1731333 (Refugee)

[2018] AATA 5639

1731333 (Refugee) [2018] AATA 5639 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1731333

COUNTRY OF REFERENCE:                  Iran

MEMBERS:Christopher Smolicz (Presiding)

Peter Britten-Jones

DATE:7 December 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 07 December 2018 at 12:00pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – Federal Circuit Court remittal – incorrect information in the visa application – claimed false passport – political opinion – anti-regime – Green movement – religion – Christian convert – one child has Australian citizenship – best interests of the child – activities promoting Ahwazi Arabs – third country citizenship – non-refoulement obligations – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 48A, 101, 107, 109, 140, 375A, 438
Migration Regulations 1994 (Cth), r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

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).

   Background

2. On 14 May 2010 the applicant was granted a Class XA Subclass 866 Protection Visa.

3. On 20 April 2016 the Department issued the applicant with a Notice of Intention to Consider Cancellation (the notice) of his visa under s.109 of the Act. 

4. On 3 May 2016 the applicant responded to the Notice.

5. After considering the applicant’s response the delegate was not satisfied the applicant complied with ss.101(a) and (b) of the Act nor that there was sufficient reason not to cancel the visa on discretionary grounds. On 5 August 2016 the delegate cancelled the applicant’s visa. The applicant applied to the Tribunal for review of the Department’s decision.

6. On 21 December 2016 a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision and the applicant applied to the Federal Circuit Court of Australia (FCCA) to review the delegate’s decision.

7. [In] November 2017 an order of the FCCA by consent quashed the first Tribunal’s decision by noting that the Tribunal had denied the applicant procedural fairness by not disclosing to the applicant a certificate issued on 22 August 2016 pursuant to s.375A of the Act and where at least some of the documents the subject of the certificate were relevant or potentially relevant to the issues on review.

8. Accordingly, having been remitted to the Tribunal from the FCCA the matter was brought back before the Tribunal for reconsideration.

9. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

10. The applicant appeared before the Tribunal on 16 August 2018 and 12 September 2018 to give evidence and present arguments. The applicant provided the Tribunal with a copy of the delegate’s decision.

11. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review by his registered migration agent.

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

    Section 438 certificates

13. As a preliminary issue the Tribunal notes that there are certificates issued by a delegate of the Minister under s.438 of the Act located on the Department’s files which have been provided to the Tribunal.

14. Section 438 permits the Minister to certify that the disclosure of information may be contrary to the public interest for any reason specified in the certificate: “that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed”.

15. Prior to the hearing the applicant’s agent wrote to the Tribunal and requested that the Tribunal release copies of any certificates issued under s.438 or s.375A of the Act so that it could comment on their validity prior to the hearing.  The agent also requested copies of any material the subject of the certificate if the Tribunal considers it appropriate to disclose any information or documents the subject of the certificates.

16. The certificates were the subject of correspondence between the Tribunal and the applicant’s agent. The correspondence is located on the Tribunal’s file. [1] The certificates were also discussed with the applicant’s agent at the hearing.

    [1] See AAT correspondence dated 10 July 2018 and 24 July 2018

17. In summary the Tribunal has considered the certificates in the Department’s files and the reasons why they were issued in respect of the specified folios. The Tribunal has formed the view that the certificates are valid. The Tribunal disclosed to the applicant copies of all certificates in the Department’s files and invited the applicant to comment on their validity. The Tribunal also exercised its discretion under s.438(3)(b) and considered it appropriate to disclose a number of documents to the applicant. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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.

19. 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.

    Did the notice comply with the requirements in s.107? 

20. In the present case, it is not in dispute that the notice issued by the Minister’s delegate complied with s.107. Considering that document as a whole, the Tribunal is satisfied it sufficiently informed the applicant of the basis upon which the cancellation was being considered and gave him the required opportunity to respond.

21. The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

22. 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.

23. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 in the following respects:

    ·In the protection visa application (Form 866C) the applicant declared his family name as [Mr A], first name [name] (Q1), date of birth [Date 1] (Q7).

    ·In the Form 866C he did not answer the questions about whether there was any other name he was known by (Q4) and his current citizenship (Q20).  He answered ‘no’ to the question about whether he held any other citizenship (Q21).

    ·In the Form 866C he declared that he arrived in Australia as a stowaway (Q26) [in] February 2010 (Q27). He answered ‘nil’ to the question on what travel document he entered Australia (Q29).  He answered ‘no’ to the question about whether he had ever had or used any other passport (Q30) and ‘N/A’ to the question asking for details about the most recent visa granted to him (Q31). 

    ·In the Form 866C he answered only Iran, transit and Australia in response to the question on countries of former habitual residence (Q32).  He answered ‘no’ to the question on whether he had travelled outside his home country (Q33).

    ·In the Form 866C he claimed to have lived at one address in Ahwaz, Iran, from [specified year] to 2010 and that he lived on a cargo ship from January 2010 to February 2010 (Q34).  In response to the question of where he had lived in Australia he said he lived on a park bench in [city] for three days in February 2010 (Q35).

    ·In the Form 866C he answered ‘refer to my statement’ on why he left Iran (Q42).

    ·In the Form 866C he signed a declaration that the information provided was correct (Q65).

    ·In the Form 80 (Personal particulars for character assessment) he provided his name as [Mr A] (Q1) and date of birth as [Date 1] (Q5).  He did not answer the question about any other names he had been known as (Q3).

    ·In the Form 80 he answered ‘no’ to the question of whether he was a dual citizen (Q11) and ‘nil’ to the question requesting details of all passports issued to him (Q13). 

    ·In the Form 80 he claimed to have lived at one address in Ahwaz, Iran, from [specified year] to 2010 and that he lived on a cargo ship from January 2010 to February 2010 (Q21).

    ·In the Form 80 he signed a declaration that the information provided was correct (Q36).

24. The applicant was granted a protection visa based on the information provided, however it has since been shown this information was incorrect. 

25. The applicant was interviewed by the Department on 19 April 2015 and was presented with the following information:

    ·He entered Australia on [a date in] January 2010 on an international flight, holding a visitor visa traveling on a [Country 1] passport number [number] (issued [in] 2009, expiry [in] 2019).

    ·His name is [Mr B] born on [Date 2] born in [Country 2].

    ·He was a citizen of [Country 1].

    ·He lived in [City 1, Country 1].

    ·Immigration officers at [the named] Airport conducted a face to passport check and were satisfied that [Mr B] was in Australia to visit a friend.

    ·The [Country 1] authorities confirmed that he ([Mr B]) is a citizen of [Country 1] and that the passport is a genuinely issued document that has not been reported lost or stolen.

26. The applicant denied the above information. He also denied that he was the person in photographs shown to him by the Department, including photographs taken by the Department itself of him in previous interviews.  He denied creating a [social media] page in the name of [Mr C], which the Department claim showed photographs of him in [Country 1], although he admitted the images on that page were of him.

27. In response to the s.107 notice, the applicant conceded he did enter Australia by plane holding the passport issued to [Mr B] and he did not enter Australia as a stowaway. He denies however that he is [Mr B], a citizen of [Country 1].  He says he purchased the passport in [Country 3] from a people smuggler.  After entering Australia he was too frightened to immediately contact the Australian authorities and seek asylum, he was afraid of being accused of entering the country using a false identity and of being put in prison. He claimed that he escaped from the authorities and the secret police in Iran and did not feel safe talking to the authorities in Australia.

28. He provided identity documents in the name of [Mr A], photographs of him which he says were taken at events in Iran and a letter from an employer in Iran saying the applicant worked there from 2007 to 2009. He denies ever having visited [Country 1]. 

29. In relation to the photographs appearing on [Mr C's social media] page, he says a photograph of him in front of a [landmark] dated [in] September 2014, which the Department says is in [City 1], [Country 1], was actually taken on a trip to [Country 4]. 

30. At hearing the applicant confirmed he had given incorrect information in his protection visa application. Namely he lied about entering Australia by ship as a stowaway and conceded that he arrived in Australia by plane holding a [Country 1] passport issued to [Mr B]. He claims the passport was given to him by a people smuggler in [Country 3] and he is not [Mr B], he is not a [Country 1] citizen and has never been to [Country 1].

31. The Tribunal finds the applicant entered Australia as the holder of a [Country 1] passport that belonged to him, and therefore that he is, or is also known as, [Mr B]. He therefore answered incorrectly questions relating to his alias, citizenship and travel to Australia.

32. The Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa arises. 

    Should the visa be cancelled?

33. 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).

34. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

    ·     any other instances of non-compliance by the visa holder known to the Minister

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

35. Whilst these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

    The correct information

36. As detailed above the applicant has acknowledged that some of the information provided in his protection visa application (Form 866C) was incorrect.

37. The applicant claims he was involved in political demonstrations in Iran in June 2009 and that he fears persecution from the police because of his political involvement.

38. When questioned at the hearing the applicant claims he fled Iran and travelled to [Country 3] on his brother’s passport ([Brother D]) because his passport had expired. He also feared the Iranian Intelligence Services were looking for him so he could not use his own passport. He claims his brother’s passport was genuine.

39. The Tribunal asked the applicant if he could produce his brother’s Iranian passport. The applicant said he threw it in the bin when he was in [Country 3]. The Tribunal was provided a brief statement from [Brother D].

40. The Tribunal found the statement of limited assistance. The Tribunal attempted to take evidence by phone from Iran from [Brother D] during the hearing but was unable to make contact with the witness.

41. The Tribunal finds the applicant’s evidence about his travel from Iran to [Country 3] using his brother’s passport lacking in credibility. The Tribunal notes the applicant’s brother is two years older than the applicant and it is apparent from his photograph, which was attached to his statement, that his facial features look significantly different in appearance from the applicant.

42. The Tribunal finds it difficult to accept that the applicant was able to use his brother’s passport to depart Iran and travel to [Country 3]. The Tribunal finds the applicant’s claim that he would throw his brother’s genuine passport in the bin lacking in credibility. The Tribunal does not accept that the applicant travelled to [Country 3] using his brother’s passport.

43. The Tribunal questioned the applicant about the [Country 1] passport he used to enter Australia. The applicant said he paid money to a people smuggler in Iran who helped him obtain the [Country 1] passport in [Country 3]. He paid $5,000 in Iran and $5,000 in [Country 3] for the passport. The Tribunal noted that the [Country 1] authorities have verified that the passport was genuine and it has not been reported lost or stolen.

44. The Tribunal asked the applicant if the [Country 1] passport contained his photograph. The applicant maintained the photograph in the [Country 1] passport was of another person who was unknown to him. He claimed that he looked a little similar to him. The Tribunal observed that it seemed a very strange coincidence that the people smuggler was able to find a [Country 1] passport with a photograph that happened to look like him. The applicant subsequently said that the photograph in the passport wasn’t that similar to him. He claimed both their hair was black and he tried to arrange his hairstyle to match the photo. The Tribunal asked the applicant if he spoke [the language of Country 1]. The applicant said he did not speak [the language]. The Tribunal asked the applicant if it crossed his mind that he should speak [the language of Country 1] if he presents a [Country 1] passport to customs officers. The applicant maintained that he did not speak [the language] and was fearful if someone spoke [it] to him.

45. The Tribunal asked the applicant if he could produce the [Country 1] passport on which he travelled to Australia. The applicant said that he tore it up and threw it in the bin before he applied to become a refugee in Australia. The applicant maintained that the passport was not his and it was not genuine. He tore up the passport because he wanted to introduce himself to the Australian authorities using his real name. He thought that if he produced the [Country 1] passport he would be deported to [Country 3]. The Tribunal finds the applicant’s evidence lacking in credibility.

46. By reference to the delegate’s decision the Tribunal notes that upon his arrival in Australia a bona fide check was carried out by authorities. The applicant was questioned and he claimed to be [Mr B] and stated that he was in Australia to visit a friend. The officer conducted a face to passport check and was satisfied of the match. The officer did not believe the passport had been tampered with. As detailed in the delegate’s decision the Tribunal accepts that airport officers are trained to identify suspected fraudulent documents.

47. The Tribunal does not accept the applicant’s claim that he destroyed the [Country 1] passport since he arrived in Australia. The Tribunal finds that the applicant has deliberately concealed the [Country 1] passport since arriving in Australia because it is a genuine travel document which contains his photograph and a record of his travel history which undermines his claims for protection.

1. The Tribunal observed that according to country information referred to in the delegate’s decision, a person has to reside at least eight years legally in [Country 1] in order to obtain a [Country 1] passport. The applicant maintained that he had never been to [Country 1] and was working for [a business] ([year range]). He claims the [worksite] closed in 2010 and he was made redundant. He provided one payslip dated March 2000 in support of his evidence. He claims he worked as a [role] for a [service] company in Iran from 2007 until 2009 and provided a reference letter.  He provided a number of photographs of himself which he claims were taken in Iran. He stated he was married in Shiraz in December 2009 and provided photographs from the wedding. The Tribunal has considered this evidence but is not satisfied that it can displace the evidence that he has [Country 1] citizenship.

2. The Tribunal notes that according to the information contained in the delegate’s decision, the Australian visitor visa on which he travelled to Australia was issued in [City 1] [in Country 1] in July 2009 and was applied for using a [Country 1] email address ([specified]) which was linked to a [social media] profile in the name [of Mr C].

3. The Tribunal finds it implausible that the applicant could have been given a [Country 1] passport issued by a people smuggler in [Country 3] with a valid visa issued to someone in [Country 1] which coincidently had an email address linked to a [social media] account with the applicant’s photograph taken in [City 1], [Country 1].

4. The Tribunal questioned the applicant about the [social media] page at the hearing. The applicant denied creating the [social media] page. He claimed he only became aware of the [social media] page when it was brought to his attention by the Department. He claims that he subsequently found out it was created by his brother ([Brother E]) in Iran. [Brother E] provided a brief statement in which wrote:

   I confirm that I created a [social media] page using [the applicant’s] pictures with the name [Mr C], without telling him. The reason that I created this page was to have contact with girls but under a different name and pictures. I then deleted the page when [the applicant] spoke to me about this in 2014.

5. The Tribunal attempted to take evidence from [Brother E] by telephone during the hearing but was unable to make contact. The Tribunal found the statement of limited assistance. The applicant confirmed at the hearing that [Brother E] had never been to [Country 1]. It is unclear how or why the applicant’s brother who was living in Iran would be using a [social media] page with a [Country 1] email address containing his brother’s photographs to contact women.

6. The Tribunal referred the applicant to the photograph dated [in] September 2004 which appears on [Mr C's] [social media] page. The Tribunal noted that the Department conducted an internet search and confirmed that the [landmark] in the background of the photograph is located in [City 1], [Country 1].[2] The applicant admitted that he was depicted in the photograph which appears on [Mr C's] [social media] page but maintained he has never been to [Country 1]. He claims the photograph was taken by a friend in 2004 in [a town in Country 4].

   [2] See Delegate’s decision attachment B see also [deleted]

7. The Tribunal invited the applicant to identify the road and the building in [Country 4] which he claims is depicted in the picture. The applicant said that he was in [Country 4] 14 years ago and he could not provide any further information and does not know the name of the road or the building. The Tribunal has undertaken a comparison of the applicant’s photograph with the images of the [landmark] in [City 1], [Country 1] annexed to the delegate’s decision and is satisfied the photograph was taken in front of the [landmark] in [City 1], [Country 1].

8. The Tribunal found the applicant’s evidence that he had never been to [Country 1] lacking in credibility.

9. The Tribunal has had regard to [Mr C's] [social media] page referred to in the delegate’s decision and does not accept the applicant’s claim that he had no prior knowledge of the page and that it was created by his brother in Iran to meet women. The Tribunal finds that the [social media] page depicts a photograph of the applicant in [City 1], [Country 1] in 2004. The Tribunal finds that the email address associated with the [social media] page was linked to the visa used by the applicant to enter Australia. The Tribunal finds that the [Country 1] passport used by the applicant was also issued in [City 1], [Country 1] in [2009] and is a genuine document.

10. It was submitted by the applicant’s agent that in the context of a person seeking asylum in Australia, it is understandable that the applicant initially concealed the fact that he arrived in Australia on a ‘false passport’. The Tribunal finds that the correct information is that the applicant entered Australia on a genuine [Country 1] passport traveling by plane with a valid visa. 

11. The applicant’s representative referred the Tribunal to country information that [Country 1] citizenship law allows [Country 1] to revoke a person’s citizenship if that citizenship was obtained through fraud or incorrect information.[3] It was submitted that there is a real chance that [Country 1] would revoke the applicant’s citizenship were they to become aware of the applicant’s identity. On this basis, it was submitted the only country to which the Tribunal can reasonably find the applicant could be returned, is Iran.

    [3] –[Source deleted.]

12. As detailed above the [Country 1] authorities have confirmed that the [Country 1] passport used by the applicant has not been reported lost or stolen. It is beyond the scope of this review for the Tribunal to speculate on what action, if any, the [Country 1] authorities may take if the applicant were to return to [Country 1].

13. The Tribunal had regard to the country information referred to in the delegate’s decision regarding [Country 1] citizenship laws and finds that the applicant was resident in [Country 1] for eight years and satisfied the requirements to be granted [Country 1] citizenship in [2009]. The Tribunal finds the applicant is known as [Mr B] born on [Date 2], and is a [Country 1] citizen usually resident in [Country 1] between at least [dates in] 2003 and [2009].

    Content of the genuine document (if any) 

14. This factor has not been raised by the Department in respect of the applicant.

    Whether the decision to grant a visitor visa or immigration clear the visa holder was based wholly or partly on incorrect information or a bogus document

15. The applicant submits that even had he confessed to entering Australia on the false passport belonging to [Mr B] when he applied for the protection visa, this would not have altered the protection claims raised by him.

16. The Tribunal questioned the applicant about his political profile in Iran. The Tribunal found his evidence vague and lacking in detail. The applicant claimed he was a member of the “Green Party” but does not have a membership card or any documents relevant to his membership of the party. He claims that [in] June 2009 he was attending protests in support of Mousavi’s Green Movement. He claims his brother was arrested at that time and he was able to escape. He claims the authorities had photographs of him attending the protest. When asked to explain his role in the Green Movement the applicant said he was very active in the two or three weeks before the election distributing “green cloth” that people could tie around their head and wrists. The Tribunal has had regard to country information and notes that the June 2009 protests were attended by thousands of people in Iran many of whom were arrested. The Tribunal finds it surprising the authorities would have the applicant’s picture and know his identity if he was not arrested or detained. The applicant said that he was protesting in Ahvaz where the protest was smaller than Teheran.

17. The Tribunal also notes the [Country 1] passport was issued [in] 2009 which would suggest the applicant would need to be in [Country 1] at the time of the protest activity.

18. As detailed the Tribunal also questioned the applicant about the photographs depicting him in Iran in various public settings.[4] The Tribunal finds the photographs are inconsistent with his claim that he was hiding from the authorities because of his political profile. The Tribunal finds he was residing in [Country 1] and able to voluntarily return to Iran without fear of persecution. For example, the applicant identified photographs of himself in Iran in October 2009, November 2009 and in December 2009 when he married.

    [4] Departmental file [number] folios 156 -160

19. The Tribunal finds the applicant’s concealment of his alias and time spent in [Country 1] casts doubt on his claims to have been politically active in the Green Movement in Iran and to have fled Iran for this reason. The Tribunal finds that the likely effect on a visa grant, had the correct information been provided, was that the applicant would not have met the criteria for a protection visa. 

    The circumstances in which the non-compliance occurred

20. It was submitted that the non-compliance which has been accepted by the applicant, namely his entry to Australia on a false passport, occurred at a time when he was seeking asylum as a result of his political opinion. It was submitted by the applicant’s agent that in the context of a person seeking asylum in Australia, it is understandable that the applicant initially concealed the fact that he arrived in Australia on a “false passport”.

21. The Tribunal finds that the circumstances in which the non-compliance occurred were that the applicant deliberately concealed his mode of entry to Australia, his alias, his past countries of residence, and his citizenship of [Country 1].  He deliberately concealed information and provided incorrect information at his protection visa interview and at an interview to discuss his identity.

    The visa holder’s present circumstances

22. The applicant is married to [the applicant’s wife’s name], who was granted a partner visa on 23 June 2014. The applicant is father to an Australian citizen child born on [date].

23. The applicant has been in receipt of Centrelink benefits since the grant of the protection visa and has only worked for about six months as [Occupation 1]. The applicant also submitted that he helped care for his wife after she suffered complications arising from her pregnancy.

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

24. It was submitted that the applicant admitted to having provided incorrect information about his arrival in Australia when issued the notice, and has provided all information as requested since then. The Tribunal finds however that the applicant has continued to conceal his [Country 1] citizenship and residency before the Tribunal. The Tribunal gives these factors significant weight.

    Any other instances of non-compliance by the visa holder known to the Minister

25. The applicant does not have a history of non-compliance with his visa conditions.

    The time that has elapsed since the non-compliance

26. The Tribunal finds that about eight years have elapsed since he arrived in Australia. The Tribunal accepts that during this time he has settled into the local community, sponsored his wife and had a child in Australia. He has undertaken some study and completed a [qualification in Occupation 1].

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

27. The applicant has no criminal record in Australia.

    Any contribution made by the holder to the community

28. The applicant conceded that he has not made any specific contribution to the community since he arrived in Australia because he has been assisting his wife to settle into the Australian community and to raise their child.

    Matters that should be taken into account – PAM3

    Whether there are persons in Australia whose visas would, or may be cancelled under s.140 of the Act

29. As the holder of a permanent protection visa, the applicant was eligible to sponsor his wife for a partner visa. [The applicant’s wife] was granted the [Partner] visa on 23 June 2014. Her visa was cancelled on 5 August 2016.

30. It was submitted that the first Tribunal found that the cancellation of [the applicant’s wife’s] [partner] visa was a mandatory cancellation pursuant to s.140(1) of the Act and the first Tribunal found that it did not have jurisdiction with respect to [the applicant’s wife].

31. The Tribunal finds however that upon cancellation of the applicant’s protection visa, grounds exist to consider consequential cancellation of his wife’s visa under s.140(2) of the Act.

32. The applicant’s representative confirmed, however, that [the applicant’s wife] was not a party to the FCCA proceedings File No. [number]. [The applicant’s wife] has now issued separate judicial review proceedings ([specified]) in relation to the cancellation of her visa. The Tribunal was advised the matter has been listed for hearing [in] June 2019.

    Are there any children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation?

33. The Tribunal is aware that the applicant has a very young son whose interests may be affected by this decision. The Tribunal notes that the applicant’s child was born in Australia and has automatically acquired Australian citizenship at birth. If the Tribunal cancels the applicant’s visa, it will not affect the child’s Australian citizenship status, which will remain.

34. Article 9 of the Convention on the Rights of the Child (CRC) states that State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.  It goes on to state at Article 9(4) that where separation results from action initiated by the State Party, such as deportation, the State Party will provide parents with information about the whereabouts of the absent parent.

35. The Tribunal accepts however the applicant’s contact with his son may be affected if he leaves Australia as a result of his visa being cancelled.  This will make direct physical contact with his son on a regular basis difficult, and makes for a difficult decision in this case.

36. The Tribunal notes the applicant’s wife’s FCCA proceedings are yet to be determined. The Tribunal also notes that [the applicant’s wife] has lodged a protection visa application which is currently before the Department. It is beyond the scope of this Tribunal to make findings regarding the cancellation of [the applicant’s wife’s] spouse visa or whether or not she will be granted a protection visa by the Department.

37. The Tribunal considers the best interests of the child are to remain with both his parents. The Tribunal accepts that the applicant and his wife have a close relationship with their son. The Tribunal gives these matters some weight.

38. The Tribunal has had regard to observations made by the Committee on the Rights of the Child about Iran’s compliance with the CRC and the submissions that it would not be in the best interests of [the applicant’s child] to relocate to Iran. The Tribunal notes however that [the applicant’s wife] and [child] voluntarily returned to Iran in the period September 2015 to April 2016. [The applicant’s wife] said she experienced some medical complications after the birth of her son and the Tribunal was provided with some medical reports from Australia and Iran. She claimed that she had to travel to Iran for medical treatment which was not as easily accessible in Australia.

39. The Tribunal finds it relevant that the [the applicant’s wife] chose to voluntarily return to Iran with her infant child for six months. The Tribunal finds it relevant that when questioned at the hearing [the applicant’s wife] said that she had the support of her family to look after her and her son in Iran. The Tribunal finds [the applicant’s wife’s] decision to return to Iran is inconsistent with her claim that she has concerns about the welfare of her son returning to Iran.  

40. She claims that she was detained for about [number] days and questioned about the applicant’s involvement in protest activity in 2009 in Iran. She claims she was told to ring the applicant and tell him that he must return to Iran. After [number] days her uncle who had political connections paid a US$[amount] bribe and she was released. She remained in Iran for a further five months after the incident.

41. The Tribunal found the applicant’s claims about being detained and interrogated in Iran lacking in credibility.

42. The Tribunal finds it difficult to accept that [the applicant’s wife] would be stopped and questioned at the airport in 2015 about the applicant’s involvement in protest activity dating back to 2009. The Tribunal also finds it inconsistent that the applicant’s wife would be detained and interrogated in 2015 when she was able to depart Iran without any problems from the authorities in 2012 when she travelled to [Country 5] to meet the applicant for a holiday. The Tribunal also finds it difficult to accept [the applicant’s wife] would choose to voluntarily remain in Iran for a further five months after being separated from her infant child, detained and interrogated for [number] days. The Tribunal does not accept that [the applicant’s wife] came to the adverse attention of the authorities in Iran because of her husband’s profile. The Tribunal does not accept that [the applicant’s wife] or the applicant are persons of any interest to the Iranian authorities.

43. The Tribunal finds that the applicant’s child can accompany his parents to Iran or [Country 1] if the applicant can apply for a visa for his wife and son to reside there. 

44. It was also submitted that the applicant and his wife are Christians, and they have raised the additional concern that if their child were to be educated in Iran, he would be taught the Islamic faith at school. This would be against their wishes as his parents but they would have no recourse against this.

45. The Tribunal questioned the applicant about his Christian beliefs at the hearing. The Tribunal found the applicant evidence’s about his religious beliefs vague, inconsistent and lacking credibility. The applicant said that when he arrived in Australia he was a Shia Muslim. After he was granted his protection visa he became interested in Christianity but he did not mention it and kept it to himself. He has not taken any sacraments. He has only been to church about 15 times in the eight years he has been in Australia. He claims he first went to a Jehovah’s Witness Church with his wife and after that he attended a Uniting Church out of personal interest. The Tribunal notes that when the applicant’s protection visa was cancelled and he responded to the notice, he did not mention he was a Christian. The applicant’s wife claimed that when she arrived in Australia she was interested in the Protestant religion however she is now a Jehovah’s Witness. She has not undertaken baptism. The Tribunal found [the applicant’s wife’s] evidence about her religious conviction limited and lacking in credibility.

    Australia’s non-refoulement obligations

46. It was submitted that the claims made by the applicant in his protection visa application remain the primary reasons why Australia owes an obligation not to return him to Iran.

47. It was further submitted that the applicant’s brother remains in prison in Ahwaz and the applicant is an Ahwazi Arab and has used social media in the past to promote his culture. When questioned at the hearing he was unable to produce any examples of social media posts.

48. It was submitted that such actions have been perceived by the Iranian authorities as anti-regime. It was submitted that this is evidenced by the compelling testimony of his wife who spent a month in the custody of the authorities while being interrogated about her husband’s activities and whereabouts. As detailed above the Tribunal did not accept [the applicant’s wife’s] evidence that she was interrogated or detained in Iran.

1. It was submitted that the applicant would be unwilling to be silent about his political opinions about the ill-treatment towards Ahwazi Arabs by the Iranian government and as such there is a real chance that his actions in the future would place him within the profile of such activists. In assessing the applicant’s claims the Tribunal notes that since he was granted a protection visa in May 2010 there is no evidence that he has spoken out or participated in any political activity or voiced an opinion in support of the Ahwazi Arabs. The Tribunal also finds the applicant did not raise these issues in his protection visa application. The Tribunal does not accept the applicant’s claims that he holds political opinions about the ill-treatment of Ahwazi Arabs in Iran.

2. In conclusion the Tribunal has considered whether Australia would breach any international obligations, such as non-refoulement, should the visa remain cancelled. The Tribunal finds the applicant has [Country 1] citizenship and can return there should he choose not to return to Iran.

   Whether there are mandatory legal consequences to a cancellation decision

3. The Tribunal acknowledges that the applicant is prevented from making a valid application for most other visas by s.48 of the Act and from making an application for a protection visa by s.48A of the Act. The applicant is currently on a Bridging E visa to enable him to remain in the community while awaiting the outcome of his application for review with the Tribunal.

4. The Tribunal finds that the applicant would be in a position to apply for a Bridging E visa if he seeks judicial review or Ministerial intervention following a negative decision by this Tribunal.

100.   It was submitted that if the applicant is not granted a Bridging E visa he would be detained and thereafter be removed from Australia with no further assessment of whether Australia has non-refoulement obligations in respect of him. Given that Iran will not at present accept involuntary returnees, there is a real risk that the applicant could be detained indefinitely.

101.   As detailed above the Tribunal finds the applicant has [Country 1] citizenship and can return to [Country 1] should he choose not to return to Iran. The Tribunal dos not accept the applicant’s removal from Australia would be in breach of Australia’s non-refoulement obligations under relevant international agreements.

Any other relevant matters

102.   The Tribunal accepts that the applicant does not wish to return to Iran and returning to Iran would cause him hardship if his son and wife remain in Australia. The Tribunal also acknowledges the distress to the applicant’s wife and child caused by the visa cancellation.

103.   The Tribunal finds however that the circumstances of this case outweigh the applicant’s desire to remain in Australia and the disruption caused to his family.

104.   The Tribunal finds that the grant of the protection visa was based on incorrect information. As stated above the Tribunal finds the applicant has [Country 1] citizenship and is not a person of interest in Iran. The Tribunal finds that the applicant entered Australia as the holder of a [Country 1] passport that belonged to him, and that he is known as [Mr B]. He has therefore answered questions relating to his alias, citizenship, travel and residential history incorrectly in his protection visa application. The Tribunal finds that if the applicant disclosed the correct information he would not have been found to engage Australia’s protection obligations. The Tribunal finds it inappropriate that he should benefit as a result of this incorrect information even in circumstances where he has now sponsored his wife and has a child born in Australia.

105.   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

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

Christopher Smolicz
Member

Peter Britten-Jones
Deputy President

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.