1724128 (Refugee)

[2018] AATA 3052

1724128 (Refugee) [2018] AATA 3052 (9 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1724128

COUNTRY OF REFERENCE:                  Iran

MEMBER:Alison Murphy

DATE:9 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 09 July 2018 at 11:50am

CATCHWORDS
Refugee – Cancellation – Protection visa – Iran – Fraudulent documentation – Ethnicity – Stateless Faili Kurd – Religion – Christian – Fear of harm for Christian conversion – Failed asylum seeker from Western country – Incorrect information – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

BACKGROUND TO THE APPLICATION FOR REVIEW

1. The applicant arrived in Australia in 2009 and was granted a protection visa on 21 January 2010.  The protection visa was granted on the basis of claims he made in an application for refugee status assessment (the visa application) in which he stated among other things that he was a stateless Faili Kurd from Iran without identity documents.  He stated that as a stateless Faili Kurd, he was not entitled to get married, buy a house or a car and faced persecution from the Iranian authorities.

2. The Department subsequently became aware that a person who appeared to be the applicant’s brother, [Mr A], had arrived in Australia in 2013. [Mr A] claimed to be an Iranian citizen and provided identity documents for himself and his parents indicating that they were each Iranian citizens.

3. In a notice issued under s.107 of the Act dated 4 August 2017, 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, nationality and reasons for leaving Iran.

4. On 15 September 2017 a delegate of the Minister cancelled the applicant’s visa and on 5 October 2017 the applicant applied to this Tribunal for a review of the decision. 

5. 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.

6. The applicant appeared before the Tribunal on 13 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

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

   THE SECTION 107 NOTICE

8. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

9. On the Departmental file is a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 4 August 2017 advising him 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 but did not provide a response. 

10. 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 have him the required opportunity to respond.

11. 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 applicant’s application for a protection visa

12. The applicant arrived in Australia on 26 October 2009 by boat.  As set out to the delegate’s decision dated 15 September 2017 (a copy of which was provided to the Tribunal by the applicant), the applicant submitted a statutory declaration in November 2009 and a protection visa application in February 2010 in which he stated he was born in Iran but he was stateless and did not hold citizenship in any country.  The delegate’s decision sets out the claims made by the applicant in his written claims including that he was not entitled to citizenship because he is a Faili Kurd, he did not have any identity documents and he was not entitled to get married or buy a house or a car because he did not have identification.  He stated he will be accused by the Iranian authorities of things he has not done and that his own uncle had tried to leave Iran and was caught by the authorities and interrogated and detained was interrogated and detained since March/ April the year before.

    The Notice of Intention to Consider Cancellation

13. As set out to the delegate’s decision dated 15 September 2017 (a copy of which was provided to the Tribunal by the applicant), a person named [Mr A] arrived in Australia in 2013. Information received by the department from [Mr A] about his family composition closely matched information given by the applicant in his own protection visa application and caused the department to consider [Mr A] and the applicant were brothers.  That information was set out in the NOICC and the delegate’s decision as follows:

Family composition provided by the applicant	Family composition provided by [Mr A]
Father: [Father’s name] DOB [year]	Father: [Additional name in father’s name] DOB [year]
Mother: [Mother’s name] DOB [year]	Mother: [Variation of mother’s first name] DOB [Different year of birth]
Brother: [Brother’s name] DOB [year]	Brother: [Variation of brother’s surname] DOB [year]
Brother: [Name] DOB [year]	Brother: [Mr B] DOB [Different year of birth]
Brother: [Name] DOB [year]	Brother: [Variation of brother’s name] DOB [year]
Sister: [Name] DOB [year]	Sister: [Variation of sister’s surname] DOB [year]

1. The delegate’s decision sets out that [Mr A] declared in his own protection visa application that he was an Iranian citizen and also provided identity documents confirming that both he and his parents were each Iranian citizens. This caused the department to consider the applicant’s correct name was [Mr B] and he was an Iranian citizen. 

2. The NOICC issued dated 4 August 2017 advised the applicant that the department was considering cancelling his protection visa on the basis that he failed to comply with his obligations under s.101(b) of the Act because he had given the following incorrect information in his application as to his identity and citizenship.

3. The applicant did not respond to the NOICC.

4. On 15 September 2017 a delegate cancelled the applicant’s protection visa, finding that as the applicant provided incorrect information in his application he did not comply with s.101(b) of the Act.

5. At hearing before the Tribunal the applicant conceded he had given incorrect information in his application for refugee status assessment, but stated that incorrect information was limited to his name and biographical details.  He maintained he was a stateless Faili Kurd from Iran by the name of [Applicant’s name] (with no other name) and stated he had incorrectly identified himself to the Australian government as [Applicant’s name], when in fact that was the name of the person from whom he had purchased a passport to leave Iran. 

6. The applicant stated his true identity was [Applicant’s name], that he did not know his date of birth but he believed he was born in [year] or [year] in Ilam, Iran (formerly Ilam, Iraq), that he had no other names or identity documents and that he was a stateless Faili Kurd from Iran.  He stated he had bought a passport from [Mr B] in order to leave Iran as he was unable to obtain his own passport because he was stateless.  He stated he had paid someone to alter the name on [Mr B’s] passport to [Applicant’s name] and replace the photo of [Mr B] in that passport with his own photo.

7. The applicant agreed that [Mr B] is the brother of [Mr A] and that they and their family are Iranian citizen Faili Kurds.  He stated he had made as few changes as possible to [Mr B’s] passport and he had used that passport and identity only to depart Iran, throwing the passport away when he arrived in [Country 1].

8. When asked if [Mr B] was known to him, he said he knew him because they had worked together in Iran.  When asked if [Mr A] was known to him, he stated he was the brother of the person he had bought the passport from.  When asked if he had met [Mr A], he stated firstly that he had met him in Iran and later that he had met him in Australia.

9. At hearing I noted that if he only obtained a false passport in order to leave Iran and he got rid of that passport in [Country 1], there didn’t seem to be any reason for him to continue using that false identity when he arrived in Australia, particularly given he knew it to belong to an Iranian citizen when he was claiming to be stateless.  The applicant stated he did so because he was scared and unaware of Australian immigration laws and worried he would be deported back to Iran in his own name.

10. At hearing I asked the applicant which, if any, information in his application related to his own circumstances rather than those of [Mr B].  The applicant stated several times that all the biographical and identity information contained in his visa application related to [Mr B], while all the claims in his statement of claims related to the applicant and were a true description of his experiences living as a stateless Faili Kurd in Iran.

11. At hearing I went through with the applicant all the information he had provided in his visa application in order to establish which of that information he now claimed related to him.  The applicant stated that the date and place of birth listed are those of [Mr B] and not the applicant.  When asked his own place and date of birth, he stated it was in [year] or [year] in Ilam but there were no records because it was during the Iran – Iraq war.

12. In relation to the address history given in the visa application, the applicant stated it was the address history of [Mr B], although the applicant had also lived in Ilam and Tehran.  When asked how he would know the address history of [Mr B] going back almost twenty years, the applicant stated that he just assumed given that was where he was living when the applicant was working with him.  When asked if he had lived at the same addresses as [Mr B] the applicant denied it, although he stated he had lived elsewhere in Tehran and Ilam.

13. In relation to the education history given in the visa application, the applicant stated it related to [Mr B].  When asked how he knew where [Mr B] had gone to school, the applicant stated he didn’t know it rather he just made it up.

14. In relation to the family details listed in the visa application, the applicant stated these are the details of [Mr B’s] family and not his own.  He stated his only surviving close family member is his mother who lives in Ilam.  When I asked him about the uncle he had mentioned in his written claims, he said he didn’t remember which uncle he was talking about but he might have said something in the past. 

15. When I advised him that he had stated in his written claims that he had an uncle who was having difficulties with the Iranian authorities he stated he had an Uncle [who] was killed by Saddam Hussein in about 1984 or 1985 during the war.  When I pointed out he had made reference in his written claims to another uncle who was having difficulties with the Iranian authorities in about 2008 or 2009, he said that was not true and he had just the once uncle who was killed during the war.  When I asked him why he would have stated in his written claims that he had an uncle who was detained and interrogated by the Iranian authorities in 2008 or 2009 if it wasn’t true, he stated that he tried not to use his own story in his claims in case he got sent back to Iran.

16. For the following reasons I do not accept the applicant’s claim that he is not [Mr B]:

    ·The applicant applied for, and was granted, a visa under the name of [Applicant’s name] in 2009 giving biographical details that he acknowledges are the correct biographical details for [Mr B] and he has lived in Australia under that identity since 2009.  He has only claimed [Applicant’s name] is not his true identity since the department has become aware that the brother of [Applicant’s name] is an Iranian citizen and his family is not stateless as claimed by the applicant in his application for refugee status;

    ·The applicant acknowledged at hearing that [Applicant’s name] and [Mr B] are the same person,  that [Mr B] is the brother of [Mr A] and they are and their families are Iranian citizens;

    ·The applicant’s evidence at hearing as to his personal details bears strong similarities to those personal details he has given for [Applicant’s name], whom he now acknowledges is [Mr B].  They share a similar first name and at hearing the applicant gave his date of birth as being [year] or [year] in Ilam while [the applicant] was born in [year] in Ilam. He also gave evidence that while [Applicant’s name] worked as [an occupation] in Tehran and Ilam, the applicant himself also worked as [an occupation] in Tehran and Ilam;

    ·The applicant claims the only reason he obtained a passport in the name of [Applicant’s name] was so that he could depart Iran and he threw that passport away when he arrived in [Country 1]. I consider if that were the case, he had no reason to present himself to the Australian government under a false identity obtained only for the purpose of departing Iran, rather he could have given his own name and biographical details particularly given he was aware that [Mr B] is an Iranian citizen while the applicant’s own claims rested on him being stateless.  I have considered the applicant’s explanation that he gave a false identity because he feared being deported back to Iran under his true name.  In view of my serious concerns about the applicant’s credibility, I do not accept that explanation;

    ·I consider it implausible that the applicant would have such a detailed knowledge of [Mr B’s] family members if he was not related to that family. I note he gave the same first names and years of birth for [Mr B’s] parents and four siblings as were given by [Mr A] in his own visa application (as set out in the delegate’s decision, a copy of which was provided to the Tribunal by the applicant).  The only detail in which those details were inconsistent was in respect of the year of birth of the mother of [Mr B] and [Mr A].  I have considered the applicant’s explanation that he obtained this biographical information from [Mr B] at the time he bought his passport, but my concerns about the applicant’s credibility cause me to doubt that to be true;

    ·The applicant claims to have thrown away the passport in the name of [Applicant’s name] and has never produced to the Australian authorities any Iranian identity documents issued under any name;

    ·At hearing the applicant admitted giving other false information in his visa application unrelated to his identity or nationality.  For example he gave evidence that his statement in his written claims that his uncle was detained and interrogated by the Iranian authorities was not true and he did not have an uncle.  I have considered his explanation that he did so because he didn’t want to use his own story in his protection claims but I do not consider that to be a reasonable explanation for providing false information.  I consider the applicant’s willingness to include false information about his uncle reflects poorly on his credibility;

    ·For the reasons set out elsewhere in this decision, I have significant concerns about the credibility of the applicant’s other claims and overall I assess his credibility as poor. I consider his recent claim to be of a different identity to the person he claimed to be when he arrived in Australia is an attempt to distinguish his country of nationality from that of his family, given it is now clear the family of the person he claimed to be when he arrived are not stateless as previously claimed by the applicant.

17. For the above reasons, I do not accept the applicant’s claim that he applied for and was granted a protection visa under the identity of an unrelated person from whom he purchased a passport.  Rather I find the applicant is [Mr B].  I find he is the brother of [Mr A] and that the applicant and his family are Iranian citizens and not stateless. 

18. I do not accept the applicant altered the identity in his Iranian passport from [Mr B] to [Applicant’s name] before he left Iran, rather I find he departed Iran on a genuinely issued passport in his own name.  I find that when he arrived in Australia, the applicant identified himself to the Australian authorities as [Applicant’s name] in order to distance himself from his true identity of [Mr B]. 

    Conclusion

19. As I have found the applicant gave incorrect information about his name and his citizenship in his visa application, I find there was non-compliance by the applicant with paragraph 101(b) of the Migration Act in the way described in the notice sent to him under section 107 of the Migration Act.

    Should the visa be cancelled?

20. 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).

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

22. As noted above, the applicant did not respond to the s.107 notice. I have considered the applicant’s evidence at hearing and I have also had regard to the prescribed circumstances set out in regulation 2.41 of the Migration Regulations 1994 and to the other matters required to be considered as a matter of government policy as set out below.

23. The correct information: I consider the correct information is that the applicant is an Iranian citizen, [Mr B].

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

25. 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 name].  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.

26. 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.  At hearing before me, the applicant acknowledged he had given incorrect information about his identity, which he stated was because he was afraid of being deported back to Iran under his own identity.  For the reasons set out above, I do not accept that explanation. The applicant continues to maintain he is stateless and not an Iranian citizen, however I have not accepted that to be true. 

1. The present circumstances of the visa holder: The applicant gave evidence he currently lives in a rooming house [and] is undertaking an online course that would enable him to obtain employment with [a company] which has employed him in the past.  He is currently in receipt of Centrelink benefits. He had a girlfriend for several years but they have separated now, although he hopes to marry in the future.  He stated he was focused on his studies and getting a job and had paid tax in Australia for the first four years he was here and is a hard worker.  He has no dependants in either Australia or Iran.

2. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act:

3. The applicant stated he had applied for Australian citizenship but his application hadn’t been progressed and he had visited the Department on two occasions.  He said he did not respond to the NOICC because his lawyer told him to wait and see what happened.

4. Any other instances of non-compliance by the visa holder known to the Minister: On the basis of the evidence before me there are no other instances of non-compliance by the applicant known to the Minister.

5. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his visa application in 2009 and approximately nine years have elapsed since then.

6. 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.

7. Any contribution made by the holder to the community:  The applicant stated he had tried his best not to use drugs or break the law or make problems and that he undertakes volunteer works at church and helps homeless people.  When asked to elaborate he stated that when he went to church he would sometimes do a bit of a clean up and help people wipe tables and things like that.  He said when he lived in [a suburb] he took plates of food to homeless people in the city a few times.  I accept the applicant may have given food to homeless people on a few occasions.  However for the reasons set out below I do not accept the applicant has attended church in Australia or Iran.

   Other factors to be considered

8. 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 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.

9. Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations under relevant international agreements: 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 also reports that Faili Kurds who are Iranian citizens have the same access to services and employment as other Iranian citizens[1]. The applicant responded that if the information in those reports came from the Iranian government it is all lies and that in any event, he wasn’t an Iranian citizen but an undocumented Faili Kurd.  For the reasons set out elsewhere in this decision I have not accepted that to be true.

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

10. At hearing the applicant told me he did not have a job in Iran and the currency was ten times worse than when he left.  I note the applicant’s evidence he worked as [an occupation] in Tehran and Ilam in the past and I do not accept he will be unable to find employment in the future.

11. 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 paragraph 5J(4)(b) of the Migration Act or a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act, because he is a Faili Kurd, if he returns to Iran now or in the reasonably foreseeable future.

12. 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 Christian conversion

13. At hearing the applicant gave evidence he had converted to Christianity and his life would be in danger if he returned to Iran for that reason.  At hearing he said he was not really respected by his family in Iran because of his religious conversion and if he returned his family would be going to mosque while he would be going to church.

14. At hearing I asked the applicant when he first became interested in Christianity and he said it was since he arrived in Australia.  He said he had done a lot of research and he couldn’t say that he was 100% Christian as he was still researching it.  When I asked about his conversion to Christianity he said it was about a year ago.  When asked how he had converted, he stated he was baptised into the Baptist church last year.  When I asked if he had any documents relating to his baptism he said that he didn’t think he needed them but that he could get them.  When I asked the name of the church in which he was baptised he said that he hadn’t actually been baptised in Australia last year, rather he was baptised in Iran.  When I asked why he had just given evidence he was baptised a year ago in Australia, he said that was when he fell in love with Christianity but he was baptised in Iran about ten years ago.

15. I discussed with the applicant my understanding that Christian churches in Iran are not permitted to convert Muslims to Christianity and face grave penalties for doing so[2] and the applicant agreed, saying there was no freedom to practise religion in Iran.  I put to the applicant that it seemed strange he would have been baptised in Iran in those circumstances and he said there were underground places you could go to get baptised. I asked the applicant why he was baptised in Iran ten years ago given his evidence he had only become interested in Christianity since arriving in Australia and only fell in love with it last year.  The applicant stated he had a secret life in Iran that was not acceptable to his family and relatives who would have killed him if he had talked to them about Christianity.  He said his conversion to Christianity in Iran was like a joke, the meaning wasn’t there and it was just something he had done.  He said that here in Australia he could do the research into Christianity he couldn’t do in Iran.  When asked about his baptism in Iran, he said he couldn’t remember much but he remembered a man put him in a bath full of water and he had to put his head under the water.

    [2] Ibid at 3.30

16. When asked to describe his practice of Christianity in Australia now, he stated that because he had had to move around a lot he couldn’t really practise his Christianity or go to a specific church so it didn’t really happen for him.  He said sometimes if he went to church he would wipe tables or put rubbish away but that was all he did.  When asked if there was a particular church he [attended], he stated there was a church in [a suburb] that he used to go to and also one in [another location] that he sometimes went to.  When asked if there was any church where he would be known by the priest or the congregation, he said he didn’t know because he went to different churches and didn’t know if he was seen or not.  He said he intended to be baptised in the future, but he didn’t have a date for that yet.

17. I consider the applicant’s evidence about his Christian conversion and practice to be both vague and internally contradictory.  He claimed first to have been baptised in Australia last year, and then said that hadn’t in fact taken place.  He then claimed to have been baptised in Iran ten years ago, even though his earlier evidence was that he had only become interested in Christianity since arriving in Australia in 2009.  He later said his conversion to Christianity in Iran was like a joke and had no meaning and was unable to recall much about his baptism.  He gave evidence he has not regularly attended any church or practised Christianity in Australia and he does not appear to be known to any priest or church congregation. 

18. On the evidence before me I do not accept the applicant has attended any Christian church in Iran or Australia.  I do not accept he has been baptised into the Christian faith either in Australia or Iran, nor that he intends to do so.  Nor do I accept he has had any other involvement with the Christian church in Australia with the intention of learning about or becoming involved with that faith.  Rather I consider the applicant’s claims to have converted to Christianity in Iran and Australia to be fabricated in their entirety.

19. Having found that the applicant’s claimed conversion to Christianity is not genuine, I find that he will not seek to practise the Christian faith or otherwise engage in any Christian related practices upon his return to Iran. I do not accept that the applicant will be viewed as or perceived to be an apostate by his family, the Iranian authorities or any other group or person for any reason relating to his claimed conversion to Christianity. It follows that I do not there to be a real chance the applicant will suffer persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act or a real risk he will suffer significant harm as defined in subsection 36(2A) of the Act for this reason for reasons of his claimed conversion to Christianity.

    Fear of harm for illegal departure from Iran/ failed asylum seeker

20. I have considered whether the applicant may face serious harm or significant harm if he returns to Iran because he departed illegally by using a false or fraudulently altered passport. At hearing the applicant told me there will be a criminal record of his departure from Iran because he used a false passport. However for the reasons set out above I have not accepted the applicant departed Iran on a false or fraudulently issued passport as claimed, rather I have found his true identity is [Mr B] and he departed Iran on his own genuinely issued passport. It follows I do not accept he breached Iran’s departure laws and therefore I do not accept there to be a real chance the applicant will suffer persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act or a real risk he will suffer significant harm as defined in subsection 36(2A) of the Act for this reason.

21. I accept the applicant has been in Australia for nine years and does not have a current Iranian passport and that in the process of return he may be identified by the Iranian authorities as a failed asylum seeker from a western country. 

22. At hearing I discussed with the applicant DFAT’s advice that international observers report that Iranian authorities pay little attention to failed asylum seekers on their return to Iran and have little interest in prosecuting them for activities conducted outside Iran, including in relation to protection claims[3]. The applicant disagreed with that information, stating the Iranian government made such claims to satisfy the media and international interests and that if he was returned to Iran he would be arrested. However I give weight to the DFAT information and I do not there to be a real chance the applicant will suffer persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act or a real risk he will suffer significant harm as defined in subsection 36(2A) of the Act for the reasons that he is a failed asylum seeker from a western country.

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

23. For the reasons given above, I do not accept the applicant’s removal from Australia would be in breach of Australia’s non-refoulement obligations under relevant international agreements.

    Other matters

24. 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 not be in breach of Australia’s non-refoulement obligations under relevant international agreements.

25. I accept the applicant does not wish to return to Iran and that returning to Iran will cause him some degree of hardship, however in the circumstances of this case I consider that other considerations outweigh the applicant’s desire to remain in Australia.  I give weight to my finding the applicant’s incorrect information that he was 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 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.  Having given careful consideration to all the relevant circumstances, I have concluded that the applicant’s visa should be cancelled.

    CONCLUSIONS

26. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

27. The Tribunal affirms the decision 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 – 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.