1730275 (Refugee)
[2020] AATA 402
•13 February 2020
1730275 (Refugee) [2020] AATA 402 (13 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1730275
COUNTRY OF REFERENCE: Iran
MEMBER:Christine Cody
DATE:13 February 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 13 February 2020 at 9:09am
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – religion – conversion to Christianity – harassment and threats by Basij and police – left through airport on own passport – incorrect information, based on subsequent actions – engagement with authorities to renew passport – voluntary return through airport and two-month stay to visit mother with no harm – mother’s physical and mental health – inconsistent evidence – discretion to cancel visa – factors for and against cancellation – church membership and activity in Australia – inter-faith marriage with Australian citizen – wife’s religion not officially recognised and subject to persecution in Iran – their child possibly an Australian citizen – best interests of the child – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 46A(2), 99, 101(b), 107, 109(1)
CASES
MIAC v Khadgi (2010) 190 FCR 248Zhao v MIMA [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
APPLICATION FOR REVIEW – STATEMENT OF DECISION AND REASONS
BACKGROUND
This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant for review is a citizen of Iran and is [age] years old. He initially travelled to Australia as the holder of a [temporary visa] [in] May 2009 and then departed [in] August 2009. [In] September 2010 he arrived in Australia on a Suspected Illegal Entry Vessel (SIEV). On 29 September 2010 he was interviewed as part of the Refugee Status Authority (RSA) process and he completed a Refugee Status assessment form (‘the RSA form’) with a statement of claims dated 26 September 2010 (‘the RSA statement’). On 21 January 2011 the delegate refused the application.
He lodged an application for review to the Independent Merits Review (IMR) on 3 February 2011, providing a further statement on 13 May 2011 (‘IMR statement’).
On 7 November 2011 the refusal decision was overturned as the delegate found that the visa holder met the criterion for a protection visa as set out in the Act and recommended that he be recognised as a person to whom Australia has protection obligations. The IMR delegate was satisfied the visa holder met the definition of a Refugee within the meaning of the Refugees Convention; that is, he had a ‘well-founded’ fear of personal harm being capture, imprisonment, physical assault and possible death due to his conversion to Christianity and the recommendation of that religion to his friends, should he return to Iran.
As a result, based on this assessment, the Minister exercised his power under s.46A(2) of the Act to allow the visa holder to lodge a protection visa application.
On 2 February 2012 the visa holder lodged an application for a Protection (Class XA) (Subclass 866) visa (‘866 application form’).
The visa holder’s Protection (Class XA) (Subclass 866) visa was subsequently granted by the Department on 8 February 2012[1] on the basis of the information he provided in his visa application, 866 Form – Application for a Protection (Class XA) visa as well as the information he provided during the interview dated 29 September 2010, and the statement dated 13 May 2011 that the visa holder provided at the IMR[2].
[1] As pointed out in the agent’s submissions to the Tribunal, the delegate’s decision record cancelling the visa incorrectly referred to the grant date as 9 July 2012 in the body of the document (paragraph 27), although the front page of the decision record specifying the details of the visa being cancelled stated that the visa grant date was 8 February 2012.
[2] According to the delegate’s decision record.
By way of a decision dated 1 December 2017 the applicant’s protection visa, which had been granted on 8 February 2012, was cancelled on the basis of the applicant having given incorrect information.
The applicant lodged an application for review of the delegate’s decision to the Tribunal on 1 December 2017. He was represented by his registered migration agent. The agent provided submissions to the Tribunal on 28 March 2019 stating that the grounds for cancellation have not been made out and/or the grounds for not cancelling outweigh the grounds for cancelling. The Tribunal held a hearing and received submissions before and after the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues for decision
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.
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.
While it is well established that civil concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in administrative decision-making, in cases where the existence of certain facts form the basis of the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision-maker must be satisfied about the existence of the facts before exercising the power.
Under the procedure for cancellation established by s.109, the visa holder is given the opportunity to respond to a notice issued under s.107 and the decision-maker must have regard to this response in deciding whether there has been non-compliance and whether to cancel the visa. However, this opportunity to respond does not change the nature of the decision-making process. The obligation is on the decision-maker to be satisfied there has been non-compliance, not on the former visa holder to establish that the facts or grounds do not exist. The authority for this proposition is Zhao v MIMA, where the Federal Court opined as follows:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut[3].
[3] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
While Zhao was concerned with notification of proposed cancellation under s.119, these comments are equally applicable to the present circumstances.
The issues before the Tribunal for determination are the validity of the s.107 notice, whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The relevant law is set out in Annexure A.
Files before the Tribunal
The Tribunal has received a number of Departmental files relating to the visa cancellation, those files being:
· Protection Visa Cancellation file [number] which contains documents including the Notice of Intention to Consider Cancellation under s.109 of the Act dated 26 July 2017 (NOICC); the applicant’s response dated 4 August 2017; a number of untranslated documents; and the decision record dated 1 December 2017 providing the reasons for the cancellation of his protection visa granted on 8 February 2012 (Notification of cancellation under s.109 of the Act).
· Protection Visa file [number] which contains documents including a copy of the applicant’s unauthorised arrival (Christmas Island) entry interview of 13 September 2010; a letter from the agent dated 26 September 2010 attaching a Request for RSA and Statement of Claims dated 26 September 2010 and Form 80 (Personal Particulars) dated 26 September 2010; supporting documentation including emails from the church, a copy of his passport issued [2005], expiring [2010]; the delegate’s decision record and notification letter dated 21 January 2011; the IMR decision of 7 November 2011 finding that the applicant meets the criteria of s.36(2) of the Act, and the protection visa application forms in 2012 provided by the applicant to the Department after the IMR finding.
The Tribunal also has the Tribunal file, and has taken into account the evidence received at hearing and submissions received.
Validity of the notice – Did the notice comply with the requirements in s.107?
In the present case, the applicant raised the question as to whether the notice issued by the Minister’s delegate complied with s.107 of the Act.This involves a consideration of the relevant requirements in s.107, including whether the Minister reached the relevant state of mind that the applicant had not complied with one or more of the relevant provisions; whether the notice included particulars of the possible non-compliance; and/or whether the other statutory requirements in s.107 were met.
The contents of the Notice of Intention to Consider Cancellation under s.109 of the Act
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act. Section 101 relevantly provides,
Section 101 Visa 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.
The NOICC noted that the operation of s.99 of the Act meant that the information given on behalf of a person to the Minister, an officer, an authorised system, or a person, the Tribunal, or the immigration assessment authority reviewing the application for a visa, is considered to be information given in the visa application, whether it is orally or in writing or at an interview or otherwise.
The non-compliance was identified and particularised in the NOICC in the following respects.
Information provided by the applicant
The 866 application form: On 2 February 2012 the applicant lodged an application for a protection visa Subclass 866 and provided an 866 – Form - Application for a Protection (Class XA) (Subclass 866) visa. Part C of that Form shows that at question 41 of the form which asks ‘I am seeking protection in Australia so that I do not have to go back to’ he answered ‘Iran’.
In answering the following questions on his Form 866C, the applicant stated ‘See statement attached to the RSA application’:
· Question 42 of the form which asks why he left Iran,
· Question 43 which asks ‘what do you fear may happen to you if you go back to that country?’,
· Question 44 which asks ‘who do you think may harm/mistreat you if you go back?’,
· Question 45 which asks ‘why do you think this will happen to you if you go back?’, and
· Question 46 which asks ‘do you think the authorities of that country can and will protect you if you go back? If not, why not?’
At question 47 when asked: ‘When did you leave your home country?’ he stated: ‘14 August 2010’.
On 2 February 2012 he signed in response to the request in question 65 in Part C of the 866 application form - ‘Declaration’ when asked to declare the following:
The information I have supplied on or with this Part C of the Form 866 is complete, correct and up to date in every detail.
I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.
And I make this solemn declaration by virtue of the Statutory Declaration Act 1959, and subject to the penalties provided by the Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.The RSA statement: The ‘statement attached to the RSA application’ was that completed during an interview conducted by a Departmental officer on 29 September 2010 when the applicant provided the following information in a Refugee Status Assessment (RSA) form with a statement of claims, which included:
The country of which I fear returning: I fear returning to Iran
Why I left that country: I left Iran due to the fear of being persecuted for my religion; Christianity.
[In] August 2010 I was travelling back to home from work. I stopped at my University to get my original Diploma Certificate. I saw a friend of mine called [Mr A]. He invited me to come and stay over at his house. Another friend called [Mr B] was at [Mr A]’s house. There was also another man called [Mr C] whom I have never seen before. He was [Mr B] and [Mr A]’s roommate from Uni.
We started to talk in general and they wanted me to speak about my trip to Australia in May to August 2009. I told them a lot of things about Australia and what I have seen. I also told them about Christianity and the people and the Church I visited in [City 1]. After a couple of minutes I told them I have converted to Christianity. I told them about my coming back to Iran and told them that I went to the Church in Shiraz. I also told them how I was confronted by the Basij Officer outside the church. The Basij took me to their station. They questioned me about the reason I was outside the Church. I told them I wanted to speak to the church leader about marriage. The Basij took my National Id and wrote the details down and told me never to come back to this Church. I was telling this story to my friends at [Mr A]'s home...
[Mr B] was keen to know about Christianity and I gave him a Bible which to read. I told him to keep it with him and I would pick it up from him next time I pass going home from work. The next day I went back to the university. -
I was in Shiraz and [Mr A] called me and said that the Police had taken [Mr B]. [Mr A] then said he will go to the Police to find out what happened to [Mr B]. After a couple of hours I heard nothing. I then called [Mr A] and his phone was switched off. I also called [Mr B] and his was off too.
After this I called another friend called [Mr D] and told him what happened. I asked him if he can go to the Police Station and find out about what happened to my other friends. Two hours later [Mr D] called me back. He said the Police told him that they were charged for spreading Christianity. I understood what had happened, I gave them my Bible and my nickname was written on it. I told the story to my father. My father said that I am in great danger I have to run away and go into hiding.
I then bought a ticket for [Country 1] and stayed over at my sister's home for 2 days. I then left for [Country 1] via [Country 2] [in] August 2010. In [Country 2] I tried to contact [Mr B] and [Mr A]. Their phones were off. I renewed my passport as it was close to expiry.
I phoned my father and he told me not to come back to Iran and hung up the phone. He then sent me an email I saying that the Police are looking for me and had visited my father's house. My father suspected his phone was tapped and did not want to have a long conversation with me over the phone. My father also told me that the Police took a statement off him and that he had to commit himself to report to the Police when I return home. He also told me not to come home as I will be imprisoned.
What do you fear may happen to you if you return to that country?
I will be arrested at the airport and risk being executed. It is against Islamic Law to change your religion from Islam to Christianity and to propagate Christianity in Iran. The punishment for that is execution. I have given my Bible to my friend [Mr A], my name is in it and also the name of the Minister from [City 1] Church who gave it to me. The Police have it and are looking for me. I fear that I will face execution should I return
Who do you think may harm/mistreat you if you go back?
The Islamic Republic of Iran will not protect me but will prosecute me.
The IMR statement: the applicant addressed a number of issues raised in the RSA interview and provided the following information:
· That he did discuss Christianity with your friends.
· That he was known to his friends by a nickname and that was the name in the bible.
· That his father had made enquiries and established that his name was on a blacklist at the airport and he fears he would be arrested on arrival.
As noted in paragraph 4 above, on 7 November 2011 the IMR delegate found that the applicant met the criterion for a protection visa as set out in the Act and recommended that the applicant be recognised as a person to whom Australia has protection obligations.
Basis for grant of Protection (Class XA) (Subclass 866) visa
It was stated in the notice that the visa was subsequently granted by the Department on the basis of the information he provided in his 866 application form, as well as the information which he provided during his interview dated 29 September 2010, and the IMR statement.
Subsequent actions by the applicant
The NOICC stated that it came to the Department’s attention that the applicant had returned to Iran after the grant of the protection visa. The particulars were provided as follows:
·[In] 2013 the applicant was issued with Titre de Voyage [number] by the Australian Government.
·[In] August 2013 the applicant departed Australia and re-entered [in] October 2013 on Titre de Voyage [number]. On both the outgoing and incoming passenger cards the applicant indicated he would spend most of his time abroad in [Country 2]. The total amount of time spent offshore was approximately two months.
·[In] July 2014 the applicant departed Australia on Titre de voyage [number]. The outgoing passenger card which he completed indicated the country where he would spend the most time abroad was Iran for two months for a holiday.
·The applicant re-entered Australia [in] September 2014 using Titre de Voyage [number]. The incoming passenger card which he completed upon re-entering Australia stated the country where he spent most time abroad was Iran. The total amount of time spent offshore was approximately two months.
Specifics of incorrect information provided, based on subsequent actions
In the NOICC, the delegate put to the applicant that his answers in his 866 application form which stated his fear of being persecuted in Iran due to his conversion to Christianity and the recommendation of that religion to his friends, and that he would be persecuted and executed if he was to return to Iran, were incorrect, and he had not complied with s.101(b) of the Act. Particulars of specific incorrect information were provided as follows:
· In answering Question 41 of Part C of the 866 application form: ‘I am seeking protection in Australia so that I do not have to go back to?’ the applicant had answered: ‘Iran’. The delegate considered this to be incorrect as he had spent at least two months in Iran after the grant of his protection visa, without apparent harm or impediment. Returning to Iran voluntarily indicates that he does not hold the adverse profile as claimed in his protection visa application.
· In answering Question 42 ‘Why did you leave that country?’ the applicant claimed that he would be persecuted because of his religion; Christianity. He further claimed that his father told him that he was in great danger, that the police were looking for him and he would be imprisoned if he returned home. The delegate considered this to be incorrect as he had voluntarily returned to Iran passing through Iranian immigration and spent at least two months in Iran, since the grant of his protection visa without being arrested or harmed and as such the delegate considered that he was not of interest to the Iranian authorities. Furthermore the delegate considered that he was not of interest to the Iranian authorities as he did not hold the adverse profile as claimed at the time of application, and grant, of his protection visa.
· In answering question 43 ‘What do you fear may happen to you, if you go back to that country?’ the applicant claimed that he would be arrested at the airport and risk being executed. He further claimed that converting from Islam to Christianity and propagating Christianity in Iran was against the law, the punishment for which was execution and that he feared execution if he returned to Iran. The delegate considered this to be incorrect as he voluntarily returned to Iran passing through Iranian immigration and remained in Iran for two months, without apparent harm or impediment. The delegate considered that two months is a reasonably long duration to return to a country where he claimed to face risk of execution by the Iranian authorities, specifically his fear of being arrested at the airport where he arrived and departed from without incident. Again, the delegate considers that he does not hold an adverse profile and was not of interest to the Iranian authorities as claimed in his protection visa application.
· In answering question 44 ‘Who do you think may harm/mistreat you if you go back?’ the applicant claimed that Iran would not protect him but in fact prosecute him. The delegate considered this to be incorrect as he voluntarily returned to Iran, spent two months in Iran and departed Iran, without apparent harm or impediment. As such, the delegate considered that he does not hold an adverse profile of interest to the Iranian authorities and did not hold this profile as claimed at the time of his protection visa application.
· In answering question 45 ‘Why do you think this will happen to you if you go back?’ the applicant claimed that he would be persecuted because of his religion, Christianity, and that the police were looking for him and he would be imprisoned if he returned home. He further claimed that converting from Islam to Christianity and propagating Christianity in Iran was against the law, the punishment for which was execution and that he feared being arrested at the airport and would face execution if he returned to Iran. The delegate considered this to be incorrect as he voluntarily returned and went through Iranian immigration thus alerting them to his presence in Iran. He remained in Iran for two months and then departed Iran without arrest or harm which is contradictory to his claims. The delegate considered that returning to Iran voluntarily indicates that he does not have a fear of returning to and being arrested and executed in Iran as claimed in his Protection (Class XA) (Subclass 866) visa application.
· In answering question 46 ‘Do you think the authorities of that country can and will protect you if you go back? If not, why not?’ the applicant claimed that the Islamic Republic of Iran would not protect him but in fact prosecute him. The delegate considered this to be incorrect as he has voluntarily returned to Iran since the grant of his protection visa. He has been able to return, reside in and depart Iran, without any harm or impediment. On the basis of this the delegate considered that he does not hold an adverse profile with the Iranian authorities and is therefore afforded the same protection of the Iranian authorities as per any Iranian citizen.
· The signed declaration at question 65 of the Form was incorrect because of the incorrect answers provided to questions 41-46 in Part C of the 866 application form.
The applicant’s submissions on the validity of the s.107 notice
In the agent’s submissions dated 28 March 2019 it was submitted that there is a question as to whether the notice complied with s.107 in two respects: namely, whether the delegate had the necessary state of mind to issue the notice and whether there were sufficient particulars in the notice to fairly inform the applicant of the basis upon which the cancellation is being considered. Those submissions are considered below, after a consideration of the applicant’s explanations.
The applicant’s Response to NOICC
The applicant was not represented by an agent when he provided a response to the notice. He stated that he didn’t lie, he took a risk in going to Iran and he believes he complied with s.101(b). In summary he said:
·I have never lied to Australian authorities, whatever I told the Department when I was in the detention centre was the truth.
·I did go to Iran but it wasn’t for a holiday.
·When I fled from Iran my mother became worried about me, after a year or two she became sick because she was constantly wondering if she would ever see me again. She lost her appetite and was not eating enough.
·She was [an Occupation 1] at a [Workplace]. She developed [Medical conditions] and the [Employer] gave her early retirement.
·I was afraid that I might not see my mother again so I asked my father to find someone to help me to get back to Iran to visit her. He located someone in Tehran International Airport who could help me to pass the gates.
·My father paid him and he helped me to pass the gate upon entering and departing the country.
·I contacted the Department to explain my situation and ask if I could return to Iran. I was advised to contact the immigration centre, but I had already decided to take the risk of returning to Iran to visit my mother.
·When I was in Iran I stayed in my hotel room and tried not to go to public places. I didn’t even go to my father’s home nor visit any relatives. I just spent my time with my mother.
·She got much better after seeing me and is no longer on medication for mental health issues. She is now able to travel and we intend to meet each other in a third country.
The following attachments were included in the response to the NOICC:
· Doctors’ certificates for the visa holder’s mother (in Farsi)
· Certificate from mother’s psychotherapist (in Farsi).
Did the decision-maker reach the necessary state of mind?
In the agent’s submissions dated 28 March 2019, it was submitted that the s.107 notice was issued by the delegate on the basis of a finding of non-compliance with s.101 because the applicant could enter and exit Iran in 2014 and managed to spend at least two months in Iran approximately 18 months after the grant of his protection visa without apparent harm or arrest. It was submitted that the applicant provided detailed reasoning as to how and why he entered and exited Iran in 2014 in his Response to the NOICC (set out above): he confirmed that his fear of harm persecution upon his return to Iran for the reasons he provided in his protection visa application were correct at the time of application and have been correct until now, and his protection visa was granted because of this well-founded fear of persecution. He has explained that he was helped and instructed by a person working at Tehran airport with which his father had an arrangement for entering and exiting Iran in 2014. The applicant had already tried to see his mother in [Country 2] in 2013, staying there for two months and his mother was meant to come and see him there. After this attempt her health got worse and she could not travel anymore. He considered he had no choice and he took all precautions that he could manage in going to Iran.
It was suggested that the applicant’s name might not have been on the airport watchlist when he entered and exited Iran in 2014, and he may not have been the priority of the Iranian authorities in 2014. It was submitted that even so, his ability to enter and exit Iran in 2014 does not indicate that he provided incorrect information about his fear of persecution upon return to Iran at the time of his visa application.
The agent referred to the Departmental Procedures Advice Manual PAM3 (general visa cancellation powers): there are certain circumstances in which it would be inappropriate to issue a notice, including if the available evidence does not substantiate the ground for cancellation. It was suggested that in this case, the s.107 notice was issued based on the ‘assumption’ by the delegate that the ability of the applicant to enter, stay and exit Iran without harm in 2014, could indicate that the applicant could enter and stay in Iran at the time of his protection visa application and thereafter, and therefore the delegate surmised that the applicant provided incorrect information in his visa application. The evidence relied upon by the delegate however was not sufficient for the delegate to consider that there has been non-compliance.
The Tribunal has carefully considered the submissions and evidence. It is satisfied that the delegate reached the necessary state of mind to issue the NOICC because the delegate expressly states that he has formed the view that there has been non-compliance and there is some basis for his findings. The delegate based the NOICC on concerns about the return of the applicant to Iran within 18 months of the grant of his protection visa, given that it formed part of the applicant claims that he was on an airport watch list, the police were looking for him and he would be imprisoned if he returned home. He further claimed that he feared being arrested at the airport and facing execution if he returned to Iran (having converted from Islam to Christianity and propagated Christianity in Iran). The Tribunal accepts that his return, in the circumstances of his protection visa application, raised valid questions as to whether the applicant had provided incorrect information during the process in relation to which he obtained a protection visa. The Tribunal therefore accepts that the delegate reached the required state of mind.
Accordingly, in the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act.
Did the s.107 notice provide sufficient particulars?
The second validity question that arises is whether the NOICC complied with the requirements of s.107 of the Act by providing sufficient particulars in the notice to fairly inform the applicant of the basis upon which the cancellation was being considered.
In the agent’s letter of 28 March 2019, it was submitted that the s.107 notice was insufficient to fairly inform the applicant of the basis upon which the cancellation was being considered (reference was made to Zhao). It was stated that given the claims have previously been found to give rise to an objectively well-founded fear of harm, and although there must be sufficient information provided to inform the visa holder of the basis for the cancellation to allow him to make submissions, the notice did not set out particulars of why the delegate considered the answers to specific questions of the applicant’s protection visa application were incorrect. It was submitted that because the applicant was able to enter, stay and exit Iran in 2014, this should not raise any concern about the legitimacy of previous answers. It was stated that the fact that he could enter, stay and exit Iran in 2014 without facing any issue, even without his explanation, might raise if a concern about his fear of persecution in 2014 but not at the time of his application for a protection visa.
The Tribunal is not prepared to accept the submission. It notes that the applicant’s claim to fear persecution was not temporally limited to 2012, and the ‘well-founded fear’ test is one which has regard to the chance of harm in the reasonably foreseeable future. The applicant’s fear of persecution was based in part on his assertion that he was on a watch list, and the Tribunal considers that claim to raise a concern as to why he would attempt to return to Iran, and his ability to enter, remain and then exit Iran in 2014. As discussed with the applicant at hearing, it considers the submission that although he was told he was on a watch list in 2012, he may not have been on a watch list in 2014, to be speculative. The Tribunal does not accept that the applicant was not provided with sufficient particulars in order to understand the case against him, namely that he had provided incorrect information during the course of his protection visa application proceedings. Further, the applicant’s response clearly indicates that he understood the notice and the incorrect information that was being put to him.
The Tribunal accepts that there were sufficient particulars of the incorrect information provided by the applicant in his protection visa application. The applicant was informed that his travel to, two months spent in, and exit from, Iran, without apparent harm or impediment, indicated that he had given incorrect information in his protection visa application, namely that he held an adverse profile of interest to the Iranian authorities and was on a watch list and was liable to arrest and execution if he returned to Iran.
The other statutory requirements for the issue of the s.107 notice
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 s.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 r.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 s.101(b) and he should address the relevant discretionary issues.
In the present matter, the Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements and was valid.
Was there non-compliance as described in the s.107 notice?
As noted above, the applicant responded to the NOICC explaining the reasons for, and the circumstances surrounding, his return. He provided some documentation in support to the Department.
The delegate considered the matters before him and found that there had been non-compliance in the way described in the notice under s.101(b). The delegate stated that:
As outlined in Part B of this decision record, it has been ascertained the visa holder provided incorrect information in response to several questions within his application for his Protection class (XA) (subclass 866) visa application lodged on 02 February 2012, in particular to questions 41 – 46 & 65 in part C of Form 866, in which the visa holder claimed he had fear of being persecuted, harmed, mistreated and executed if he returned to Iran because of his claimed status of converting from Islam to Christianity and to propagate Christianity in Iran.
The evidence indicates the visa holder did not have a fear of being persecuted, harmed, mistreated and executed as claimed when he submitted his 866 Form – Application for a Protection (Class XA) visa application as the visa holder has been able to enter Iran through Iranian immigration, engage with the Iranian authorities, reside in Iran, for at least 2 months and depart Iran voluntarily, without any harm or impediment. According to publicly available information[4] there are strict layers of security for entry and exit procedures at Iranian airports. There are a number of checkpoints for travel document, ticket and baggage examination. Airport systems are set up to indicate whether a passenger has any unsettled matters with the Iranian authorities. I consider that the visa holder would have been unable to enter and exit Iran without any harm or impediment if he was on a black list at the airport as claimed in his protection visa application.
I am satisfied the visa holder provided incorrect information in his application for his Protection class (XA) (subclass 866) visa.
[4] >
The applicant provided additional information and documents to the Tribunal to substantiate the matters relating to his return, as well as oral and pre and post hearing written submissions from his agent, and he attended a hearing, to which he was accompanied by his new wife (and agent).
It was submitted that the obligation to establish the existence of facts which ground the exercise of statutory power to cancel is on the Tribunal (upon review) and it is not the obligation of the visa holder to establish that the visa should not be cancelled. It was claimed in the agent’s submissions that the applicant was in a bad mental situation, he thought he would see his mother ‘for the last time’, he was assured by a person that he could enter and exit in Iran, and he was careful when he was in Iran not to go to addresses that would be known by the Iranian authorities.
It was asserted that the fact that the applicant was not harmed when he returned to Iran does not prove that the events he described when he was in Iran from August 2009 (when he returned to Iran after his first visit to Australia) until August 2010 (when he left Iran after the incidents described in the protection visa application and came to Australia as an IMA [in] September 2010) are not true. While the Tribunal accepts this submission is theoretically possible, it is not prepared to accept that this is wholly applicable to this particular applicant.
In this particular case, the Tribunal considers that the evidence before it supports the following: that the applicant is someone who had, in the past come to the attention of the authorities (he had been arrested for being in proximity to a girl), and he was not a devoted Muslim when living in Iran. It accepts that he became interested in Christianity when first visiting Australia, and that shortly after he had returned to Iran he then decided to leave again and to return to Australia. He did so by flying to [Country 1], [Country 2], then taking a boat to Australia. It does not accept that the evidence supports his specific claims of adverse attention/harm after he had returned to Iran having visited Australia and that this was the reason he left again for Australia. It does not accept that the applicant was told by his father that he needed to leave nor that, after he left, he was told by his father (or had any reason to believe) that he was on a blacklist. It follows that the applicant’s claims at the time of his protection visa application, to the effect that he was the subject of specific adverse attention including having been placed on the blacklist, that he was being sought for having promoted Christianity and sharing the Bible and that he would be arrested at the airport and executed, were incorrect information. In this regard the Tribunal notes as follows.
Christian encounters while first visiting Australia
The Tribunal accepts that the applicant did have encounters with a pastor when he first came to Australia [and] that he was given a Bible. This is confirmed by the letter from Rev Dr [E], [a church in] Australia, dated [September] 2010, who states that while the applicant was visiting his uncle in Australia he met the applicant twice to discuss Christianity; he sought to understand and convert to Christianity.
The applicant’s claim to have taken a Bible back with him, and to have lent the Bible to his friend [Mr B] after he had returned to Iran, his friend [Mr B]’s disappearance and the police actively seeking out the applicant
Although Rev Dr [E] states that the applicant took the Bible back to Iran with him, it appears that the only way he would know this would be from what the applicant told him. The Tribunal had concerns with this claim. The applicant had claimed in his Christmas Island interview[5] that he had been warned that he would be in trouble if the Bible was found in his luggage, which indicates that he made a considered (risky) decision to take the Bible back with him to Iran. When the Tribunal however asked him about his decision to take the Bible back to Iran, indicating that it appeared a very risky thing to do, his initial responses did not suggest that he had thought about the risk (and he did not say that he had been specifically told of the risk in Australia). The Tribunal considers that this inconsistent evidence about a matter as significant as a Muslim risking discovery of a Christian Bible undermines his claim that he took a Bible back to Iran with him.
[5] IMR decision, page 3.
Further, when the Tribunal asked the applicant about the blacklist, his evidence changed from the claims he made in his protection visa proceedings. In his IMR statement (where he addressed a number of issues raised in the RSA interview)[6], he states that his father had made enquiries and established that the applicant’s name is on a blacklist at the airport (and thus he fears he will be arrested on arrival). However, he told the Tribunal that when the applicant was on Christmas Island his father asked the police/security what is the situation for the applicant and they replied that ‘possibly his name is on the blacklist’. When the Tribunal sought confirmation that this is what his father told him, he then said he couldn’t recall, it was a long time ago. The Tribunal expressed concern that he could not recall something as important as discussions about his name being on a blacklist and his evidence then changed; he could recall, and his father told him at the time that his name was on the blacklist. The Tribunal was concerned that his initial evidence (minimising the likelihood that his name was on a blacklist by saying his father told him “possibly” his name was on a blacklist) was inconsistent with his subsequent evidence (and his claim made when he was initially claiming protection that he had been informed that his name was on the blacklist).
[6] IMR decision, page 4.
The Tribunal also had concerns about his claim made in the protection visa proceedings that the authorities at that time were after him.
It was his claim that when he left Iran in August 2010, he left legally using a genuine passport in his name. He said he then renewed his passport in [Country 2] because the validity was less than six months and he was informed he would not be allowed to travel from [Country 2] to [Country 1]. He told the Tribunal that this had occurred about two weeks prior to his arrival on Christmas Island (thus he had renewed his passport in about mid-August 2010). If this was the case, the Tribunal found it difficult to accept the emails produced by the applicant in his protection visa proceedings, stated to be from his father. The email dated [August] 2010 states that they had received a call from someone from the university looking for the applicant and they had told that person that the applicant had gone to [City] (in [another] Province) to work. Then the police had come and they had given them a fake address for the applicant. Then [in] September his father wrote that every day the police call and ask about the applicant and want to capture him. Then [in] September 2010, his father stated that the police bother them every day and ask where the applicant is. His parents tell the police that they do not know.
If, however, the applicant had passed through Iranian immigration (three checkpoints[7]) heading from Iran to [Country 2] in early August 2010, and then had renewed his passport through the Iranian authorities in mid-August 2010 (his passport records that he arrived in [Country 2] [in] August 2010), then it would appear that the authorities would have known that the applicant was overseas in [Country 2] by the time it is claimed they were visiting his family and asking for his whereabouts, and by the time the father was giving them a fake address (in Iran) for the applicant. In the circumstances it would appear that these emails are less than reliable and appear to be self-serving documents created to support a protection visa application.
[7] According to his RSA interview dated 29 September 2010.
Further, the evidence given to the Tribunal by the applicant in the current proceedings was that the first contact his father had with the authorities was maybe one week or 10 days before he arrived at Christmas Island (so end of August 2010) at which time they came to the house to look for the applicant, they took his father to the police station and his father told them that the applicant had left the country. This is very different to the assertions made in the father’s emails, which also undermines the claimed adverse interest in the applicant by the authorities.
The applicant’s explanation that he went to see his mother, he had made arrangements not to be caught, and took care when he spent time in Iran
The applicant told the Tribunal that his mother deteriorated slowly; in 2013/2014 she got worse. He said that his first trip to [Country 2] was his attempt to meet his mother who had become ill.
The Tribunal noted at hearing that there were some untranslated documents, and that the only documents which were translated showed that his mother had had a [medical details deleted]. The Tribunal asked whether [medical details deleted] were the extent of her problems, suggesting that these did not really seem like critical reasons for the applicant to risk his life to return to Iran. In response the applicant said there are things that have not been translated because he didn’t have time when he received the NOICC; there were mental health issues as a result of the applicant not being in Iran with her. The Tribunal noted that documents could have been subsequently been translated; the agent said he didn’t know about them. The Tribunal allowed further time after the hearing.
The applicant said that he felt that his mother’s health condition was critical in about mid-2013 and everyone was blaming him for the deterioration because he was not in Iran and she thought she will not see him again and she was sick and not eating.
After the hearing he provided a translation of an electronically received medical certificate from [a] Psychiatrist and Psychotherapist, who stated that the applicant’s mother had been diagnosed for severe depression and was under his care for treatment from May 2013 to November 2014. Other medical documents refer to his mother’s [medical details deleted] which had occurred in 2010, and stated that by June 2014 she needed to have operations [and] she was classed as over 66% permanently disabled, and had taken sick leave from her job in 2013 and 2014.
The Tribunal notes that in the father’s email of [September] 2010 (at the time of his arrival in Australia) he states that the applicant’s mother is ‘very homesick’ for the applicant. The Tribunal is prepared to accept that the applicant and his mother have a close relationship and that the applicant had concerns about his mother including her mental health condition and her forced retirement due to her physical difficulties, during 2013/2014.
The Tribunal found the applicant’s evidence however about his attempt to meet up with his mother in [Country 2] to be less than satisfactory. He claimed to have travelled to [Country 2] from August 2013 to October 2013, as set out in the agent’s submissions to the Tribunal of 28 March 2019, he stayed for two months because his mother was meant to come to [Country 2] so that they could see each other there, but she did not come. The Tribunal said that it did not understand; it asked whether he went to [Country 2] because his mother had a flight booked to go there too, and he said that his mother and sister were supposed to come, but his mother could not come. The Tribunal put to him that she is apparently unwell because she cannot see her son, so it did not understand why she did not do the one thing she wished to do, namely to come and see him. He said that she could not fly (on the advice of the psychiatrist). The Tribunal notes however that the post hearing documents do not suggest that his mother was unable to fly and see him in 2013. Further, when the Tribunal asked how long he was in [Country 2], he said that he was there for two months, he just stayed in the hotel, he was waiting for his mother to come. The Tribunal put to the applicant that this did not seem credible, and that instead perhaps he had travelled to [Country 2] for a holiday. The Tribunal asked why the applicant didn’t go to a more proximate country to attempt to see his mother, so that she would not have to travel so far. His only response was that it was his mistake not to go closer but he could get a visa to [Country 2]. The Tribunal considers that if his mother was ill, he could have arranged to meet her at a more proximate country. Further, he claimed he spent two months in [Country 2], which the Tribunal considered to be a lengthy period of time more akin to a holiday. Indeed when the Tribunal asked whether his mother had even had a flight booked to [Country 2] he said no.
Accordingly, the Tribunal is not satisfied that his trip to [Country 2] was an attempt to see his mother in a country other than Iran. It finds that it was a holiday. Thus, at the time he travelled to Iran in 2014 after having been granted a protection visa, in order to see his mother, the Tribunal finds that the applicant had made no earlier attempt to meet up with his mother despite the possibility for him to travel to a country close to Iran to make her travel easier. He did not suggest that he could not get a visa to a more proximate country when the Tribunal put this to him. The applicant’s failure to search for an alternate country where they could safely meet undermines his claims that he genuinely believed that he was sought after, and that he risked arrest and execution, if he returned to Iran to see his mother.
The Tribunal considers that the more likely scenario is that the applicant had no reason to fear returning to Iran for a short holiday to see his mother, and that by July 2014 he felt that his mother’s medical issues had continued and that he wanted to go home to visit her.
The Tribunal has also considered the applicant’s evidence that his actions were justifiable in his mind because he believed that he could get through the airport undetected, in light of the country information at that time. The DFAT Report issued in 2013 states that if people are trying to avoid capture, they would normally travel overland rather through the main airports, as Passport control checks are sophisticated in Iran[8]. Given the applicant’s evidence that when he was departing Iran he had to go through three different checkpoints in the airport, the Tribunal considers that it appeared very risky for him to travel through the airport, instead of trying to enter overland or given there was another alternative (meeting his mother outside Iran in a country closer to Iran in 2014). The evidence he provided does not suggest that his mother was unable to travel in either 2013 or 2014, nor that he was unable to meet her in a country which would make the trip easier for his mother, and means that he did not have to return to a country where he claimed he was of adverse interest to the authorities. The Tribunal considers that his conduct in travelling to Iran is not consistent with the answers he gave in his application.
[8] Paragraph 5.20, DFAT Report 29.11.2013.
In this regard, as put to the applicant at hearing, he made strong claims in support of his protection visa application; he would not want to go back to Iran knowing he was on a blacklist. The Tribunal put to him that his mother may have been ill, but she would not want him to be killed or arrested as soon as he arrives at the airport. Further, even if his father said that he has arranged something at the airport, this doesn’t mean those arrangements will work, and the Tribunal referred to the sophisticated systems at the airports. The Tribunal said that if his claims were true then the police would actively want to arrest him, so that there would be a significant risk incoming through the airport that he would not even get to see his mother. The Tribunal said that this in itself is a concern to indicate that the claims he made in his protection application were not true. In response the applicant said that he would not take the risk now as he has a wife and child dependent on him even if someone said to him he would be able to get through airport security checks. Further, the applicant said that his father picked him up in the airport and he reserved a hotel in his name. The applicant stayed two months. The Tribunal put to the applicant that this sounds more like a holiday in Iran, not a visit from someone who faces arrest and execution. In response he said that he could have gone to a neighbouring country and he did not insist on this and maybe he thought she will not make it or she would be scared of flight; at that time he thought he was doing the best for family. Concerning his return to Iran he now describes it as a stupid decision. The Tribunal has also considered the applicant’s assertion that he contacted the Department and was told to contact the immigration centre but he did not do so because he decided to take the risk of returning to see his mother.
Taking into account all of the above, the Tribunal is not prepared to accept the applicant’s explanation that his actions were justifiable in his mind because he believed that he could get through the airport undetected. He had already passed through three different checkpoints when he was leaving Iran; the Tribunal does not accept that he had the profile claimed and was prepared to take the risk of returning to Iran and rely upon a bribe apparently organised to allow him to return unnoticed. Instead the Tribunal considers that he was prepared to travel to Iran to see his mother because, although he had become a Christian in Australia, he was not fearful that the authorities would discover this if he had a short visit to Iran.
While the Tribunal accepts that the applicant had a desire to see his mother (it was asserted in the submissions that he was not in a stable psychological situation but there is no credible evidence of this before the Tribunal), it is not prepared to accept his assertion that in visiting her he took a risk (of coming to the attention of the authorities in Iran which, if discovered, would have meant his arrest and execution) because he didn’t want his mother to suffer.
The applicant argued that his claims made at the time of his protection visa application (of adverse attention and specific targeting of and searching for him) were true, if not he could have just stayed in Australia the first time and he did not have to take the risk of coming back by boat, further he could have come with a skilled visa if he had more time. The Tribunal considers that there could be a number of undisclosed reasons for his return to Iran after his first trip to Australia, and for not applying for a skilled visa (with no guarantee of the same ever being granted). The Tribunal does not consider this explanation to overcome its concerns.
The basis on which the applicant's visa has been cancelled arises from the circumstances of his return trip to Iran after he was granted protection and in the context of the claims he made for protection. The Tribunal accepts that not every return to a country of claimed persecution leads to a conclusion that an applicant has provided incorrect information in their application for protection. The mere fact of return does not necessarily indicate that an applicant did not have a well-founded fear of persecution at the time he or she made their application or that statements made or questions answered were incorrect.
However, in this matter the Tribunal considers an inference may be properly drawn that the applicant provided incorrect information in the way described in the NOICC.
On the basis of the above, the Tribunal is satisfied that the applicant gave incorrect answers to questions 41-46 and 65 in his application for a protection visa. The Tribunal is positively satisfied that there was non-compliance in the way described in the s.107 notice.
For the reasons set out above, 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 Tribunal has had regard to the applicant’s response to the NOICC, however as noted above it does not accept all the matters contained therein. The Tribunal proceeds to consider whether the visa should be cancelled based on its findings above. It notes that he stated:
· I believe that any other human being would do the same thing in my situation. We all have special feelings about our mothers and could not see them suffer without taking any action.
· I took the risk to go back to Iran and help my mother and I’m still happy about my decision. However I should have contacted the Immigration office prior to departing Australia, I wrongly assumed it would be sufficient to tell the customs officer at the airport.
The Tribunal does not accept that the applicant considered that he took the risk that he claimed existed by returning to Iran.
The applicant's agent's submissions note that the applicant does not concede there has been non-compliance as set out in the NOICC. Despite this, he submits that if the Tribunal finds there has been no non-compliance in the way described in the NOICC, the applicant's visa should not be cancelled.
The correct information: The applicant and his agent have maintained that he provided correct information. As discussed above, the Tribunal is prepared to accept that the applicant was not interested in Islam or obeying the Islamic regime when he lived in Iran. It accepts that he explored, and became interested in Christianity when he visited Australia in 2009/2010. It does not however accept his claims as to what happened when he returned to Iran and for the reasons set out above, the Tribunal finds that the correct information is that the applicant did not hold the adverse profile as a Christian convert who proselytised to his friends in Iran and provided them with a Bible after returning from Australia which had been discovered by the authorities and his name had been placed on a blacklist and thus he had a genuine fear of harm, capture, imprisonment, physical assault and possible death at the hands of the Iranian authorities. Thus, given he provided incorrect information in support of his protection visa application, the Tribunal does not give this consideration any positive weight in the applicant’s favour.
The content of the genuine document (if any): This prescribed matter is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 (relating to bogus documents).
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: The applicant's claims for protection were based on his fear of returning to Iran where he claimed he feared he would be arrested at the airport by the authorities and subjected to severe harm including the possibility of execution. The Tribunal considers that the decision to grant him a protection visa was based on the incorrect information he gave to the Department. The Tribunal has taken into account the submission that the protection visa was granted on the basis of a well-founded fear of persecution not on the absolute fact that if a person goes back to his country he would definitely be persecuted. While the Tribunal agrees with that submission in theory, it does not accept that it is applicable in this particular case, given the strength of the claims including that his name was on a blacklist and the authorities were actively pursuing him. The Tribunal does not give this consideration any positive weight in the applicant’s favour.
The circumstances in which the non-compliance occurred: The circumstances in which the incorrect information was given was that the applicant was pursuing a protection visa application and, as found below, the Tribunal had been prepare to accept that at that time he was a Christian. The Tribunal is not prepared to accept that this can explain why he provided additional incorrect information as to the events that occurred in Iran when he had returned from his visit to Australia. The Tribunal notes that the applicant does not appear to have provided any clarification or acknowledged that he provided incorrect information with his application. The Tribunal does not give this consideration any positive weight in the applicant’s favour.
The subsequent behaviour of the applicant concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: The applicant has consistently maintained that he did not provide incorrect information in his application for protection, which the Tribunal has found to be incorrect. The Tribunal finds that after he maintained he could not return to Iran, he did so on one occasion for a two month period in 2014; to which the Tribunal assigns negative weight; although he did not repeat this in the following three years before he was issued with a NOICC in July 2017; to which the Tribunal assigns some positive weight. On balance, the Tribunal does not give this consideration any positive weight in the applicant’s favour.
Any other instances of non-compliance by the visa holder known to the Minister: the agent noted in the submissions that condition 8559 had been imposed on protection visas granted on or after 3 June 2013 requiring that the holder must not enter the country by reference to which the holder was found to be a person whom Australia has protection obligations unless the Minister had approved the entry in writing. It was noted that the applicant’s protection visa was granted on 8 February 2012 without any visa condition and thus the applicant did not breach any condition of his visa by returning to Iran. It was also stated that the applicant confirms that he has not provided any false or misleading information to the Department or other governmental agencies. The Tribunal notes that in the delegate’s decision record it was not suggested that there was any such further instances of non-compliance known to the Minister. The Tribunal gives this some positive weight in the applicant’s favour.
Any breaches of the law since the non-compliance and the seriousness of those breaches: the Department did not provide any indication of any breaches of the law, which was confirmed on behalf of the applicant. The Tribunal gives this some positive weight in the applicant’s favour.
Any contribution made by the holder to the community: it was submitted that the applicant had tried his best to be helpful to the Australian society and that he has done many volunteer jobs and helped many Iranians who had English language difficulties since his arrival in Australia, and when he was in immigration detention. The Tribunal gives this some positive weight. It was also submitted that he has studied courses and worked. The applicant himself told the Tribunal that he has drawn substantially from Centrelink on the basis that he couldn’t find a job for many years. The Tribunal considers that the applicant is a very resourceful man, and finds it difficult to accept that he could not find a job for many years and instead drew upon social security resources. The Tribunal gives this negative weight. It notes that he has been working after the NOICC was issued.
The present circumstances of the visa holder: the applicant did not address this consideration in his response to the NOICC. The agent’s submissions stated that the applicant was currently living as a bridging visa holder. He has been a genuine Christian, he changed his name in 2015 and married his Australian wife in 2018 after a five-year relationship, and [their child] was born on [date]. He studied a number of courses in Australia and currently works [in] [Work sector].
The Tribunal has considered the following background provided to the Tribunal.
Change of name: The Tribunal accepts that the applicant changed his name from [Name 1] to [Name 2] [in] July 2015[9] after he arrived in Australia. He told the Tribunal that his nickname had been [Name 2], short for [Name 2 longer form]; this was how he used to introduce himself. He thought it would be easier in Australia. He said that [Name 2] is neither an Islamic or Christian name. His family were not upset that he changed his name because they always knew he wanted to change it but he couldn’t do that in Iran. The Tribunal is prepared to accept that his change of name supports his lack of attachment to Islam, and that this occurred well after the grant of his protection visa application and before the NOICC was issued.
[9] Change of Name Certificate provided.
Church attendance in Australia from 2010: The applicant arrived in Australia (for the second time) in 2010. He was released from detention [in] February 2012. When asked about his church attendance that year, after he was released, he said that he went on Sundays, as often as he could. He would go unless he was not well or had something important to do. He estimates that he went to church four Sundays per month.
Concerning 2013 (after his protection visa had been granted), he said that his church attendance remained the same (about four Sundays per month). Similarly, apart from when he was in Iran for two months, in 2014 he attended usually four Sundays per month unless he had something else important to do. He said that his attendance was the same in 2015, 2016 and 2017.
The churches he attended were [Church 1] in [city] for one month in 2012 and then he moved; from March 2012 until 2018 he attended [Church 1] church (in [City 1]). He also held a Bible study every fortnight when he was at [Church 1]. This commenced in 2012, and at times moved to other person’s homes. Most recently he has been attending a church which has one main pastor. He has been attending for more than one year.
100. The Tribunal put to the applicant that it was interested in evidence of his attendance after his protection visa had been granted and before he had been informed that his visa was at risk. The applicant said that he could get a letter from friends at the [Church 1] church; the Tribunal said it would like an official letter and he said that is not possible as the gatherings are so large: [number] people attend, and the Pastor of the Church wouldn’t know him. He also said that he doesn’t have official evidence of his fortnightly Bible study as it is not connected to the [Church 1] church. He also said that he could get a letter from that Pastor of the church he currently attends (although he only started attending that church after the issue of the NOICC).
101. When asked, he told the Tribunal that at the last Bible study he attended they discussed the story of the farmer planting seeds. He said that he thinks it comes from Matthew, but he can’t recall the number (6 or 7). Available information shows that there is such a parable in the Bible, at Matthews 13[10]. Although it was somewhat different to that explained by the applicant, it was not so different.
[10] The Tribunal has considered the post hearing information provided by the applicant. This includes a letter from [a pastor] of [Church 2] which confirms the applicant’s attendance for nearly 20 months at his church (thus from about August 2017, just after the issue of the NOICC) on a regular basis. The pastor also states that the applicant had attended [Church 1] prior to this time. The pastor stated that the applicant was a man of integrity and of good character, modelling consisting good behaviour, he is well liked among a very culturally diverse church. A letter from the applicant’s friend, [Mr F], [an occupation], states that he met the applicant in 2012 and ever since he has known him he has been a proud Christian who has always talked about Jesus and the words of the gospel. He is always encouraged Mr [F] to attend church, and Mr [F] started attending church at [Church 1] in 2016. Mr [F] is of the view that the applicant’s discussion of his faith has led to his own conversion to Christianity and he is currently a practising Christian. Mr [F] suggested that if there are any further questions, he could be contacted on his telephone number (provided). Another friend [provided] a statutory declaration stating that they met in 2015 at [Church 1] and since that time his family and himself had formed a friendship with the applicant. They had been involved in Bible studies which rotated location and since that time it has been held at [the applicant’s] place. He believes that the applicant is a true Christian whom he saw regularly at [Church 1]. The applicant’s wife also gave evidence at hearing that the applicant is a Christian. She said that when they met in 2013 she assumed he was a Muslim but he said that he was a Christian back then. He is constantly talking to her about converting, and he attends Bible studies and church.
103. When the applicant was asked if he had discussed the religion of the child with his wife, he said that he is trying to convert his wife to Christianity and he hopes that the child can be a Christian. This was confirmed in the wife’s evidence and she said, however, that she wants the child to decide for itself.
104. The Tribunal accepts that the applicant was a Christian at the time of the grant of his protection visa, and that he has remained a Christian thereafter, and has attended church and participated in Bible studies on a regular basis for many years in Australia.
105. The applicant’s wife and child: the Tribunal accepts the evidence of the applicant and his wife that they have been in a relationship for about seven years, a tenant report confirmed that the applicant and his wife have been renting a property together since 2017, that they married [in] February 2018 (marriage certificate provided), and that they had [a child] on [date] (birth certificate provided). The Tribunal accepts that his wife is Baha’i (evidence provided of applicant, his wife), [details deleted] (a letter [details deleted] was provided). The Tribunal accepts that the wife is an Australian citizen, and the Tribunal does not see any reason why the child would not be entitled to Australian citizenship. The Tribunal accepts that the applicant lives with his wife and child and that they are established in Australia. It accepts that his wife because of her faith and history has not gone back to Iran. The Tribunal accepts the evidence of the wife that she relies upon her husband and that he is a very good father to their child.
106. The Tribunal gives the present circumstances of the applicant significant weight in favour of not cancelling his visa.
The time that has elapsed since the non-compliance
107. The delegate’s decision record cancelling the visa, which did not have any information about his marriage and child, stated as follows:
The non-compliance occurred when the visa holder lodged an application for a Protection class (XA) (subclass 866) visa on 02 February 2012. Whilst the visa holder did not address this consideration in response to the NOICC, It would be reasonable to conclude that after residing in Australia for approximately 5 years the visa holder would have built a network of social ties to the Australian community. However, the visa holder obtained permanent residency in Australia by providing incorrect information to facilitate the grant of his Protection visa. The visa holder has spent most of his life in Iran and demonstrated he can return there without apparent harm. As mentioned previously, the visa holder’s family remain offshore, I consider that the visa holder has strong ties to Iran.
108. While the Tribunal accepts that the applicant has strong ties to Iran, having regard to the above it considers that in the eight years that have elapsed since the grant of the protection visa, the applicant has established strong ties here when considering his Australian wife and child. Further, while the delegate did not appear to examine in any detail whether or not the applicant was a Christian, the Tribunal has accepted that the applicant is a Christian and that for a combination of reasons he may face real difficulties upon return to Iran, as discussed below. The Tribunal gives this some positive weight in favour of not cancelling the visa.
Policy considerations
109. In addition to the requisite prescribed matters, the Tribunal considers it proper to have regard to suggested considerations under the policy, including whether there are mandatory legal consequences to a cancellation decision, whether there are persons in Australia whose visas would, or may, be cancelled consequentially, whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, and the degree of hardship that may be caused to the visa holder and any family members and other relevant matters.
110. It was submitted that a cancellation would lead to the applicant being subjected to return to Iran in breach of non-refoulement obligations or if he was not returnable to Iran, then he would be subject to indefinite detention in Australia. A further international agreement that would be breached is the International Convention on the Rights of the Child.
111. Family and children: Australia is a signatory to the Convention on the Rights of the Child which relevantly provides that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’ and further states that ‘parties undertake to ensure the child such protection and care as is necessary for his or her well-being.’ The Convention also provides for the protection of the family unit and rights for a child to be cared for by both their parents, the preservation of family relations and that children should not be separated from their parents against their will unless such separation is necessary for the best interests of the child.
112. The Tribunal accepts that if as a result of the cancellation of the visa, the applicant will be returned to Iran, then this will lead to the breakup of the family unit as the wife and child could not follow the applicant to Iran. Having regard to the Convention on the Rights of the Child, it is clearly in the applicant’s child’s best interests that the family unit remain intact. It accepts the applicant’s wife’s evidence that this would cause significant hardship. The Tribunal gives these matters significant positive weight as a reason for not cancelling the applicant’s visa.
113. The evidence before the Tribunal is that there are no dependent visa holders who would be liable for cancellation under s.140 of the Act should the applicant’s visa be cancelled. The Tribunal does not give this consideration any positive weight in the applicant’s favour.
114. Non-refoulement obligations: The Tribunal has accepted that the applicant is a Christian. It appears that, according to ICSE records, an international treaty obligation assessment (ITOA) has not been carried out by the Department. The most recent DFAT Report indicates that the renunciation of Islam could, depending on the circumstances, lead to a real chance of persecution as the law in Iran prohibits individuals from renouncing Islam and under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if he or she makes utterances that are deemed derogatory towards the Prophet Mohammed, other Shi’a holy figures, or other divine prophets. Further, although the DFAT Report notes that Iranian authorities pay little attention to failed asylum seekers, it also notes that:
While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. In recent years, the group has included Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’i, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis), and others who espouse unconventional religious beliefs (including members of recognised religious groups).
Some religiously-based cases have clear political overtones, while other cases do seem to be primarily of a religious nature, particularly when connected to proselytisation. (emphasis added)
115. The Tribunal had some doubts as to whether the applicant did proselytise as claimed, however it is prepared to give him the benefit of the doubt and to accept his evidence, and that of his wife and friends, that he does try to convert people to Christianity.
116. It was also argued that the applicant may be considered as a spy because he has married a Baha’i who has been to [Country 3]. The Tribunal queried as to how the Iranian authorities would be aware of this information, however the Tribunal cannot discount that the applicant, who no longer respects Islam or the Iranian authorities, and who proselytises as a Muslim convert to Christianity, has married into a [Baha’i family], and who is the father of a child to a woman in that family, will in the reasonably foreseeable future come to the adverse attention of the Iranian authorities if he was returned to Iran, and that as a result of his religious and political views, would face a real chance of persecution in Iran.
Conclusion as to the exercise of discretion
117. All of these discretionary factors require very careful consideration. Having considered and weighed the positive and negative mandatory considerations, as well as the other factors referred to above, it is the Tribunal’s view that the matters relevant to the applicant’s present circumstances, and the consequences for himself, his wife and his child if his visa is cancelled, outweigh those matters which favour cancelling the applicant's visa.
118. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
119. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Christine Cody
MemberANNEXURE A - 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Standing
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Statutory Construction
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Natural Justice
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