1729165 (Refugee)

1729165 (Refugee) [2019] AATA 6439 (5 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1729165
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Mara Moustafine
DATE:5 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 05 September 2019 at 8:48am

CATCHWORDS
REFUGEE – cancellation – protection visa – Stateless – ground for cancellation – provided incorrect answers in visa application – family name – Arabic and Persian variant of surname – country of citizenship – Iranian citizen – claimed statelessness – runs contrary to country information – credibility concerns – vague and inconsistent evidence – consideration of discretion – grant of visa based wholly on incorrect information – mental health condition – non-refoulement obligations – Arab community in Iran – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASE
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
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 applicant for review is [the applicant], who arrived in Australia as an irregular maritime arrival (IMA) [in] June 2010. On 28 August 2011 he applied for a Protection visa, which was granted on 5 October 2011 on the basis that he was stateless in Iran and required protection.
3. On 28 June 2017 the delegate sent the applicant a Notice of Intention to Consider Cancellation under s.109 (NOICC). On 21 July 2017 the applicant responded to this notice through his migration agent.
4. The delegate cancelled the visa on the basis that the applicant had not complied with s.101(b) of the Act in that he had provided incorrect information in his Protection visa application form. The delegate went on to consider the prescribed circumstances set out in Reg. 2.41 of the Migration Regulations (the Regulations) and other matters relevant to the exercise of discretion. The delegate found that on balance the visa should be cancelled.
5. On 22 November 2017 the applicant applied for a review of the delegate’s decision. He was represented in relation to the review by his registered migration agent.
6. The applicant appeared before the Tribunal on 7 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The application’s migration agent attended the Tribunal hearing.
7. 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
8. 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.
9. 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.
The Tribunal has received a number of Departmental files relating to the visa cancellation, those files being:
·     Protection visa Cancellation file [Department file number]
·     Protection visa file [Department file number]
·     Applicant’s Protection visa application
·     Applicant wife’s [Partner] visa file [Department file number]
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.
Section 438 certificates
As a preliminary issue the Tribunal notes that the Department’s file relating to the cancellation of the applicant’s Protection visa ([Department file number]) contained a notification issued pursuant to s.438 of the Act restricting the disclosure of certain documents in the file, in particular folios 1 to 4, 24 to 27, 39 to 70, 122, 127 to 132 of the file.
The documents in 1 to 4 (a Departmental referral for consideration of the applicant’s visa cancellation dated [August] 2015, referencing referral for cancellation of a number of unrelated individuals) and 24 to 27 (email correspondence regarding the application for a partner visa by the applicant’s wife) were restricted on the basis that they contained documents or information relating to investigations by the Department, including information pertaining to other applicants and third parties, disclosure of which might reveal investigation methodology and may have a substantial adverse affect on the proper and efficient conduct of the Department’s operations. Folios 39 to 70 (email correspondence between Department and Centrelink regarding the applicant and a case assessment document) were restricted because they contained documents or information provided confidentially by Centrelink under the Australian Privacy Provisions, disclosure of which might have a substantial adverse effect on the proper and efficient conduct of the Department’s operations. Folios 122 and 127 to 132 (email correspondence regarding protocols about issue of identity documents in Iran) were restricted because they contained information regarding the identity and contact details of officers provided confidentially, disclosure of which might compromise the security of Departmental officers.
The Tribunal discussed the notification referred to above with the applicant at hearing, outlining the nature of the restricted information. The Tribunal explained that it considered the notification to be valid, but that information covered by the notification, which was relevant to the applicant’s review, was already known to the applicant as it had been outlined in the Department’s NOICC and cancellation decision and fully discussed at the hearing. Other documents covered by the notification were irrelevant to the review. The applicant’s representative did not make any submissions on the validity of the notification or the material when invited to do so.
Was there non-compliance as described in the s.107 notice?
The Notice of Intention to Consider Cancellation under Section 109 of the Migration Act 1958
The non-compliance identified and particularised in the s.107 notice was non-compliance with s101(b) of the Act in the following respects.
[In] June 2010 the applicant arrived in Australia as an IMA. On 3 September 2010, he lodged a Refugee Status Assessment (RSA) and signed a Statutory Declaration explaining his reasons for leaving Iran and seeking asylum in Australia.
On 28 September 2011 the applicant lodged an application for a Protection visa. As part of this application he provided a Form 866 - Application for a Protection (Class XA) visa. At Questions 1, 7, 19 and 22 of part C of the Form, he provided the following information:
Family name: [Surname 1]
Given names: [Given name 1]
Date of Birth: [Date 1]
And age: [Age 1]
Your citizenship at birth: Stateless
Do you hold any other citizenship or are you a national of any other country? No.
In answering questions 42 to 48 on his Form 866C – ‘Your reasons for claiming protection’ – the applicant referred to his signed Statutory Declaration dated 3 September 2010, which he resubmitted. In this declaration he stated in part:
Introduction - Citizenship
2. I am stateless by birth, I have no citizenships and I am not entitled to citizenship nor have I right to reside in any other country.
5. I was born in the city of Basra in Iraq and so were my parents and my [sibling]. I am aware that in 1980, my parents, [sibling] and I were expelled from Iraq.
6. My family and I were all citizens of Iraq until Sadam decided to cancel our citizenship and red stroke was put on one of the corners of our birth certificates which were taken from us at the border.
9. I met my wife [Ms A] in [year] in Yazd and a few months later we were married, my wife is an Iranian citizen.
10. [Child 1] was born almost a year later and [Child 2] was born 5 year after this.
13. My father-in-law bribed somebody, he gave them 50 000.00 Tumans and we were able to secure a birth certificate for [Child 1], he also paid [amount] Tuman for [Child 2] when he was born and we also secured a birth certificate for [Child 2].
The country to which I fear returning
14. Iran and Iraq.
Why I left Iran
15. As an undocumented and stateless person and unlawful in Iran. We couldn't obtain any basic benefits and rights such as further education, work rights, medicals, a driver's license or travel between cities.
16. In 2004, I travelled from Yazd to [City 1] to visit a friend and was stopped at a check point and badly beaten by the police and had to pay a fine.
17. The all time I was working, I was working illegally with the fear that I could get caught, arrested and detained.
18. I have been trying to leave Iran for 10 years now but was unable to do so not only because I didn't have enough money but also because I didn't know anyone that could help me leave Iran.
19. I have now succeeded in saving a little bit of money and barrowed the rest from my parents in law.
20. I was a refugee in Iran and have been since I was [age] years old. I have no rights and I have no prospect changing this, I am denied the right to provide for my family and any basic human rights such as access to medicals or just travel, I cannot obtain a driver's license or hold a bank account other that a saving account but because I am not allowed to work, employers take advantage of my despair and pay me less than a third they would otherwise pay.
21. I couldn't go to Iraq either because there is no safety, there is terrible sectarian fighting between Shia and Sunis and protection is available to either.
22. My wife and children are Iranian and will be targeted as much if not more than me.
What I fear may happen to me in IRAN
23. I will probably be caught at the airport and detained, because I have no identification, they will beat me up as I know they always do and probably deport me or worst, if they were to kill me, no one would even know about it.
Who I think may harm/mistreat me in IRAN and why.
24. The government or its agents
Do I think the authorities of that country can and will protect me and or my accompanying family members, where applicable, if I/ we were to go back.
25. No, I have no documents at all and if l had the misfortune been ask for an ID, I would be detained and beaten, thankfully to date, I have always succeeded in avoiding them but my luck will surely run out one of these days.
Do I think that there is a place in that country where I could be safe.
26. No.
On 5 October 2011 based on this information and meeting all other relevant criteria the applicant was granted an XA 866 Protection visa.
It came to the Department’s attention that [in] March 2015 the applicant departed Sydney Kingsford Airport on his Australian Titre De Voyage travel document [number] and returned on the same document [in] April 2015. He indicated on his outgoing passenger card that he would spend one month abroad, with the majority of time being in Iran.
[In] December 2013 the applicant’s wife [Ms A] ([date of birth], F) lodged an application for a [partner] visa, on which the applicant was listed as her sponsor. In support of this application she provided her Iranian birth certificate Serial No: [number] ID Card No: [number], which indicated that she was married on [date], listed both children [Child 1] ([date of birth] [gender]) and [Child 2] ([date of birth],[gender]) and identified her husband as:
Family name: [Surname 2]
Given Names: [Given name 1]
In the notice, the delegate identified nine questions in the applicant’s Protection visa application Form 866C to which she considered he had provided information which was incorrect in light of information about him contained in the documents provided in the context of his wife’s Partner visa application. This included that:
a.    At question 1, he had given his name as [Given name 1] [Surname 1], while on the birth certificate provided by his wife in support of her [partner] visa application, he was identified by the name [Given name 1] [Surname 2].
b.    At question 7, he had given his date of birth as [Date 1] and age [Age 1] years, while his wife's Iranian Birth Certificate under the Marriage information section indicated his date of birth as [Date 2] and his age [Age 2] years.
c.     At question 19, he identified his citizenship at birth as Stateless. However it appeared from the birth certificates and passports of his wife [Ms A] and two children [Child 1] and [Child 2], provided in the context of her Partner visa application, that the applicant was an Iranian citizen and was so at time of his Protection visa application; given that:
I.Country information indicated that in order for children to hold Iranian citizenship their father must be an Iranian national. The Iranian birth certificates of his children, which listed him as their father, with a National No: [number] established them as Iranian citizens.
II.In order to obtain an Iranian passport, a person must be an Iranian citizen and must satisfy the Iranian authorities of this. Country information indicated that security checks are undertaken at the passport application stage and Iranian passports are issued on the basis of primary source documentation. In order to obtain a passport in Iran, a married woman had to obtain her husband's legal permission, in the form of documents signed in front of a notary public. At this time, the applicant would have had to provide his identity documents, including his identity booklet (shenasnameh) and National Identity Card. These identification documents would also have been provided when applying for the children's passports.
d.    At question 22, he indicated that he did not hold any citizenship and was not a national of any country. However, as he held an Iranian National Number [number] and an Iranian Card Number: [number] in his name – documents issued to citizens of the country in which they have a right to reside – he was an Iranian citizen.
e.    In response to question 42, he stated in his statutory declaration that he left Iran because he was an undocumented stateless person who was considered unlawful in Iran; lacked basic rights, including to further education, work rights, medical, drivers licence or travel; and had a fear of being caught, arrested and detained. In response to questions 43, 44, 45 and 46, he stated in his statutory declaration that if he were to return to Iran, he would be caught at the airport, detained and possibly be beaten, deported or killed by the Government or its agents because he was considered stateless, had no citizenship or identification. However, as the holder of an Iranian National Number and Iranian Card Number, he was an Iranian citizen. His choice to voluntarily return to Iran after being granted a Protection visa and to return to Australia without issue indicated that he did not hold an adverse profile in Iran, as claimed.
Taking into account the matters set out in the notice, the delegate put it to the applicant that he had not complied with s.101(b) of the Act because his claims for refugee status relied upon his claim that he would be persecuted because he was stateless and his status as a stateless person was fundamental to the decision to grant his Protection visa.
As the incorrect information provided in his Protection visa application was material to this determination, it appeared that he may not have engaged Australia's protection obligations and his visa was being considered for cancellation under section 109 of the Act.
The applicant was advised that he could comment on the possible non-compliance and also give a written response as to why his visa should not be cancelled. He was advised he should provide reasons as to why he thought he had complied, or why he had not complied, with section 101 (b). The notice set out the time period within which to provide a response, relevant legislative provisions and a summary of the matters to be considered in relation to a protection visa cancellation.
The delegate also invited the applicant to give reasons as to why the visa should not be cancelled, taking into account the matters in Regulation 2.41 of the Migration Regulations 1994 (the Regulations), on the basis that, notwithstanding his submissions on non-compliance, the delegate may find that he did not comply with Section 101(b) and he should address the relevant discretionary issues.
The applicant’s response
In response to the NOICC, the applicant’s migration agent provided a submission, dated 21 July 2017, essentially disputing that the applicant had provided incorrect information to the Department. Amongst other things, the agent submitted that:
a. There was no inconsistency regarding his name as Persian culture did not recognise the Arabic prefix “Al’ so in Farsi language “[Surname 1] becomes “[Surname 2]”.
b. The applicant knew from his family that his date of birth was [Date 1], which was also listed in his Iranian refugee Green Card. Any errors must have been the result of confusion by departmental interpreters on Christmas Island in converting Persian calendar dates, with which he was most familiar, to Western Gregorian calendar dates.
In a statutory declaration, dated 19 July 2017, the applicant asserted that he had provided correct answers to questions in Form 866 and that the information he provided was true in its entirety. He submitted that:
a.    When his father-in-law arranged identity cards for his children, “the Iranian employee perhaps needed to insert numbers … in the application to facilitate the transaction. These numbers you are referring to might have been inserted in the applications of my two children. However, I confirm that they are not correct or real”. He did not have any previous knowledge of the matter and was no way involved or participated in that.
b.    The fact that he managed to obtain an Iranian visa on his Titre de Voyage travel document issued by Australia from the Iranian Embassy in Canberra was “the strongest evidence” he had. Iran would not grant a foreigner’s visa to him if he was Iranian.
c.     The difference in dates of Iranian documents was a well-known matter because “we depend on the Iranian calendar”.
The following supporting documents were provided with the submission:
·A copy of the applicant’s Australian Titre de Voyage issued [2014] containing an Iranian visa;
·A report from the Immigration and Refugee Board of Canada on Iran: The new format of the shenasnameh (birth certificate), January 2015;
·A copy of DFAT Smart Traveller Advice on Iran dated 8 June 2017.
The Delegate’s Decision
On 20 November 2017, a delegate of the Minister, after considering the prescribed circumstances, decided to cancel the applicant’s visa. The delegate found that the applicant had provided incorrect information in his Protection visa application, that information being, that he was a stateless person. The delegate referred to the fact that in support of her Partner visa application, the applicant’s wife provided documentation indicating that the applicant held Iranian documentation and was not stateless but appeared to be an Iranian citizen and was so at the time of his Protection visa application. His choice to engage with the Iranian authorities, voluntarily travelling to Iran without experiencing any apparent issue also indicated that he did not hold the claimed adverse profile in Iran.

The delegate also noted that, in the event that the applicant’s visa was cancelled, an International Treaties Obligation Assessment (ITOA) would be completed before a decision was made to remove him to his country of origin. Therefore a decision to cancel his visa would not necessarily cause him to be returned in breach of Australia’s non-refoulement obligations under the Refugees Convention. The delegate also noted that the migration legislation provided that the applicant would not be able to make a further application for a Protection visa whilst in the migration zone and could not make any other valid visa application whilst in Australia unless the Minister intervened and lifted the decision bars; and that he would incur Public Interest Criterion 4013 which may be a reason for refusing to grant him certain temporary visas for a period of three years from the visa cancellation. The delegate found that these were the intended consequences for a visa cancelled under this ground. The delegate also considered that, if his Protection visa was cancelled, the applicant would become an unlawful non citizen and liable to be detained under section 189 of the Act. However, she found that this would arise from the lack of a Bridging Visa, rather than the cancellation of the substantive visa.
Application for Review
On 22 November 2017 the applicant applied for a review of the delegate’s decision, a copy of which he provided for the purposes of the review.
On 27 February 2019, the applicant’s migration agent provided a submission in support of the application for review, as well as a statement from the applicant regarding the cancellation of his visa and the following supporting documents:
·Copy of letter from the applicant’s consultant psychiatrist dated [November] 2018 (detailed at paragraph 61);
·Copy of a report from the Immigration and Refugee Board of Canada on Iran: The new format of the shenasnameh (birth certificate), 16 January 2015;
·Copy of DFAT Smart Traveller Advice on Iran dated 8 June 2017
The submission set out the applicant’s migration background and reiterated his explanations as set out in the previous submission of 21 July 2017 (para 26 refers). In his statement the applicant again asserted that all the information he provided to the Department was “absolutely true and correct”. He again stated that his children had acquired Iranian nationality through bribes paid by their Iranian grandfather and that the number of his nationality had been written in to the birth certificates of his children and his marriage contract to ensure that the Iranian authorities did not discover the secret of his children; that his birth date had been wrongly registered upon his arrival in Australia but that he did not know this because he never saw the birth date written in the Gregorian calendar.
With regard to his entry in Iran, the applicant stated:
When I intended to go to Iran, I approached the Iranian embassy. I talked to them in the Persian language because of my weak English. I asked for the visa. They agreed to grant me the visa. They knew well that I was living in Iran as a forcibly displaced person and that I know well the Persian language. l was not under suspicion. Upon my arrival in Iran, they searched my baggage and allowed me to enter without any questioning. You know how much difficult for the Iranian citizen to cross the borders and enter the country through faked papers and in another person's identity. I did not pay any attention to them because I know that I am not Iranian. Despite my fear of death, I did not hesitate at all in entering Iran to see my children who are growing up without me seeing them.
The Hearing
The applicant appeared before the Tribunal on 7 March 2019 to give evidence and present arguments. At the start of the hearing, noting references to his anxiety symptoms and periods of depression in the letter provided from his consultant psychiatrist, the Tribunal confirmed with the applicant that he was fit to give evidence.
The applicant reiterated that all the information he provided to the Department was correct, that he had no citizenship whatsoever and that his children’s grandfather had acquired Iranian citizenship certificates for them because “everything” could be got for bribes in Iran.
The applicant gave vague evidence about his biographical details. He claimed that he did not remember where his family lived after being expelled from Iraq until they were moved to Yazd, when that was or how old he was at the time. He repeatedly said this was because he was a child at the time and illiterate. At one point he also claimed that he could not remember as he had ‘taken tablets’. However, when the Tribunal referred to his earlier confirmation that he was fit to give evidence and suggested that the hearing might be adjourned if he had taken excessive medication, the applicant affirmed that he was able to proceed with the hearing[1]. When the Tribunal drew his attention to the detailed biographical information he had provided in his Protection visa application form, the applicant shifted his evidence, saying it was true but that he could not remember as seven years had passed since he left the camp and his life was devastated. The applicant also claimed that he did not know when he was born because he was illiterate and had never attended school. Asked how old he was, he said he thought he was in his [age range].
[1] The Tribunal notes that, in his comments at the end of the hearing, the applicant’s migration agent suggested that, having heard everything the applicant had said, he believed that the applicant was “not fit” to give evidence. The Tribunal reminded the agent that he had made no comment to this effect during this discussion or at any other time during the hearing.
In a discussion about the information which the Department identified as being incorrect in his Protection visa application, the applicant made the following comments:
a.    Although he was known in Iran as [Given name 1] [Surname 2], the name identified in his wife’s Iranian Birth Certificate (shenasnameh), his “true name” was [Given name 1] [Surname 1] and this was the name he used in Australia. He didn’t remember why he had not decared his Iranian name when asked in his application form, what other other names he had been known by.
b.    Regarding inconsistencies in his date of birth and age as given in his application ([Date 1] and age [Age 1] years) and in his wife's shenasnameh ([Date 2] and age [Age 2] years), he said he did not know his birth date in either the Persian, Arabic or Western calendar because he was illiterate.
c.     His wife’s shenasnameh was genuine because she was an Iranian citizen. He himself did not have a shenasnameh but his father father-in-law had paid bribes to have his Iranian identity card number recorded in his wife’s document because in Iran “you can get absolutely everything through bribes”. Asked why his father-in-law had not obtained a shenasnameh for the applicant as he claimed he had for his children, the applicant said this was because he was not born in Iran, while his children were.
The applicant offered no explanation when asked how his wife was able to obtain a passport without his formal permission and submission of identity documents (shenasnameh and National identity card), as was required according to country information outlined in the Department’s notice (paragraph 23.c.II) and its decision.
In a discussion about his visit to Tehran in April 2015, the applicant said he visited the Iranian Embassy twice to get his visa, which would not have been issued to him if they suspected that he was an Iranian citizen. He also introduced new evidence that when he arrived at Imam Khomeini airport, he was taken aside into a room and asked a lot of questions, including what he was doing in Iran, why he had come and why he sought refuge in Australia? He told them he had come to visit his family and gave them his wife’s number so, when they contacted her she told them he was her husband and they had children together. He was concerned that the authorities might create problems for him, so did not go to Yazd, but stayed in Mashad, where his family came to visit him.
To the Tribunal’s suggestion that the fact that he was able to enter and depart Iran without any difficulties indicated that he was not of interest to Iranian authorities, the applicant said this was because he came legally on Australian papers. He then claimed that the reason he was taken aside for questioning was because he was an Arab and the Iranian authorities were racist.
Post Hearing Submission
At the agent’s request, the Tribunal agreed to an extension of time to provide a written submission after the hearing, which was emailed to the Tribunal on 14 March 2019. In his statement on issues raised at hearing, the applicant reiterated that his wife was an Iranian national and that his children had acquired Iranian identity papers through bribery by their grandfather, which were “not fake”. He referred to his earlier explanation as to why his national identity number was written in them. He again attributed the error in his birth date to its conversion from the Persian Calendar to the Gregorian calendar and said that when he was asked about it during the hearing, he did not know how to convert it from the Persian Calendar to the Gregorian calendar. He said he would be persecuted and liquidated if he returned to Iran because he did not have any nationality or any rights in that country.
At the Tribunal’s request, the applicant also provided his original Titre de Voyage identity document which he did not present at hearing.
Conclusion
The key determinant whereby the applicant was granted a Protection visa was his claim that he would be persecuted because he was stateless in Iran, a claim he maintained throughout his review. This claim was seriously undermined by evidence in documents submitted by his wife in the context of her Partner visa application, that the applicant had an Iranian National Number [number] and an Iranian Card Number [number] in his name. This indicated that he was an Iranian citizen.
The Tribunal finds unpersuasive the applicant’s claim at hearing that the applicant did not actually have an Iranian shenasnameh or identity card, but that his father-in-law had arranged for the numbers to be written into his wife’s and children’s shenasnameh through bribery. As discussed with the applicant at hearing, country information noted in the Department’s notice (paragraph 23.c.II) and decision indicates that in order to obtain an passport in Iran, a married woman has to obtain her husband's legal permission, in the form of documents signed in front of a notary public. At this time, the applicant would have had to provide his identity documents including identity booklet (shenasnameh) and National Identity Card. The applicant did not offer any explanation of how his wife managed to get a passport without this. The Tribunal notes that neither did the applicant address this issue when raised with him by the Department in its notice and decision.
As discussed with the applicant, the Tribunal is also concerned at the inconsistencies in the basic information about himself, including his name and date of birth, provided in his Protection visa application form and in his wife’s shenasnameh. It considers evasive the applicant’s failure to have recorded the surname by which he was known in Iran in his Protection visa form and the evidence about his date of birth over the course of his review confused and disingenuous. Initially his agent submitted that the applicant knew from his family that his date of birth was [Date 1], which was also listed in his Iranian refugee Green Card. This was the date given in his Protection visa application form. The agent attributed “any errors” to confusion by departmental interpreters in converting Persian calendar dates, with which the applicant was most familiar, to the Western Gregorian calendar. The applicant also referred at various instances to his familiarity with the Persian calendar. However when asked at hearing what his birthdate was in the Persian calendar, the applicant said he did not remember because he was illiterate. Yet in his post-hearing submission, he claimed that when asked about it during the hearing, he did not know how to convert it from the Persian Calendar to the Gregorian calendar.
The Tribunal’s concerns about the credibility of the applicant’s evidence are compounded by inconsistencies regarding his experience at Tehran airport on his return visit. In his submission of 27 February 2019, the applicant stated that, upon his arrival, the authorities searched his baggage and allowed him to enter without any questioning (paragraph 36). By contrast, he told the Tribunal at the end of the hearing that he was taken into a room and “asked a lot of questions, including what he was doing in Iran, why he had come and why he sought refuge in Australia” and then contacted his wife (paragraph 42). The applicant subsequently also introduced the claim that the reason he was taken aside for questioning was because he was an Arab and the Iranian authorities were racist. The Tribunal considers that these opportunistic embellishments of his evidence undermine the Tribunal’s confidence in the applicant’s general truthfulness. The Tribunal is not satisfied that the applicant was taken away for interrogation at Tehran airport for any reason claimed.
The Tribunal has considered the applicant’s claim at paragraph 29.b that “the strongest evidence” he had was that he managed to obtain an Iranian visa on his Australian Titre de Voyage travel document from the Iranian Embassy in Canberra and that Iran would not have granted him a foreigner’s visa if he was Iranian. In the Tribunal’s view, the Embassy would have no basis to refuse to grant a tourist visa to a person presenting with an Australian issued travel document.
The Tribunal has considered whether the applicant’s mental health may have had an impact on his ability to give consistent and clear evidence but discounted this in light of its view that the applicant was not a truthful and credible witness. It also notes that there is no suggestion in his psychiatrist’s letter that his mental condition might affect the applicant’s memory or his ability to give evidence. Considering all the evidence before it, the Tribunal finds that the applicant is not stateless, as claimed, but a citizen of Iran. It therefore finds that the applicant has not complied with s.101(b) of the Act because he has provided incorrect answers to questions in his Protection visa application.
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?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the 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.
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
The Tribunal is satisfied that the correct information is that the applicant is an Iranian citizen and not stateless. The applicant insisted that he was stateless and had no citizenship whatsoever. However, for the reasons given above the Tribunal does not accept that the applicant has told the truth and finds that the correct information is that at all material times he was an Iranian citizen and not stateless as he has claimed.
The content of the genuine document
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).
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 decision to grant the applicant a protection visa was based wholly on the incorrect information.
The circumstances in which the non-compliance occurred
The applicant came to Australia as an unauthorised maritime arrival and was granted a protection visa by the Departmental delegate on the basis that he feared serious harm if he returned to Iran.
The applicant does not concede that he has provided incorrect information. He continues to claim that he fears serious harm in Iran as a stateless Arab.
The present circumstances of the visa holder
The applicant has been resident in Australia since 2010. According to a letter from his consultant psychiatrist, Dr [B], the applicant lives alone in a [dwelling], is unemployed and receives a Disability Support Pension. He suffers from anxiety symptoms ([specified]) and periods of depression but has not been compliant with medication. He has poor independent living skills, limited English and is socially isolated. He is distressed about being away from his family and his current visa situation and anxious about his future. He lost his visa when he travelled to Iran but could not tolerate being away from his family.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant has not conceded that he has provided incorrect answers in his application for a protection visa.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other known instances of non-compliance by the applicant.
The time that has elapsed since the non-compliance
The relevant non-compliance took place when the applicant completed his application for a Protection visa in August 2011. Eight years have elapsed since the non-compliance took place.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal that the applicant has breached Australian law in any aspect.
Any contribution made by the holder to the community
There is no information before the Tribunal that the applicant is making any contribution to the community.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements.
For the reasons given above the Tribunal has found the applicant is not stateless but an Iranian citizen. As such, the Tribunal does not accept that his removal from Australia would be in breach of Australia’s obligations under the relevant international agreements because he is stateless.

After being granted the Protection visa, the application voluntarily returned to Iran on his Australian Titre de Voyage without experiencing any adverse action from the Iranian authorities and subsequently returned to Australia without issue, indicating that he does not hold the adverse profile claimed in his protection visa application.
According to country information, the Arab community in Iran has long expressed concerns about economic marginalization and discrimination in education, employment, politics and culture. In 2005, violent protests broke out in the applicant’s hometown of Ahvaz in response to which, authorities imprisoned large numbers of activists who they claimed were separatists responsible for terrorist attacks against civilians. Since 2005, authorities have executed at least 37 Ahwazi Arabs following trials that international human rights organisations regard as unfair. In April 2015, authorities arrested large numbers of Ahwazi Arabs, mainly prominent activists, in the lead-up to the tenth anniversary of the 2005 protests, including up to 100 people (among whom were several children) in Ahvaz and its surrounding district.[2]
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report Iran, 7 June 2018, p17.
In this context, the Tribunal discussed with the applicant at hearing whether, in the event that the Tribunal found that he was not stateless, but an Iranian citizen of Arab ethnicity, he would face serious harm if returned to Iran. The applicant responded that he could not return to Iran because his brother-in-law was threatening to kill him. He feared he would be stopped and taken by authorities at the airport. He had been in Australia for 8 years and would prefer to hang himself here than return to Iran.
Asked if he had experienced harm as an Arab in Iran in the past, the applicant said he was beaten up by the Iranian police a long time ago when travelling from Yazd. It only happened once because he avoided the police whenever he saw them and was in hiding most of the time. He said that, although he sometimes encouraged stateless Arabs to claim their rights, he was never involved in any Arab organisations or supporting Arab causes in Iran. Given this profile, the Tribunal is not satisfied that the applicant would be at risk of serious or significant harm in Iran for reasons of his Arab ethnicity. The Tribunal has not accepted above the applicant’s claim (paragraph 43) that he was taken away for interrogation at the airport because he was an Arab and Iranians were racist. Nor does the Tribunal accept the applicant’s late claim that his brother-in-law was threatening to kill him as he provided no evidence to support this claim, including in his post hearing submission. Further, the Tribunal notes that self-inflicted harm does not constitute significant harm for the purpose of complementary protection.
The Tribunal notes that the applicant voluntarily returned to Iran, spent a month in that country and was not harmed when entering or exiting the country. The Tribunal considers the applicant’s willingness to return to Iran is inconsistent with his clams for protection and demonstrates he does not have any subjective fear of harm returning to Iran.
The Tribunal notes that, in the event that the application’s visa was cancelled, an ITOA would be completed before a decision was made to remove him to his country of origin. Therefore a decision to cancel his visa would not necessarily cause him to be returned in breach of Australia’s non-refoulement obligations under the Refugees Convention.
Other matters
The Tribunal finds that there are no persons in Australia whose visas would or may be cancelled under section 140 of the Act as a result of the cancellation of the applicant’s visa, nor are there any children in Australia whose interests could be affected by the cancellation. The applicant’s evidence is that his wife and children are all outside Australia.
The Tribunal accepts as a consequence of the cancellation of his visa the applicant will become an unlawful non-citizen and that he will be liable to be detained and removed from Australia. However, given the Tribunal’s finding that he is an Iranian citizen, the Tribunal considers that he will be able to return to Iran. The Tribunal does not accept, therefore, that indefinite detention is a likely consequence of the cancellation decision.
The Tribunal notes that applicant did not make any submissions regarding the additional policy considerations as set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, including the consequences of cancelling the visa, international obligations and any other relevant matters.
Conclusion
For the reasons discussed above, the Tribunal finds that the applicant provided incorrect information regarding his citizenship when he sought protection in Australia and has continued to do so by asserting that he is stateless. The Tribunal has given careful consideration to all of the relevant circumstances. It has noted that the applicant has now spent a period of some nine years in Australia and that there is no evidence that, since his non-compliance, there have been any breaches of the law or other instances of non-compliance by the applicant. However, the Tribunal finds that the seriousness of the applicant’s actions to deliberately provide incorrect information in the application, without which he would not have been granted a permanent visa, outweigh these limited factors in favour of not cancelling the visa
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Mara Moustafine
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.

[2019] AATA 6439

5 September 2019

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