan. He explained that if the scan was made with a low resolution, it would not pick up the watermark. The Tribunal acknowledged this, but queried the existence of the stamp. It asked whether there were two versions of the letter. The applicant stated that he did not know.

30. The Tribunal asked the applicant whether he had anything further to add.

31. The applicant replied that he will be a good Australian. He said his friends and relatives are supportive of them being in Australia. He stated they have not breached any laws in Australia. He stated that he wants to give back to his new country.

32. The Tribunal noted that the applicant had worked for the [specified] Association and participated in [an annual charity] event. It also noted that he was a participant in a choir.

    Conclusion on non-compliance

33. The Tribunal was struck by both the amount of inconsistent evidence adduced for the hearing, and the sheer paucity of evidence, that is, evidence unable to be provided by the applicant in support of his claims. For example, the applicant claims that he visited [Country 4] for four to five weeks, but has been unable to produce one shred of evidence in the form of a copy of the fake passport he states that he used to visit [Country 4], no tickets, boarding passes or receipts relating to his flight to [Country 4], no credit card records of any transaction of any kind whilst he was in [Country 4]. He produced a letter from a friend whom he claims he stayed with, but on examination, that letter does not refer to him staying with that friend, only his wife.

34. The Delegate decided that the applicant did return to Iran [in] March 2015 until his return to Australia, through [Country 3], [in] April 2015. The Delegate based this decision on the discovery of tickets to Iran with [Named Airline] that were located on his wife’s mobile phone by ABF Officers at [City 2] International Airport [in] April 2016. Whilst the applicant maintained that he had not used the tickets to Iran and had, in fact, travelled to [Country 4] on a fake passport, the Delegate determined that that explanation was implausible given that he could have travelled to [Country 4] on his Australian Titre de Voyage documents. The Delegate determined that the applicant had not travelled on fake passport documents, but instead had travelled on valid Iranian passport documents in his own name. The Delegate determined that the applicant has concealed evidence of a valid Iranian passport. Accordingly, given that the applicant did return to Iran and furthermore that his wife had returned to Iran on two occasions between [November] 2012 and [July] 2013 and again between [March] 2015 and [July] 2015, then both the applicant and his wife, having returned to Iran and having remained there for a significant period of time without being harmed or killed and having returned to Australia without incident, indicates that neither he or his wife held the adverse political profiles they had claimed in their Applications for a Protection Visa.

100.   The Tribunal had asked the applicant about his Iranian passport. The applicant had replied that he had no valid passport, indeed the passport that he relied upon to arrive in Australia in 2011 had expired in 2011 and that he had not sought a renewal of it.

101.   The air tickets to Iran on [Named Airline], as found on the applicant’s wife’s mobile phone by ABF officers, were in the actual names of the applicant and his wife. They were not in false names and not in the names of the fake passports allegedly purchased and used by the applicant and his wife to travel to [Country 4]. Accordingly, for an argument to be sustained that the [Named Airline] tickets were actually used, then they must have been used in conjunction with a valid Iranian passport or a fake Iranian passport in the actual names of the applicant and his wife.

102.   The Tribunal has no evidence that the applicant actually has a current and valid Iranian passport.

103.   Equally, the Tribunal has no evidence of the fake passports allegedly acquired and used to travel to [Country 4]. Furthermore, and as indicated above, the Tribunal was particularly troubled by the lack of any evidence from the applicant relating to his visit to [Country 4]. The Tribunal could put no weight on a photo submitted by the applicant of he and his wife purportedly taken in [Country 4], as it had no date stamp and nothing in the photo linking it in any way to [Country 4]. It was a photo that could have been taken anywhere at any time. The same applies to all photos tendered and accordingly no weight has been given to them.

104.   The Tribunal also noted the inconsistency in the applicant’s evidence in relation to the travel to [Country 4]. The Tribunal was troubled by the fact that the applicant could not recall what airline he had travelled on to [Country 4]. But the Tribunal was even more troubled by the inconsistency in the applicant’s evidence where at first, in his statement and in his evidence to the Delegate, he claimed that the air tickets to [Country 4] were contained within the fake passport which he collected at [Country 3] Airport. However, in evidence before the Tribunal, when asked how he obtained the tickets to [Country 4], he stated that he had dashed around to the counter and purchased the tickets at the counter for cash.

105.   The Tribunal also discussed with the applicant why he had used a fake passport if he knew he was only going to [Country 4], as he may have used his Australian travel documents which would not have caused any issues for him at all, acknowledging the risks he was taking using a fake passport. His explanation that he didn’t wish to be in [Country 4] under his real name because of the threats to Iranians and to him personally were not further substantiated. In fact, the Tribunal pointed out to the applicant that he actually heightened the risk against himself by using a fake Iranian passport, a risk which would have been minimised had he used his Australian travel documents. The Tribunal did not find the applicant’s explanation at all compelling.

106.   The explanation of the applicant’s wife however, that a fake Iranian passport was used so that Visas did not need to be obtained to travel to [Country 4] did have some element of plausibility, however, the Tribunal is not aware of any barriers to the applicants obtaining Visas to travel to [Country 4] using their Australian travel documents, especially as they had obtained visas to travel to [Country 3].

107.   The Tribunal has the gravest concerns about the credibility of the applicant’s claims relating to his acquisition of fake passports for his travel to [Country 4].

108.   In his submission to the Tribunal received on 1 November 2018, the applicant presented two versions of a letter from [Named Airline] stating that the tickets purchased in February 2015 in the names of the applicant and his wife were not used and were subsequently resold. The Tribunal noted that there were two versions, one being a scanned and emailed version that did not contain any watermark or stamp over the signature of the writer of the letter, both which were clearly visible on the originals of the letter from [Named Airline] that the Tribunal had subsequently requested. Whilst the Tribunal accepted the applicant’s explanation that a low resolution scan of the letter may not have recorded the watermark, that did not explain the absence of the stamp. When asked about the likelihood of there being two versions of this letter, the applicant could offer no explanation.

109.   The Tribunal did, however, note the explanation of the applicant’s wife as to the existence of two versions of that letter. The applicant’s wife had explained that her mother, when the Tribunal had requested that the original of the letter be sent to it, had taken it upon herself to return to the office of [Named Airline] and request that a stamp be placed over the signature. When asked why the mother would do that, the applicant’s wife replied that she did that in order to make it look “more official”. The fact that a letter could be obtained from [Named Airline] in the form requested, and then to be able to go back to the office and request that it be made more official, causes the Tribunal, in also considering Country Information and the prevalence of the creation of fraudulent documents in Iran, to doubt the genuineness of the letter presented. The Tribunal gave the letters from [Named Airline] no weight.

110.   The Tribunal also had concerns about the applicant’s response to its inquiry about the post-it note which contained the query about where the [Named Airline] counter was. The applicant replied that he made himself a note in order to remind him to obtain a refund at the [Named Airline] counter for the tickets they were not going to use. Given that the applicant claims that he changed his mind some weeks before about using those tickets, and that he had obtained the tickets from a travel agency, the Tribunal finds it somewhat implausible that the applicant could think he could obtain a refund from anywhere but that travel agency and leave it to a time when he would literally be running between flights.

111.   The Tribunal was also troubled by the fact that he and his wife had gone to [Country 4] ostensibly to visit his ill and depressed mother-in-law yet he did not actually see her while he was away. Furthermore, the Tribunal further noted that the applicant’s wife’s claim was that she was in [Country 4] for some four and a half months but only saw her mother for a period of one week.

112.   The Tribunal was concerned by the geo-tracking information obtained by the ABF officers from the applicant’s mobile telephone. ABF Officers noted that the mobile phone had been traced to Iran [in] May 2015 in the vicinity of [City 1] and [in] July 2015 in the vicinity of Isfahan.

113.   The Tribunal does acknowledge that the locating of the applicant’s phone in Iran on those two dates is after the date that he had returned to Australia. However, the applicant did state to the Tribunal that he had left his mobile phone with his wife upon his departure for his return home.

114.   The Tribunal noted the applicant could not explain how his phone was located in Iran other than to offer that there must be something wrong with his phone.

115.   The Tribunal noted a letter from [his service provider] suggesting that the applicant had received a new phone handset in October 2016. The applicant’s wife stated that she gave him a new phone [in] November 2015 and produced an undated photo in support of that contention. Consequently, the Tribunal places little value on the photographic evidence. It further places no weight on the phone records submitted in the form of the telephone bill, as the phone bill submitted relates to the phone of the applicant’s wife. The applicant acknowledged that he left his phone with his wife when he left her in April 2015. The  [letter] suggests the new phone was issued in October 2016, which is after the ABF officers had inspected his phone.

116.   The Tribunal does note from the applicant’s joint submission with that of his wife’s, that the applicant’s wife presented evidence of a receipt to visit a Doctor in [Country 4] [in] April. The Tribunal notes that [April] was after the date that the applicant had returned to Australia. However, on inspection of that letter, the Tribunal is of the view that it has been fabricated, with anEnglish invoice component copied onto a letterhead that is wholly in [the language of Country 4]. Furthermore, the invoice is in the form of an Australian GST Invoice. [Country 4] does not operate pursuant to a GST, rather a VAT. The Tribunal gave that receipt no weight.

117.   Finally, the Tribunal remains particularly concerned by the admissions made by the applicant’s wife to ABF Officers that she had been to Iran twice, once in November 2012 and the second time from March 2015. When queried about this admission by his wife, the applicant replied, in a somewhat confusing response, that his wife was close to her family and misses her family. When asked to clarify, the applicant then stated that he could not recall his wife actually making that admission. He went on to state that the experience with the ABF officers was not pleasant, with them attempting to put words in their mouth to the effect that they had been to Iraq. The Tribunal noted that, but stated that the statement of the ABF officer was very specific as to the applicant’s wife admitting she had been to Iran twice.

118.   The Tribunal can understand the Delegate’s determinations. The applicant’s explanations are flawed and lack any corroborating evidence.

119.   If the Tribunal had incontrovertible evidence that the applicant was in possession of a valid and current Iranian passport, it would have no hesitation in concluding that the applicant had returned to Iran, using tickets purchased on [Named Airline], [in] March 2015. The Tribunal does not accept the applicant’s claims that he visited [Country 4] on fake passports as credible.

120.   The issue that remains for the Tribunal is whether the applicant had a valid and current Iranian passport to enable him to travel to Iran.

121.   Notwithstanding that the applicant was an illegal maritime arrival, with a valid passport, it would be possible for the applicant to seek a renewal of that passport through the Iranian Embassy in Canberra, or to obtain a Lassiez Passer to facilitate his travel, also from the Embassy.

122.   It might also be possible to obtain a fake passport as the applicant proposed, which he was prepared to travel on, notwithstanding the risks identified in the Country Information referenced herein. In fact, Country Information confirmed that there has been trade in fake passports.

123.   Either way, it is not impossible for the applicant to have obtained a travel document that would have facilitated his return to Iran.

124.   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.

125.   Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1]

[1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004)

126.   In Tarasovski v MILGEA[2] Wilcox J said that a court should find that a person had contravened what was then s. 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[3] What Wilcox J said was subsequently applied in Singh v MIEA[4] and Housam Slayman v MIMA[5].  In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:

[2] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.

[3] Briginshaw v Briginshaw (1938) 60 CLR 336

[4] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383

[5] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.

The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. …  A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. [6]

[6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32]

127.   This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[7]  and Sun v MIBP[8]. In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:

[7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555

[8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52

‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’

128.   In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his Statutory Declaration are serious.

129.   The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: that the answers given in the applicant’s Protection visa application form, were incorrect.  In summary the particulars relied upon the applicant’s voluntary return to and residence in Iran for five weeks, and his wife’s return to Iran on two occasions for eight months and then four and a half months as the basis for finding the applicant had provided incorrect information in his Protection visa application about his fears, risk and profile in Iran (and as he was also relying on the fears, risks and profile of his wife).

130.   The applicant and his wife have consistently denied returning to Iran, both to the Delegate and to this Tribunal. As such, the Tribunal has been unable to determine the real reasons for their return to Iran, other than to visit ailing parents of the applicant’s wife. The Tribunal is unaware of the circumstances that met the applicant and his wife upon return to Iran, for instance, whether they were interviewed upon arrival or departure or whether they remained in hiding for the time that they were there.

131.   It is for this reason that the Tribunal, having found that the applicant and his wife have returned to Iran, is unable to make any finding other than that the applicant has provided incorrect information in his original Protection visa application.

132.   The Tribunal has formed an impression that the applicant and his wife have either been advised, or have themselves formed the view, that admission by them of a return to Iran will automatically see them have their Protection visa cancelled. The Tribunal has formed the impression that the applicants wish to remain in Australia and make Australia their home and, accordingly, they have been too terrified to admit they returned to Iran and have fabricated, albeit very limited, evidence in support of arguments that they have visited, in the applicant’s case, [Country 4], and in the applicant’s wife’s case, [Country 2] and [Country 4].

133.   The Tribunal considers this unfortunate for the applicant and his wife as it may have been that each may have been able to provide evidence that they returned to Iran despite their fears because of their concern for the applicant’s wife’s ill parents and that the means by which they returned to Iran and stayed in Iran may not have been in contradiction of the information provided by them in their original Protection visa applications.

134.   Be that as it may, the Tribunal is left with the evidence before it and it is for these reasons, the Tribunal finds there was non-compliance with s.101(b) by the applicant in the way described in the s.107 Notice.

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

Should the visa be cancelled?

136. 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).

137. 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. Briefly, they are:

·     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.

138.   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 Procedural Advice Manual PAM3 ‘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. 

139.   The applicant claimed in his Protection visa application that he would be killed or harmed by the Ettela-At or the Iranian government if he returned to Iran because he was known to them because of his activities associated with his spouse in her previous employment and was previously involved in anti-government demonstrations.

140.   The correct information is that the applicant was not known to the Iranian authorities and did not hold the adverse political profile as claimed in his statement. Despite his claimed fears, the applicant travelled to Iran, departing Australia [in] March 2015, he remained in that country without hinderance or harm from the Iranian authorities and returned to Australia without incident.

The content of the genuine document (if any)

141.   The prescribed circumstance is not relevant in the present case.

Whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document.

142.   The decision to grant the applicant his Protection visa was based on his meeting the definition of “refugee” within the meaning of the Refugees Convention and the relevant provisions of the Act and he was found to be a person to whom Australia owed protection obligations.

143.   As has been discussed with the applicant, the Tribunal considers that the applicant would not have been granted a visa if it had been known that he had given incorrect answers about his claims in his application for the visa.

The circumstances in which the non-compliance occurred.

144.   Upon arrival in Australia via Christmas Island, the applicant was transferred to [City 2].  He remained in an immigration centre for eight months.  Thereafter, he was transferred to [city] for four months and then returned to [City 2] again and was released conditionally into the community.  The applicant completed a Protection visa application in [City 2] with the assistance of a Migration Agent, after a finding by the Independent Protection Assessment Delegate.  The Tribunal noted that the applicant’s claims in his Protection visa application largely followed the findings of the Independent Protection Assessment Delegate. 

The present circumstances of the applicant.

145.   The Tribunal noted that the applicant and his wife now have a [baby]. 

146.   The applicant advised the Tribunal that he was working in [Employer 2] [as an Occupation 1].  He further advised that he and his wife had bought a house at [Suburb 1] and provided documentary evidence of the mortgage.  The Tribunal asked the applicant whether he was performing any community work at present.  The applicant replied that he was not presently doing so but had done volunteer work when he was in detention.  Asked the nature of such work, he said he helped friends with their [specific] problems. 

The subsequent behaviour of the applicant concerning his obligations under Sub Division (c) of Division 3 of Part 2 of the Act.

147.   The Tribunal noted that the applicant, despite having received a Protection visa by the Australian Government and receiving Australian travel documents, had nevertheless claimed to have sought out and purchased a fake Iranian passport to use for international travel. 

Any other instances of non-compliance by the applicant known to the Minister.

148.   The applicant advised that there had been no breaches of his visa terms.

149.   On the basis of the evidence before the Tribunal there are no other instances of non-compliance by the applicant known to the Minister.

The time that has elapsed since the non-compliance.

150.   The Tribunal notes that the applicant has been in Australia since 2011 and that his visa was cancelled in 2017 and that one and a half years have since elapsed. The applicant advised that the cancellation of his visa was causing he and his wife great stress, that he can’t travel and that therefore they cannot meet for family reunions as they had in [Country 1] in 2016.  He said it was also impacting on his own health.

Any breaches of the law since the non-compliance and the seriousness of those breaches.

151.   The applicant advised that he has not breached any law, not even a traffic offence.

152.   On the basis of the evidence before the Tribunal the applicant has not breached the law since the relevant non-compliance.

Any contribution made by the applicant to the community.

153.   The applicant reiterated his volunteer work whilst he was in detention.

154.   His statement also identified work he had done with the [specified] Association and that he participated in [a charity] event.

155.   The Tribunal accepts that the applicant has worked and contributed to the taxation system. The Tribunal also accepts that the applicant has integrated into his community and has formed a number of close friendships.

Whether there would be consequential cancellations under s.140.

156.   There are no persons in Australia whose visa would, or may be, cancelled as a consequence of the cancellation of the applicant’s visa.

Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child. 

157.   The Tribunal discussed with the applicant the status of the nationality of his baby. The applicant maintained that the baby had been born in Australia and was an Australian. The Tribunal noted that the baby was born of two parents whose visas had been cancelled and therefore currently had the nationality of her parents.

158.   The Tribunal is satisfied that the applicant’s child is entitled to Iranian citizenship.

159.   Australia is a signatory to the Convention of the Rights of the Child (CROC), and has an obligation to ensure that in all actions concerning children, the best interests of the child is a primary consideration. The Tribunal notes this requires a decision-maker to have regard to the consequences of cancellation, including whether a child will be separated from a parent.

160.   In the applicant’s circumstances, he will not be separated from his infant child as the outcome of this review will be the same as the outcome of the review of his wife’s application. The Tribunal acknowledges the concerns the parents have for the child in terms of the comparative freedoms the child may have in Australia, and takes that into consideration.

161.   If the applicant’s visa is cancelled, he would be subject to s.46(1) of the Act, barring him from applying for a further visa in Australia (including a Bridging Visa) unless the Minister exercises his non-compellable discretion. Further, if the applicant’s visa is cancelled, he would be subject to the s.48A(1B) bar. He would also become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act.

162.   The Tribunal understands that an International Treaties Obligations Assessment would be conducted prior to the applicant being removed from Australia.

Conclusion

163.   Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program. By his deception, the applicant has retained significant benefit. The Tribunal is satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing his claims to be granted a Protection visa. The Tribunal is satisfied that as an Iranian citizen, the applicant will have access to the benefits and rights accruing to Iranian citizenship on his return.

164.   However, the Tribunal notes that the applicant has resided in Australia for around eight years and this is a substantial period of time. Since arriving in Australia, he and his wife  [have] one Australian-born child. The applicant has no known criminal record. The applicant is highly qualified in [Occupation 1] and presently works for [Employer 2]. Prior to that, he was employed with the [Employer 1]. It is not unreasonable to expect that given his qualifications and international experience in working in [Occupation 1], he is imparting his knowledge and experience to others which will benefit a fast-growing industry sector. His wife is similarly employed and notes that she was offered a position with [Employer 3] in its [certain] Division. His wife did not take up that position by reason of a need to return to see her dying father. It is assumed that the qualifications of the applicant and his wife are such that employers such as [Employer 3] and [Employer 2] place great value on them in what would be considered security sensitive environments.

165.   The Tribunal notes that the applicant and his wife have purchased a house together at [Suburb 1] and have secured a mortgage to achieve that. The evidence would suggest that they have integrated favourably into their community.

166.   Since arriving in Australia, the applicant has engaged in volunteering and charity services, assisting [organisations]. The Tribunal favourably considers the applicant’s contribution to the wider community [on] a pro-bono basis.

167.   The applicant’s presence in Australia and the contributions that he and his wife have made to Australian society have moved the Tribunal.

168.   However, given all of the findings herein, including the willingness of the applicant to deceive the Australian authorities, and to deliberately maintain before the delegate and this Tribunal that he travelled to places other than Iran, the Tribunal is satisfied that the applicant is not a generally credible witness, and even allowing for the overweighting of the considerations identified above and particularly in paragraphs 164 – 167, is unable to exercise its discretion in the applicant’s favour.

169.   After considering all of the evidence cumulatively, but considering particularly the applicant’s duplicity, the Tribunal does not accept that it is unreasonable that the applicant’s visa be cancelled, even allowing for the substantial impact it would have on him, his wife and his Australian-born child.

170.   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, and it has, after having regard to all the relevant circumstances, concluded that the visa should be cancelled.

DECISION

171.   The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Michael Hawkins
Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

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

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

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

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

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

97Interpretation

In this Subdivision:

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

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

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

98Completion of visa application

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

99Information is answer

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

100Incorrect answers

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

101Visa applications to be correct

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

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

107Notice of incorrect applications

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

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

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

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

(A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

(f)     requiring the holder:

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

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

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

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

(b)     otherwise—14 days.

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

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

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

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

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

108Decision about non‑compliance

The Minister is to:

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

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

109Cancellation of visa if information incorrect

(1)The Minister, after:

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

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

(c)     having regard to any prescribed circumstances;

may cancel the visa.

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