1805937 (Refugee)

1805937 (Refugee) [2020] AATA 5174 (19 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1805937
COUNTRY OF REFERENCE:                   Iran
MEMBER:Michael Hawkins
DATE AND TIME OF
ORAL DECISION AND REASONS:         19 November 2020 at 10:14 am (QLD time)
DATE OF WRITTEN RECORD:                8 December 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 08 December 2020 at 3:55pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – reformist imam threatened by government and religious authorities – two voluntary returns to home country and use of own passport at airport there despite claimed fear of harm – returns to visit sick mother – low-profile stay in home village with no public activity or contact with associates – country information – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41
CASES
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Briginshaw v Briginshaw (1938) 60 CLR 336
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
Saleem v MRT [2004] FCA 234
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tarasovski v MILGEA (1993) 45 FCR 570
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 February 2018 to cancel the applicant’s protection visa under the Migration Act 1958 (the Act).
At the hearing on 19 November 2020 the Tribunal made an oral decision and gave an oral statement of decision. The following is the written record of the reasons for that decision.
STATEMENT OF DECISION AND REASONS
The delegate cancelled the visa on the basis that they believed there had been non-compliance with s.101 of the Act, in that incorrect answers were given or provided in the applicants application form. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant[s].
The applicants appeared before the Tribunal on 19 November 2020 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act in the following respects: A non-citizen must fill in or complete his or her application form in such a way that:
a.all questions on it are answered; and
b.no incorrect answers are given or provided.
The delegate concluded that the applicant had not complied with section 101(b) of the Act as he had provided incorrect answers to questions 41, 42, 43, 44, 45, and 46 of the form 866C in his application for a visa.
Notice of Intention to Consider Cancellation of Visa
Recourse to the s.107 Notice of Intention to Consider Cancellation (NOICC) at folio 29 on the Departmental file [has] particularised information deemed to be in breach of ss.101(b) of the Migration Act:
…[In] July 2011 you entered Australia at Christmas Island as an Irregular Maritime Arrival.
On 11 September 2011 you submitted a statement of claims statutory declaration in support of your Protection Obligations Evaluation in which you gave your reasons for seeking Australia's protection. Based on these claims a Departmental delegate handed down a positive finding on 2 November 2011 and you were subsequently invited to lodge a Protection visa application.
On 8 February 2012 you lodged a Form 866 -Application for a Protection (Class XA) visa.
At question 41 of Part C of the Form 866, which stated: 'I am seeking protection in Australia so that I do not have to go back to (Give name of country of countries)' you stated: ' Iran' .
At question 42 of Part C of the Form 866, which stated: 'Why did you leave that country?' you stated 'Please see attached'. In the attached statement of claims dated 11 September 2011 you declared:
For the past ten years I have come to the realisation that Islam was not a religion I was happy practicing and I was beginning to falter in my beliefs. My discontent had built up over an extended period of time. After the Presidential election two years ago, in the Mosque I was giving the congregation my point of view. I told them I was against the violence and against the government forces that used violence against the people who were protesting the election. The government attacked the demonstrators who were just regular people using their free will to protest. I was the local clergyman and a lot of my people were jailed for protesting. They demanded to know as a clergyman what my opinion was. They were disclosing their pain to me as their local clergyman. I also supported Ayatollah Montazeri and his point of view and he was not popular with the government and when the Ayatollah passed away I attended the funeral and this also upset the Besiji and the Sepal, and this was when I really began to get attacked.
I was very unhappy about the way the Government responded as it was against my principles and morals. Then the Besiji and Sepah made complaints against me to the Special Clergy Court. They said I was an antigovernment clergyman. The Besiji and Sepah said I was against the Valayat Fagheh. "Valayat Fagheh" means the Iranian Supreme Leader who acts on behalf of God. The court said I was an Infidel. When I was in court, I was told I was an atheist and infidel and the punishment is death. However, they could not punish me by death as I was a clergyman for over 25 years and the people would not tolerate it. They told me to change my ways or the Besiji and the Sepal, would come to my home and kill me.
Fifteen days after I was at court, I did not change my ways and they came by and damaged my car. They threw a note that said this time is your car, next time we will chop you into small pieces in front of your house. This continual threatening went on for over 8 months. Ten days after damaging my car they asked me to attend the court again. They told me I had one week in which to go to the Mosque and retract what I had said and they wanted me to say that violence is acceptable. But I was not going to change. I told the people in the Mosque what the court said I had to do, but I refused to tell them that violence was ok. The Sepal, then came and took me to the Sepal, Centre and they were beating me. They put me in a dark and dirty place. I was bleeding.
The government tried to disconnect me from society. My brothers and sisters were calling me an infidel; they didn't want me in the house. They were inciting all my neighbours. They shut down my office. I was unemployed. The people from my Mosque were supporting me financially. [In] July the government and authorities when / left my house I saw they had broken my car window and threw red coloured fluid on my car and my front door. There was a note in the car that said your punishment is death but since we want to torture you, you will see your raped daughter's dead body. My wife and I cried and it was so terrible I decided I had to leave and stop this. The next day I bought a ticket to leave.
At question 43 of Part C of the Form 866, which stated: 'What do you fear will happen to you if you go back to that country?' you stated: 'Please see attached'. In the attached statement of claims dated 11 September 2011 you declared:
Now that I have fled if I was returned I would face certain death from the government and the Besiji and Sepah.
At question 44 of Part C of the Form 866, which stated: Who do you think may harm/mistreat you if you go back?'i: 'Please see attached'. In the attached statement of claims dated 11 September 2011 you declared:
The government will harm me, I was against the Supreme Leader and I have escaped a certain death.
At question 45 of Part C of the Form 866, which stated: 'Why do you think this may happen to you if you go back?' you stated: 'Please see attached'. In the attached statement of claims dated 11 September 2011 you declared:
I went against the religious state and they have already beaten me and I will be killed should I be sent back.
At question 46 of Part C of the Form 866, which stated: 'Do you think the authorities of that country can and will protect you if you go back? If not, why not?' you stated: 'Please see attached'. In the attached statement of claims dated 11 September 2011 you declared:
The authorities are the ones who will harm me, so they will not protect me. Iran is a religious state and I have gone against the state.
Departmental movement records, travel documents and passenger cards
You departed Australia [in] May 2014 and indicated on your outgoing passenger card you intended to spend most of your time in Iran. You returned to Australia [in] June 2014 and indicated on your incoming passenger card that you spent most of your time in Iran.
You departed Australia [in] March 2015 and indicated on your outgoing passenger card you intended to spend most of your time in Iran. You returned to Australia [in] April 2015 and indicated on your incoming passenger card that you spent most of your time in Iran.
[In] June 2014 you arrived in Australia at Brisbane International Airport on an Australian-issued Titre de Voyage travel document [omitted] and you were interviewed by an Immigration Inspector. You stated you visited your mother in Iran. You were asked if you had any other travel documents and you presented an Iranian passport, number [omitted]. The entry and exit stamps indicate you used your genuine Iranian passport to travel in and out of Iran through Imam Khomeini Airport in Tehran.
Consideration regarding evidence
Your Protection visa was granted on the basis you satisfied the Minister you engaged Australia's protection obligations under the Refugees Convention. You claimed your life was in danger and your presence in Iran placed your family's lives in danger. This claim was fundamental to the determination you are a person to whom Australia has protection obligations.
Two years after the grant of your Protection visa you voluntarily travelled to Iran, and voluntarily travelled to Iran on a second occasion less than a year later. According to the entry and exit stamps in your Iranian passport, your port of entry was Imam Khomeini Airport in Tehran.
You entered Iran in 2014 following the grant of your Protection visa and returned there in 2015 for a cumulative total of over two months. I consider your life was not under threat in the context of the claims you made. It appears despite your claims of being the target of Iranian government agents, you voluntarily travelled to Iran through an international border checkpoint controlled by the Iranian authorities, without any apparent harm or impediment.
I consider your voluntary travel to the country of persecution after you were granted protection appears to be inconsistent with a person who holds a genuine fear of harm in that country. You made claims against the Iranian government and the Iranian intelligence services, however given you voluntarily returned on two occasions to Iran under the same identity as your claimed adverse profile without any apparent harm or impediment, I consider this indicates you are not of interest to the Iranian authorities as you claimed in your Protection visa application…
The delegate stated that the incorrect information provided by the applicant was material to the grant of his Protection visa it appears that the applicant may not have engaged Australia’s protection obligations.
The delegate concluded that the applicant had not complied with Section 101(b) of the Act as the applicant had provided incorrect answers to the following question in his application for a Protection visa. The delegate noted the following information:
·At question 41 of Part C of the Form 866, which stated: 'I am seeking protection in Australia so that I do not have to return to (Give name of country of countries)' you stated: 'Iran' . This answer is incorrect because evidence available to the Department indicates you were prepared to voluntarily travel back to Iran for a cumulative period of two months using your Iranian passport and you remained there without any apparent harm or impediment.
·At question 42 of Part C of the Form 866, which stated: 'Why did you leave that country?' you stated 'Please see attached'. In the attached statement of claims dated 11 September 2011 you declared you were being persecuted by the Iranian government and that they had made threats against the lives of you and your family. This answer appears to be incorrect because evidence available to the Department indicates you twice voluntarily travelled back to Iran for a cumulative period of two months using your Iranian passport and remained there without experiencing any apparent harm or impediment.
·At question 43 of Part C of the Form 866, which stated: 'What do you fear will happen to you if you go back to that country?' you stated: 'Please see attached'. In the attached statement of claims dated 11 September 2011 you declared if you had to return to Iran you would face certain death at the hands of Iranian government agents. This answer appears to be incorrect because evidence available to the Department indicates you voluntarily travelled back to Iran for a cumulative period of two months using your Iranian passport and remained there without any apparent harm or impediment.
·At question 44 of Part C of the Form 866, which stated: 'Who do you think may harm/mistreat you if you go back?' you stated: 'Please see attached'. In the attached statement of claims dated 11 September 2011 you declared the Iranian government would harm you. This answer appears to be incorrect because evidence available to the Department indicates you voluntarily travelled back to Iran for a cumulative period of two months using your Iranian passport and remained there without any apparent harm or impediment.
·At question 45 of Part C of the Form 866, which stated: 'Why do you think this may happen to you if you go back?' you stated: 'Please see attached'. In the attached statement of claims dated 11 September 2011 you declared you had already been beaten and the Iranian authorities would kill you if you returned. This answer appears to be incorrect because evidence available to the Department indicates you voluntarily travelled back to Iran for a cumulative period of two months using your Iranian passport and remained there without any apparent harm or impediment.
·At question 46 of Part C of the Form 866, which states: 'Do you think the authorities of that country can and will protect you if you go back? If not, why not?' you stated: 'Please see attached'. In the attached statement of claims dated 11 September 2011 you declared it was the Iranian authorities who were persecuting you, and so they would not protect you. This answer appears to be incorrect because evidence available to the Department indicates you voluntarily travelled back to Iran for a cumulative period of two months using your Iranian passport and remained there without any apparent harm or impediment.
The NOICC notes that the delegate considered that the applicant has not complied with section 101(b) of the Act as he has provided incorrect answers to questions 41,42,43, 44, 45 and 46 of the form 866C in his application for a visa. If the applicant has failed to fill in their application form in such a way that no incorrect answers are given or provided their visa may be cancelled.
The NOICC notes that by failing to comply with section 101 (b) of the Migration Act 1958 the applicant's subclass 866 Protection visa is liable for cancellation.
Response to NOICC
The applicant responded to the NOICC on 24 January 2018 which attached a statutory declaration which stated the following:
1.    I make this statement in response to the letter I received from the department of immigration informing me of their intention to cancel my visa.
2.    I understand the reasons in their letter but I can provide an explanation.
3.    I understand that I should have sought permission from the department before I tried to return to Iran. I did not seek specific legal advice before I left because I thought I had permission.
4.    I visited the Iranian embassy in Canberra and spoke with their officials about returning to Iran. I explained that I desperately had to see my mother in Iran as she was ill. They understood that I had a permanent visa, a protection visa, but they told me that if the stay was short and I was not engaging in any open activities in Iran I could return to see her.
5.    My mother is very old and has heart problems. I did not know if I was ever going to see her again. My father has passed away and all I have is my mother.
6.    My reasons for leaving Iran are all completely true, I was not going back as a tourist or to be out in public around Tehran, I was at my mother's home in their village, [Name], there are only 300 people that live here, it is very quiet and was indoors the whole time. I was not out in Tehran or Qom, I was just at my mother's home.
7.    The embassy worker said that this was acceptable and I believed him.
8.    I am not a lawyer and I do not know refugee law, I just believed that this was all correct and I had done the right thing. I had looked to get permission first, which is why I asked the embassy about this.
9.    I ask the Australian government to please not cancel my visa, I love being in Australia and do not want to be returned to my country.
Departmental Decision to cancel the applicant’s visa under s.109 of the Act

The Departmental delegate proceeded to cancel the applicant's subclass 866 visa in a decision made on 27 February 2018.
Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the applicant in so far as the applicant failed to give correct information in his XA 866 Protection visa application.
The delegate noted that having considered the applicant’s reasons why he disputes there was not any non-compliance, they were satisfied that the grounds for cancellation exists.
The delegate noted that in his response to the NOICC, the applicant provided conflicting information.
The delegate made the following assessment of the applicant’s response and all the prescribed circumstances as set out in r.2.41 of the Migration Regulations:
(a)      the correct information
The visa holder claimed that he would be killed if he returned to Iran because of his views towards government ideology, particularly in regard to religion.
The correct information is the visa holder was not of interest to the Iranian government and did not hold the claimed profile of interest to the Iranian government in Iran at the time of his Protection visa application.
In regard to this consideration I give no weight in the visa holder' s favour.
(b)      the content of the genuine document (if any)
The visa holder used an Iranian passport, sourced from the Iranian embassy in Canberra and in his genuine identity, to travel in and out of Iran through Tehran airport. This is significant in terms of the claim he made that the Iranian government is unable to protect him and that he faced certain death at the hands of the Iranian government, the Basij and the Sepah were he to return. Given the visa holder was able to engage with the Iranian authorities upon return to Iran, utilising his genuine identity without any apparent harm or impediment, I consider this indicates he does not hold the claimed profile of interest to the Iranian authorities as claimed at the time of his Protection visa application.
In regard to this consideration I give no weight in the visa holder' s favour.
(c)      whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The decision to grant the visa holder his Protection visa was based on the visa holder meeting the definition of refugee within the meaning of the Refugees Convention and the relevant provisions of the Migration Act, and is a person to whom Australia owes protection obligations. Among other claims, the visa holder stated he would be at a real risk of being tortured and/or killed by the authorities in Iran because he is a high ranking member of the clergy who spoke openly to his congregation against the violence being inflicted by the government regime . This decision was made by departmental delegate in their finding dated 02 November 2011, having considered the claims put forward by the visa holder.
In the Protection Obligation Evaluation recommendation the following reasons are recorded for the positive assessment:
Having considered the claimant's testimony and independent reports on Iran, I am satisfied the claimant was charged by the Clerical Court and ordered not to practice or run his business for 12 months arising from his involvement in what is perceived as political activities in Iran, I therefore believe that the claimant has an imputed political profile that would make him of interest to the authorities and am satisfied that there is a real chance that he will suffer serious harm if returned to Iran.
(d)      the circumstances in which the non-compliance occurred
The visa holder maintains his protection claims were truthful and he only returned to Iran to see his sick mother. I acknowledge the visa holder may have had a range of personal circumstances which motivated his return travel, however regardless of these compassionate circumstances I consider his ability to return to Iran without apparent harm or impediment indicates he does not hold the claimed profile of interest to the Iranian government which was central to the grant of his Protection visa.
In regard to this consideration I give no weight in the visa holder's favour.
(e)      the present circumstances of the visa holder
The visa holder submitted he wishes to remain in Australia and does not want to return to Iran. I note following the grant of his visa he sponsored his wife and three children for a Partner visa application and they migrated to Australia in 2013.
I acknowledge these personal circumstances, however, consider the visa holder and his family have only gained access to reside in Australia due to the provision of incorrect information to facilitate the grant of a Protection visa.
Nonetheless, in regard to this consideration I give a little weight in the visa holder's favour.
(f) the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958
Following the issuance of the Section 107 Notice the visa holder continues to assert he genuinely required Australia's protection, even in the face of evidence to the contrary. In regard to this consideration I give no weight in the visa holder's favour.
(g)      any other instances of non-compliance by the visa holder known to the Minister
There are no other instances of non-compliance by the visa holder known to me. In regard to this consideration I give a little weight in the visa holder's favour.
(h)      the time that has elapsed since the non-compliance
Six years has elapsed since the non-compliance. I consider this is a lengthy period of time however I note the visa holder has only gained access to reside in Australia by intentionally submitting incorrect information to facilitate the grant of his Protection visa.
In regard to this consideration I give some weight in favour of the visa holder
(j)any breaches of the law since the non-compliance and the seriousness of those breaches
No breaches of the law by the visa holder since his non-compliance with Section 101 are known to me. In regard to this consideration I give a little weight in the visa holder's favour.
(k)      any contribution made by the holder to the community
The visa holder has not made any submissions in regard to any contribution made by him to the community.
In regard to this consideration I give no weight in favour of the visa holder.
My assessment of the visa holder's response includes the following other matters:
·Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.
If the visa holder's visa is cancelled the visas of his wife and three of his children will be considered for cancellation under Section 140(2). While such consideration is a consequence of the legislation, I acknowledge the impacts a cancellation would have on the dependent members of the family unit. In regard to this consideration I give a little weight in favour of the visa holder.
·Whether Australia has obligations under relevant international agreement s that would or may be breached as a result of the visa cancellation.
Non-refoulement:
If the visa holder's visa was cancelled, an International Treaties Obligations Assessment (ITOA) would be completed by a departmental officer before a decision was made to remove the visa holder to his country of origin. I consider a decision to cancel the visa holder's visa would not necessarily cause him to be returned to his country of origin in breach of Australia's non-refoulement obligations under the Refugees Convention. An ITOA would assess, among other things, whether the visa holder would be at risk of harm in his country of origin.
Rights of the Child and Family Unity Obligations:
Australia has signed the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR). Article 3.1 of the CROC states:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration. "
Australia has signed the International Covenant on Civil and Political Rights (ICCPR). Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:
"The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State ... "
Relevant Departmental policy instructions (PAM 3) relating to family separations state (at paragraph 76) that:
"Obligations apply to persons within Australia's territory and also to persons within Australia's jurisdiction. The obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement (this latter term refers to an obligation that people should not be removed to frontiers/territories where they face certain types of harm)... "
The Australian courts have found that generally it is in the best interests of the child to remain with their family. The visa holder has three children, born in Iran in [Years 1-3], who have resided in Australia since [August] 2013.
I consider the children would be accustomed to Australian life however they have not spent all of their formative years in Australia. The younger two children have spent four of their teenage years in Australia, however they were already [Ages 1 and 2] years old by the time they migrated to Australia. Given all of the children had reached high school age before leaving Iran, I consider they would readjust to life in Iran should the family need to depart Australia.
I do not consider cancellation of the visa holder's visa will result in separation of the family unit as all remaining family members would be considered for cancellation under Section 140(2) and could depart Australia together.
In regard to these considerations I give minimal weight in the visa holder' s favour.
·Whether there are mandatory legal consequences to a cancellation decision.
Should the visa be cancelled, the visa holder would be subject to Section 46(1) of the Act, which bars him from making an application for a further visa. Also, as an IMA the visa holder would become an unlawful non-citizen and would be subject to Section 46A(l) and barred from making a valid application for a further visa, including bridging visas, and may be detained. Further, a consequence of cancelling the Protection visa is that he would become subject to Section 48A(1B) of the Act barring him from making a further application for a Protection visa while in the migration zone. The visa holder will be unable to make any visa application while in Australia unless the Minister intervenes and lifts the decision bar.
If the visa holder's visa is cancelled, he will become an unlawful non-citizen and may be liable for detention under Section 189 of the Migration Act and removal from Australia under Section 198 of the Act. However, this can be mitigated by voluntary departure.
I consider these to be standard mandatory legal consequences as a result of a visa cancellation outcome and give these considerations minimal weight in the visa holder's favour.
The delegate concluded that when considered as a whole, the circumstances in this case led him to find the visa holder does not hold an adverse profile for Iran, nor did he at the time of his Protection visa application. Although the visa holder legally left Iran in 2011 using his own passport, he claimed if he returned he faced certain death from the Iranian government, the Basij and the Sepah. The visa holder returned to Iran after obtaining an Iranian passport and discussing his return with Iranian embassy officials, which I consider suggests his protection claims were incorrect. I consider his compassionate reasons for returning to Iran are not significant, as the risk of harm did not exist.
Review Hearing
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. Neither the applicant nor the representative objected to the conduct of a hearing by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal was satisfied that the telephone service was clear and uninterrupted; it confirmed that the applicant, the representative, the interpreter and the Tribunal Member could hear each other clearly and the Tribunal paused on several occasions to ensure that the applicant was satisfied with the clarity of the hearing.
The Tribunal conducted a hearing on 19 November 2020. The applicant attended the hearing with his family and representative. The hearing was assisted by an interpreter in the English and Farsi languages.
At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department of Immigration to cancel his protection visa under s.109 of the Migration Act. The Tribunal noted that a delegate of the Department of Immigration had formed a view that the applicant had provided incorrect information in his application for protection. As a result of this the applicant was served with a Notice of Intention to Consider Cancellation of his visa and given an opportunity to comment on those grounds.
The Tribunal noted that the delegate of the Department of Immigration had formed a view that the applicant had not complied with the requirements of paragraph 101(b) of the Migration Act, referring amongst other things to the answers the applicant had provided in his application for a protection visa regarding his protection visa claims. The Tribunal noted that based on all of the evidence before him the delegate proceeded to find that the applicant had provided incorrect information in his protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.
The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in his protection visa application, the material on the Departmental cancellation file, material provided at review and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the section 107 Notice of Intention to Consider Cancellation, and, if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant's benefit.
The Tribunal noted that the applicant was granted a subclass 866 (Protection) visa on 15 February 2012. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision and suggested to the applicant and his representative that the Tribunal might take the applicant's claims for protection provided to the Department of Immigration on 8 February 2012 as having been read. The applicant and representative agreed.
The Tribunal enquired as to the status of the visas of the wife and children. The applicant replied that his wife’s visa was also cancelled by the Department.
Conclusion on non-compliance
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.
Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1]
[1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004).
In Tarasovski v MILGEA[2] Wilcox J said that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[3] What Wilcox J said was subsequently applied in Singh v MIEA[4] and Housam Slayman v MIMA[5]. In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:
[2] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336.
[4] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383.
[5] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.^[6]
[6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32]
This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[7] and Sun v MIBP[8]. In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:
[7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555.
[8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52.
‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’
In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his statutory declaration are serious.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: that the answers given in the applicant’s Protection visa application form, were incorrect. In summary the particulars relied upon the applicant’s voluntary return to and residence in Iran on two occasions for a cumulative period of two months as the basis for finding the applicant had provided incorrect information in his Protection visa application about his fears, risk and profile in Iran.
The Tribunal noted that the delegate relied upon the applicant’s written response to the NOICC. The applicant was not invited to an interview with the delegate and was not interviewed by the delegate.
The applicant disputes that there was any non-compliance with s.101(b) of the Act when he completed his protection visa application.

The representative and the Tribunal discussed the issue of non-compliance at length. The Tribunal agreed that the mere fact that the authorities did not harm the applicant during this period when he returned to Iran is not evidence that he lied about his fears of persecution or the incidents that he said had happened when he made his application for protection.
The Tribunal also agreed with the basic proposition that if the lack of harm to the applicant on his return in 2014 indicates that the applicant’s subjective fears in 2012 were not objectively based, or that the objective basis had diminished, that does not of itself mean the applicant provided incorrect information about his subjective fears at the time of his application.
The representative submitted that the delegate’s conclusion that the applicant provided incorrect answers in his Form 866C are solely based on the delegate’s finding that the applicant voluntarily travelled back to Iran for a cumulative period of two months using his Iranian passport obtained from the Iranian Embassy in Canberra and remained there “without any apparent harm or impediment”. It was submitted that there is no evidence to establish that the applicant’s answers were in fact incorrect and that he deliberately lied about his claims that he feared harm in Iran due to his activities as a reformist Imam at the time he completed his Form 866C.
In reaching the conclusion that the applicant did not comply with s 101(b) of the Act, it is submitted the delegate did not properly consider whether at the time the applicant completed the Form 866C (in 2011) he answered the questions ‘correctly’ according to his subjective fear of persecution based on his past experiences of harm in Iran and his understanding of the situation in Iran at that time. In this regard, the applicant’s answers to Questions 41 to 46 of his Form 866C should be viewed alongside other information provided as part of his protection application, especially his answers in the entry interview and protection interview.
As noted by the High Court of Australia in the recent decision of ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 (14 October 2020) (at paragraph 11) the Code of Procedure in Subdivision AB of Div 3 of Pt 2 of the Act, which governs the procedure for the assessment of a visa application, empowers the Minister or a delegate “if he or she wants to” to “get any information that he or she considers relevant” on the condition that, if he or she “gets such information” he or she “must have regard to that information in making the decision whether to grant or refuse the visa”. The Minister or delegate is specifically empowered to invite the applicant to give additional information in any of three ways: “in writing”, “at an interview between the applicant and an officer” or “by telephone.”
The Tribunal noted that and noted that the applicant had not been invited to attend an interview with the delegate but had been invited to respond to the NOICC in writing, which the applicant did.
The representative responded by submitting that due to the nature of a protection application, in which the applicant must establish they have a subjective fear of serious harm and that that fear is well-founded, the High Court of Australia recognized in the same case that “[i]mpressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker.”[9]
[9] At paragraph 14, citing to Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 338 [40].
As the High Court’s decision in ABT17 makes clear, the above questions in the Form 866C are part of a rubric of information and evidence that is sought from protection visa applicants as part of the protection application process. Most often, as in this case, the answers in the Form 866C are accompanied by other information that forms the basis for the delegate’s assessment of the credibility and veracity of the applicant’s claims and evidence, including questions and answers in the applicant’s entry interview and protection interview, photos and other documents provided by the applicant, and submissions from legal representatives.
The representative submitted that at the time the applicant completed Questions 41, 42, 43, 44, 45 and 46 of his Form 866C he had a genuine fear of serious harm in Iran (arbitrary detention, torture and possible death) based on his past experiences of persecution in Iran. This is evidenced in his responses to questions in his entry interview and his protection interview, and supported by the documentary evidence he provided to the Department (employment card, letter of employment, school transcript, photos of him as an Imam), his statutory declaration provided with his protection application, and the submissions of his legal representatives at the time.
His answers and responses to questions put to him during his entry interview and protection interview were consistent, forthright, open, and honest. The delegate who decided his Protection visa says as follows:
I have considered the claimant’s claims and evidence which include evidence at his Entry and POE interviews. The claimant presented his claims consistently in all his dealings with the Department. His responses to questions during the POE interview were forthright, open, and honest and he did not attempt to exaggerate his claims.
There is nothing to indicate his testimony is false or misleading. Consequently, I am prepared to accept that his evidence is credible …
The representative further noted that the evidence presented as part of the applicant’s protection application was also found to be consistent with the country information concerning Iran at that time. After considering the applicant’s evidence and the available country information, the delegate who decided his Protection visa says as follows:
The claimant’s testimony at the Protection Obligations Evaluation Interview about his life, his religious and his political activities in Iran is broadly consistent with relevant assertions made at the Entry Interview and these claims do not run counter to reliable reports on Iran. In my view, the claimant has spoken in a compelling manner during interviews conducted by Australian Immigration Officials about his arrest and charge by Iranian authorities, the court case mounted against him by the Clerical Court and the period where he was unable to work to be able to support his family as an Imam for 12 months.
Having considered the claimant’s testimony and independent reports on Iran, I am satisfied the claimant was charged by the Clerical Court and ordered not to practice or run his business for 12 months arising from his involvement in what is perceived as political activities in Iran, I therefore believe that the claimant has an imputed political profile that would make him of interest to the authorities and am satisfied that there is a real chance that he will suffer serious harm if returned to Iran.
In light of all the evidence, the delegate responsible for determining the applicant’s claim for protection made a point of time assessment that the applicant had a subjective fear of persecution (largely based on his demeanour during his interviews and the detail and coherence of his answers in relation to his life history and experiences of harm in Iran), and that that fear was well-founded in light of country information concerning Iran and the Iranian regime at that time.
The representative stated that it is clear from a proper consideration of the applicant’s protection application (that embraces his interview as well as his statement of claims) that the applicant’s claims to fear persecution related to his fear of future harm as a result of past persecution by specific religious institutions within Iran (the Special Court of the Clergy, the basij, sepah) which was a consequence of his speaking publicly as an Iman in a way that offended those institutions and their conceptions of the religious-political authority within Iran.
It is clear from consideration of the applicant’s responses in his entry interview and protection interview that his fears at the time related to a certain time and period in Iran (under the former President Mahmoud Ahmadinejad) where hard-line religious institutions were given much more leeway to engage in the persecution of reformists like the applicant. His was not a generalized fear of arbitrary imprisonment, torture and possible death by ‘the Iranian state’ but is properly characterized (when his detailed responses in interview are considered) as the fear of serious harm from specific religious institutions within Iran who operated at the time within an overall hard-line conservative political environment.
The applicant provided convincing evidence as part of his protection application that he was a reformist Imam in Iran. He was a supporter of Ayatollah Montazeri and, as an Imam, expressed the same reformist views. This brought him into conflict with the Special Court of the Clergy, sepah and the basij, who acted without constraint within the persecutory environment created by a conservative, hard-line religious government under the former President Mahmoud Ahmadinejad. President Mahmoud Ahmadinejad was in power when the applicant left Iran in 2011. As noted in his statutory declaration dated 12 November 2020, in June 2013 (just after his wife and daughters arrived in Australia on partner visas), Hassan Rouhani was voted in as the new President of Iran. He remains the President of Iran to this day. The applicant regards him as more of a reformist like himself.
The Tribunal notes in the applicant’s statutory declaration dated 12 November 2020, he had clearly said to the delegate during his protection interview that whether he could return to Iran and what would happen should he return to Iran would depend on the state of the Iranian regime at the time of his return. Consistent with this response, his first return to Iran in 2014 followed the change of government in Iran in 2013, which saw a reformist President elected (Hassan Rouhani). This change of government in Iran in 2013 was instrumental in the applicant forming the view that there was less risk of him returning to Iran for a short visit so long as he kept a low profile, stayed in his home village, and did not make public speeches in the mosque about his religious/political views so as to attract the attention of the religious hardliners within sepah and the basij.
The Tribunal also notes in the applicant’s statutory declaration dated 12 November 2020, instead of returning to Iran in July 2012 to visit his wife and daughters, he arranged to meet them in [Country 1], due to his fear of return to Iran at that time. The former, hard-line conservative President (Mahmoud Ahmadinejad) was still in power in Iran in 2012 and it would have been very dangerous for him to return. This is consistent with his stated fear of return to Iran as set out in Questions 41-46 of his Form 866C and the other information he provided as part of his protection application in interview.
The applicant’s account is consistent with DFAT Country Information on Iran:[10]
Iran has witnessed tension between those advocating reforms to the country’s post- revolution political, economic and foreign policy direction, on the one hand, and those who see such reforms as a threat to the ideals of the Islamic Republic and the established order, on the other. Mohammad Khatami, a moderate, attempted reform during his presidential term (1997-2005), but was largely stymied by institutional elements. Mahmoud Ahmadinejad, a conservative, succeeded Khatami in 2005. Ahmadinejad was returned to office in a highly-disputed election in 2009, the outcome of which provoked large-scale demonstrations (see Critics of the State). The Ahmadinejad era concluded in 2013 … The current president, Hassan Rouhani, a centrist first elected in 2013, has pursued a policy of international engagement and economic renewal.
[10] DFAT Country Information Report Iran, 14 April 2020, at paragraph 5.6.
It is also noted in his statutory declaration dated 12 November 2020, the applicant’s immigration detention records at the time he completed his Form 866C and immediately thereafter – which were both prior to and after he received notification of a positive outcome to his protection application – indicate he was suffering from severe anxiety about the threats to his wife and daughters in Iran, who he was forced to leave in Iran due to the dangers of the sea voyage to Australia. These records are consistent with his stated fear of return to Iran in questions 41 to 46 of his Form 866C and the other information provided as part of his protection application in interview.
The Tribunal noted the applicant’s and the second-named applicant’s statutory declarations dated 12 November 2020, which state that the applicant and the family took all steps possible to protect his wife and daughters in Iran and to expedite their subsequent travel to Australia on partner visas and this is consistent with his fears for their safety at the time he answered questions 41 to 46 of his Form 866C and other information provided as part of his protection application in interview.
The applicant also stated in his statutory declaration dated 12 November 2020, that he remained fearful for his safety during his trips to Iran and took the following precautions:
i.he only returned to visit his very sick mother and after pleading from her to do so;
ii.the trips were each for a short duration only;
iii.he was picked up by his brother-in-law at the Tehran airport and driven to his home village of [Name] (where he stayed the entire time he was in Iran);
iv.he did not make any public speeches in the mosques stating his reformist religious or political views in order not to attract the attention of hard-line religious groups in Iran such as the basij and sepah;
v.he did not approach former friends who were associated with the reformist movement in Iran; and
vi.he stayed away from the city where he had been the Imam of the major mosque in the city, residing in his village that had a population of less than 300 people.
The applicant’s ongoing fear for his safety in Iran is consistent with the continued activity of hard-line religious elements within Iran, such as the basij. DFAT observes that “Basij units often repress political opposition elements and intimidate civilians perceived to be violating Iran’s strict moral code without formal guidance or supervision from their superiors.” [11]
[11] DFAT Country Information Report Iran, 14 April 2020, at paragraph 5.6.
The Tribunal found the representative’s submissions to be compelling and the actions of the applicant in returning to Iran in 2014 and 2015 to be not inconsistent with his claims made at the time of lodging his protection visa application to fear returning to Iran. Similarly, his actions in not returning to Iran in 2012, but meeting his family in [Country 1], were consistent with his claims made in 2011 to fear returning to Iran.
It is for all of the above reasons, the Tribunal finds there was no non-compliance with s.101(b) by the applicant in the way described in the s.107 Notice.
Should the visa be cancelled?
For the reasons stated above, the Tribunal finds that there was no 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 does not arise.
CONCLUSION
As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Michael Hawkins
Member

[2020] AATA 5174

19 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice