1806126 (Refugee)

[2019] AATA 5936

1806126 (Refugee) [2019] AATA 5936 (7 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1806126

COUNTRY OF REFERENCE:                   Iran

MEMBER:Nicole Burns

DATE:7 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 07 June 2019 at 4:29pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – race – Kurdish – particular social group – returnee from the west – failed asylum seeker – incorrect information in application – stateless Faili Kurd – other instances of non-compliance – later provided bogus documents – – best interests of children – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5J, 36, 101, 103, 107, 109, 116, 128, 134B, 140, 438
Migration Regulations 1994 (Cth), r 2.41

CASES

HB (Kurds) Iran CG [2018] UKUT 430 (IAC)

MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been

omitted from this decision pursuant to section 431 of the Migration Act 1958 and

replaced with generic information which does not allow the identification of an

applicant, or their relative or other dependant

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant provided incorrect answers on his protection visa application in breach of s.101 of the Act.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 28 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. He participated in the hearing via the telephone.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Non-disclosure certificates

6. The Tribunal has before it the applicant’s Departmental files, including the files relating to his visa cancellation. The delegate has placed restrictions on some of the material given to the Tribunal by the Department by certifying that disclosure of the material is contrary to the public interest under s.438 of the Act.

7. Where a certificate is issued under s.438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.

8. In this case the Departmental file contains two non-disclosure certificates issued under s.438 of the Act dated 20 March 2018.  The Tribunal is satisfied the certificates are valid.  The information covered by the certificates includes internal assessments, notes and correspondence relating to the applicant’s identity assessment, most of which has been discussed in the NOICC or before the Tribunal or are not in dispute. There is nothing adverse in the information which has not already been disclosed to the applicant by either the Department or Tribunal and the applicant has acknowledged that he provided incorrect information in certain respects at the protection visa application stage (discussed further below).  In such circumstances the Tribunal gives that information little weight.   

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

10. 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.

11. On the Departmental file is a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 8 November 2017, which advised the applicant that his visa may be cancelled under s.109 because of concerns that he did not comply with s.101(b) (Visa applications to be correct) of the Act.  He was advised to respond in writing.  On 1 December 2017 the applicant’s representative responded in writing to the NOICC. 

12. Having a look at the NOICC as a whole, the Tribunal is satisfied that it sufficiently informed the applicant of the basis upon which the cancellation was being considered and gave him an opportunity to respond. 

13. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

14. 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 as follows.

    Section 101(b) - visa applications to be correct

15. The non-compliance identified and particularised in the s.107 notice in relation to s.101(b) was that the applicant had provided incorrect information in relation to his Protection visa application, lodged on 24 January 2011.

16. Specifically, as set out in the notice, at the time the applicant completed Form 866C ‘Application for a Protection (Class XA) visa’ and provided answers to a number of questions including about his name, date of birth, ethnicity and citizenship (questions 1, 4, 7, 12, 19-21; and 23).  In answer to questions 41 to 46 in that form about why he left Iran and why he fears returning there (for example) the applicant referred to an undated statutory declaration, reproduced in the NOICC as follows:

    Why I left my country:
    I am Kurdish Faili, I have no identity or status in Iran.  I have faced persecution and assaults by the Basij.

    I have great fear of the Basij, they recognise me as a Kurdish Faili so am easily targeted by them. I have always lived in a small village and therefore known by the Basiji as Kurdish Faili.

    I have always wanted to have an education, however that was not possible because I am Kurdish Faili.

    My child was sick last year, we were taking him to a private doctor, the Basij stopped us and assaulted us, they beat me savagely, they demanded to see identity documents of course we didn’t have any.

    My child was terrified from that incident and fret if separately from me.

    We returned home and did not pursue to see a doctor.  The Basij came to our house a regular weekly basis harassing us, they would search our house.

    They would accuse us of having weapons, they accuse us of being members of Pejak.  They would ransack our barn, our food. The threats and abuse caused my mother to suffer further from her heart.

    We constantly lived in fear of them turning up.

    My wife’s father was taken by the Basij and tortured, they pulled his nails out.  This happened approximately six years ago, he was falsely accused.

    Due to that incident when the Basij were constantly harassing us my wife feared that one day they would take me like her father.  So in fear our lives we looked for smuggler to assist us.

    I used what savings I had and my families helped to pay for us to leave.

17. On the basis of this information – and in particular the applicant’s claims to be a stateless Faili Kurd who was discriminated against and mistreated in the past by the Basij in Iran as a result – the applicant was found to be a refugee and granted a protection visa on 28 January 2011.

18. However, subsequently, based in large part on inconsistent information about key matters provided by the applicant and his wife when they made a request under Freedom of Information provisions to have their names and dates of birth changed in 2011 and during interviews on 5 August 2015 in relation to their application for Australian citizenship, the delegate formed the view that the applicant had provided incorrect information in his protection visa application.  This was in relation to his name, date of birth, family relationships in Australia, (lack of) nationality and related protection claims.  In reaching that conclusion the delegate also relied on the fact the applicant and his wife (and two children) had returned to Iran for around [number] days in 2013, and that they also provided inconsistent information about the reasons for the visit and process for entering and exiting Iran at the time.  The delegate also relied on the applicant’s failure to provide any documentation to support his claimed identity, apart from producing – at the conclusion of the 2015 interview – an Iranian driver’s licence in the name and date of birth he had provided in his protection visa application.  The notice records that the delegate referred the licence to the Department’s Document Examination Unit (DEU) who found it was counterfeit: it was consequently deemed a bogus document and seized by the Department.   

    Response to the NOICC and the Tribunal’s findings on non-compliance

19. In his written response to the notice which sets out this information, the applicant (via his representative) acknowledged that he did provide incorrect information in his protection visa application and acknowledged that he did not comply with s.101 of the Act.  Nonetheless, the representative argued that the decision maker should exercise their discretion not to cancel the visa for various reasons, addressed separately below (elsewhere). 

20. In response the representative also provided identity documents which indicate that the applicant’s name is [applicant], born on [date] in [a city], Iran. 

21. In a written submission provided to the Tribunal the applicant’s representative states that the applicant did provide incorrect information at the visa application stage in relation to these key matters. 

22. At hearing the applicant acknowledged that he provided incorrect information at the visa application stage about his name, date of birth, family relationships in Australia, and nationality (and related protection claims as set out in the undated statutory declaration (set out earlier)). 

23. The Tribunal finds that the applicant provided incorrect information in his protection visa application (and related statutory declaration) about his name, date of birth, family relationships in Australia, and nationality.  The Tribunal finds that there was non-compliance by the applicant with s.101(b) of the Act in the way described in the notice sent to him under s.107 of the Act in this respect. 

24. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

25. 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).

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

27. The correct information: is that the applicant was an Iranian national (of Kurdish ethnicity) when he applied for protection, not a stateless Faili Kurd; his named is [applicant]; his date of birth is [date]; and his brother-in-law and sister-in-law (and their families) were present in Australia (at the time of the protection visa application).  The applicant’s case for his protection visa was based on his claim that he was owed protection obligations because he was a stateless Faili Kurd, which was not true.  The correct information is that the applicant had no fear of harm or mistreatment by the Basij or the Iranian authorities on the basis of his status as a stateless Faili Kurd.

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

29. 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 Tribunal finds the decision to grant the protection visa was based in large part on the incorrect information provided with the visa application that the applicant was a stateless Faili Kurd and faced persecution from the Iranian authorities as a result.  Had the applicant indicated that he was not stateless, the delegate may have concluded that he did not meet the criteria for the grant of the visa, given this was central to his claims.  

30. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his visa application and accompanying statutory declaration. 

31. In response to the NOICC the applicant claims (via his representative) that on their way to Australia, he and his wife were told by the people smugglers that the only way they could stay in Australia and avoid being deported back to Iran was to destroy their identity documents and claim to be Faili Kurds. They did so as they could only trust those people at the time. They had to keep making the same claim of being a Faili Kurd throughout the visa processing until now, as they did not want to be sent back to Iran.  As well, given that they had other relatives who had come to Australia making the same false claim of being Faili Kurds, if they had confessed to the truth, this would have jeopardised their relatives’ visas as well.

32. At hearing the applicant told the Tribunal they came to Australia as a big family with the same surname and the smuggler said that the Australian government would return them back on the same boat, unless they came up with a different story.  He said he was sorry.

33. The present circumstances of the visa holder: The applicant has been a resident in Australia for around nine years; he lives with his wife and three sons born in [years]; and his two eldest sons attend [school].  He has studied English in Australia and currently works [in an occupation]: he and his wife are planning to buy the business from the current owner.  The applicant’s brother-in-law and sister-in-law ([information deleted]) whom he came to Australia with (in 2010) live nearby, with their children. 

34. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: Subdivision C of Division 3 of Part 2 of the Act relates to the applicant’s obligations not to provide incorrect information or bogus documents and to notify any relevant changes of circumstance. Other than the non-compliance already referred to, there is no information before the Tribunal that would indicate any instances in which the applicant has failed to meet his obligations under this subdivision.

35. In response to the NOICC the applicant (via his representative) acknowledges that the applicant provided incorrect information at the protection visa application stage in relation to his name, date of birth, family relationships in Australia, and nationality.  The Tribunal is satisfied that the applicant responded to the NOICC without making any incorrect statement.  

36. Any other instances of non-compliance by the visa holder known to the Minister: As mentioned, the NOICC and delegate’s decision record notes that the applicant provided an Iranian driver’s licence at interview with the Department in 2015 which was subsequently found by the DEU to be counterfeit, potentially in breach of s.103 of the Act which prohibits a person from giving a bogus document, or causing a bogus document to be given to an officer or to a tribunal performing a function or purpose under the Act. However the Tribunal notes in this case the visa was cancelled because the delegate was satisfied there was non-compliance in relation to s.101(b) (visa applications to be correct) not s.103.

37. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant applied for the protection visa in January 2011 and over eight years have lapsed since then. 

38. Any breaches of the law since the non-compliance and the seriousness of those breaches: The Tribunal is not aware of any breaches of the law by the applicant since the non-compliance. 

39. Any contribution made by the holder to the community: In response to the NOICC the representative submitted that the applicant has made every effort to contribute to Australian society (he does not elaborate); he has obtained skilled certificates; and has improved his English.  He is also a tax payer and has recently set up his own business.  These themes were reiterated in the representative’s submission to the Tribunal.  He added that the applicant and his family regularly donate to UNHCR and other charities and provided character references from friends and the applicant’s GP. 

40. At hearing the applicant said he works hard in Australia – around 16 hours most days (in two shifts) – and has always paid his taxes and abided by the law in Australia.   He said that his priority is to support his family.

    Other factors: Departmental guidelines

41. While these factors in r.2.41 of the Regulations 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 government policy[1], as follows.

    [1] PAM3 ‘General visa cancellation powers’.

42. Whether there would be consequential cancellations under s.140: The applicant’s [son’s] visa was cancelled as a consequence of the cancellation of the applicant’s visa under s.140 of the Act.

43. Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation:  It is government policy that consideration for cancellation of visas must take into account any relevant obligations arising under international treaties. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[2]

    Best interests of the applicant’s children

    [2] PAM3 Visa cancellation instructions - General visa cancellation powers (s.109, s.116, s.128, s.134B and s.140).

44. As a signatory to the Convention of the Rights of the Child (CROC) Australia has certain obligations, including the best interest of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16).  The CROC also includes integrated but wider considerations including education[3] and health and disability considerations[4] for children within the jurisdiction of the State party.  Children who are refugees (defined as those who have been forced to leave their home and live in another country) are owed special protection and help.[5]

    [3] Article 28

    [4] Articles 23 and 24

    [5] Article 22

1. When assessing the best interests of a child, the Department’s Policy Guidelines set out the factors to be considered when exercising a discretionary power, including the child’s age and the degree of their integration into the Australian community as well as the child’s ability to resettle and integrate in the country of citizenship[6].

   [6] Departmental Policy Guidelines, Guiding Principles – Treatment of Children at A122

2. In response to the NOICC and in his written submission to the Tribunal the representative submits that the applicant’s children – [two] who are Australian citizens (and who do not know how to read or write Farsi) – would have to leave Australia if the applicant’s visa is cancelled, which would negatively affect their rights to live, grow and be educated in Australia. He submits that their removal (from Australia) would cause them irreparable psychological and social harm. 

3. The Tribunal has had regard to the submissions of the applicant’s representative to the effect that children’s lives are mired in difficulty in Iran, with some dying as a result of famine, street fights or illness; that the authorities are searching for ways to check the flow of child trafficking and labour and Iran is one of the only countries in the world that allows the death penalty for minors.  Whilst the Tribunal accepts these things to be the case, on the evidence before it, the Tribunal does not accept there to be a real chance or a real risk that the applicant’s children will experience any of these adverse events. That is because their parents are Iranian citizens and not stateless as originally claimed. As such the applicant’s children are also Iranian citizens and will have the same access to services and employment as other Iranian citizens[7].  The applicant’s wife gave evidence that her mother and siblings live and work in Iran, as do her husband’s parents and siblings and that their sons would return with them to Iran: in such circumstances the Tribunal does not accept their children would be vulnerable to dying of famine or child trafficking or labour.

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

4. The applicant has a [age] year old son  who was born in Iran and came to Australia with the applicant and his wife when he was around[age].  If the applicant’s visa is cancelled, the applicant’s eldest son’s visa will be cancelled as a consequence, under s.140 of the Act. The applicant’s [age] year old son and [age] year old son were born in Australia while their parents held permanent protection visas and as such are Australian citizens.  While their Australian citizenship will not be affected by the applicant’s (or his wife’s) visa cancellation, the Tribunal accepts that in practical terms if their parents are returned to Iran then they will have no choice but to return with them. 

5. The applicant’s eldest son is currently in grade [number] and has spent [nine] years in Australia.  He is able to speak Farsi but only reads and writes English, as do his younger siblings.  The applicant’s second eldest son was born in Australia and has spent his entire life here, and he is currently in grade [number] at [school].  Letters from the assistant principal at their school have been provided to the Tribunal showing how well integrated they both are as well as being responsible and motivated to learn.  The Tribunal accepts having spent nine years in Australia (with respect to the applicant’s eldest son) and his entire life in Australia for his  second eldest son, they are well integrated into the Australian community and they would face significant challenges resettling in Iran, even though they would do so as a family unit and with extended family support there.  They would also be leaving behind cousins who they have been brought up with in Australia.  The Tribunal accepts it would be very disruptive to their education, particularly for the eldest son who is [at] a formative and sensitive [age] and because both are unable to read or write Farsi. The applicant’s [age] year old son is an Australian citizen who has never entered Iran. The Tribunal accepts it is in the best interests of the applicant’s sons’ (including two who are Australian citizens) development to remain living in Australia with both parents.

   Australia’s non-refoulement obligations

6. The Tribunal has turned its mind to whether the cancellation would lead to the applicant’s removal in breach of Australia’s non-refoulement obligations.  The Tribunal finds that the applicant is a national of Iran and that this country is his receiving country for purposes of this assessment under s.5 of the Act.

7. The Tribunal notes at hearing the applicant confirmed that his claims at the protection visa stage to fear harm from the Basij and others as a stateless Faili Kurd and alleged problems he, his wife and other family members experienced as a result were not true.

8. It has been submitted that the applicant faces a well-founded fear of persecution on return to Iran for a number of reasons, including his Kurd ethnicity, and as a returnee/failed asylum seeker, considered separately below.

   Kurd ethnicity

9. In response to the NOICC the representative submits that being from the Kurdish ethnicity in Iran, the applicant’s and his wife’s entire ethnic community have been treated as  second class citizens in Iran by the Iranian regime and to a great extent by other Iranians. They said discrimination had increased since the Iranian revolution in 1978 which brought in power the current brutal Islamic regime. Due to the unfair discrimination that the Kurdish tribes receive in Iran, there have been and still are some resistant groups wanting Kurdistan’s independence from Iran. This in turn has caused further persecution and discrimination by the Iranian government against Kurds making life miserable for all Kurds. To escape from these constant discriminations and abuse, they fled from their home country.

10. The representative referred to two recent incidents which he submitted had given the Iranian authorities the excuses they needed to be extraordinarily tough with Kurds: i) a terrorist attack on the Iranian parliament claimed by ISIS and executed by several people, some of whom were of Kurdish background; and ii) Iraqi Kurds have voted ‘Yes’ to independence from Iraq and encourage the Iranian Kurds to do the same.

11. These contentions were repeated in the representative’s written submission to the Tribunal.  He stated as well that the applicant had been detained by the Iranian authorities for no reason several times, and the level of harassment and discrimination against the applicant and his family had reached a point that they could no longer tolerate.  However at hearing neither the applicant nor his wife indicated that the applicant had been detained by the Iranian authorities (including when asked specifically) and the Tribunal does not accept that this was the case.

12. At hearing the applicant made general statements about being discriminated against and facing problems as a Kurd in Iran.  He said their living situation in Iran was harsh and because of his background he was unable to be hired by the government and they did not have a comfortable life.   When asked if he ever experienced any specific problems as a Kurd, the applicant said they come from a Kurd dominated area – Kermanshah – with limited social services.  He left school after grade 4. He said some of his friends who graduated high school were unable to find jobs, like his brother who had completed a [qualification]. In Iran he worked in [various occupations].  He said his parents, [and various siblings] currently live in Iran.  He also said that there are not many Kurds in the government.

13. The Tribunal accepts that discrimination against ethnic minorities (including Kurds) occurs in Iran, and that some Kurds can be of interest to the authorities, imputed with anti-state/separatist political opinions.  It accepts that it may be difficult for some of the applicant’s relatives to obtain work in Iran, and they may experience a level of discrimination as submitted. 

14. Nonetheless, as discussed at hearing, Department of Foreign Affairs and Trade (DFAT) reports that Iran’s laws do not discriminate on the basis of ethnicity, including in relation to access to education, employment or housing. DFAT acknowledges that official and societal discrimination against ethnic minorities does occur in Iran, although it states that the overwhelming majority of ethnic minority communities are integrated into Iranian society, participate in politics and identify with the Iranian nation.[8]  Overall DFAT assesses that:

    ... members of ethnic minority groups face a moderate risk of official and societal discrimination, particularly where they are in the minority in the geographic area in which they reside. This may take the form of denial of access to employment and housing, but is unlikely in most cases to include violence on the grounds of ethnicity alone. The risk to members of ethnic minority groups who are involved (or are perceived to be involved) in activism is higher.[9]

    [8] Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 June 2018 at 3.1 and 3.3

    [9] Ibid at 3.6

15. With respect to Kurds, DFAT states that international sources report that the government uses security, media and other laws to arrest and prosecute Kurds for exercising freedom of expression and association.[10]

    [10] Ibid at 3.12

16. The UK Home Office reports that whilst Kurds in Iran face institutional discrimination which affects their access to basic services, the evidence (as found in the country guidance case of HB (Kurds) Iran CG [2018] UKUT 430 (IAC)[11] does not support the contention that such discrimination is, in general, at such a level as to amount to persecution.  They state that although the Iranian authorities have become increasingly suspicious of and sensitive to Kurdish political activities and that those of Kurdish ethnicity are thus regarded with even greater suspicion, the ‘mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even combined with illegal exit, does not create a risk of persecution...’  The report states that Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities[12].  However the applicant has not indicated that he has ever been involved in such activities, and the Tribunal finds that he has not and would not on return.

    [11] Heard 20-22 February and 25 May 2018 and promulgated 12 December 2018

    [12] UK Home Office, Country Policy and Information Note, Iran: Kurds and Kurdish political groups, January 2019, at 2.4.3 - 2.4.5,

17. The Tribunal accepts that Kurds and other ethnic minorities in Iran face a moderate level of official and societal discrimination in Iran, based on DFAT’s advice. However it does not accept that discrimination rises to the level of serious harm for the purpose of s.5J(5) or significant harm for the purposes of s.36(2A).  Given advice from DFAT that the overwhelming majority of ethnic minority communities are integrated into Iranian society and that Iran’s laws do not discriminate on the basis of ethnicity, as well as the fact the applicant has not experienced serious harm as a Kurd in the past in Iran, the Tribunal finds the applicant does not face a real chance of serious harm or a real risk of significant harm on return to Iran on the basis of his ethnicity. 

18. For the above reasons, the Tribunal does not accept on the evidence before it that there is a real chance that the applicant will suffer persecution involving serious harm as required by s.5J(4)(b) of the Migration Act or a real risk that he will suffer significant harm as defined in s.36(2A) of the Act, because he is a Kurd, if he returns to Iran now or in the reasonably foreseeable future.

    Returnee from the west and failed asylum seeker

19. The Tribunal has considered if the applicant faces a well-founded fear of persecution or a real risk of significant harm if returned to Iran as a returnee from the west and failed asylum seeker. 

20. The representative submitted that the applicant (and his wife) who have not been in Iran for several years will be in a real danger of being accused of collaborating with terrorists if they are to show up at any Iranian border.

21. As an Iranian citizen the Tribunal is satisfied the applicant would be able to obtain an Iranian passport and return to Iran.  The Tribunal accepts he may be questioned, given he will potentially re-enter on a new Iranian passport.  However there is nothing before the Tribunal to indicate that such questioning would lead to harm or would create difficulty for the applicant and his children. 

22. As discussed at hearing, with regard to treatment of returnees and failed asylum seekers, DFAT relevantly assesses that:

    According to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities. In such cases the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. [13]

    [13] Ibid at 5.25

23. Given such country information, the fact the applicant has no adverse profile, and given he did not experience any problems on return to Iran in 2013, the Tribunal does not accept the applicant would come to the adverse attention of the authorities such that it would result in a real chance of serious harm or a real risk of significant harm on return to Iran, be perceived to be ‘westernised’ or having spent considerable time in the west or as a failed asylum seeker.  It does not accept that he will be accused of having collaborated with terrorists, as submitted.

    Other (protection-related) claims

24. At hearing the applicant referred to the ongoing sanctions in Iran and noted difficulties for family and friends there even in obtaining basic food.  DFAT report that economic and political sanctions have been imposed on Iran since 2006 and the international deal that placed limits on Iran’s nuclear program has yet to result in significant improvements to the Iranian economy and is strongly opposed by the current US administration[14]. At hearing the applicant’s representative said a US/Iran war is quite possible; for anyone who returns it could be dangerous but particularly Kurds after nearly 10 years away; and in such a sensitive time the applicant could be seen as a spy.  The Tribunal accepts that tensions between Iran and the US have increased recently, with the US imposing harsher sanctions on Iran. However on the information before it, the Tribunal considers the suggestion that Iran and the US may go to war to be merely speculative. For these reasons the Tribunal is not satisfied there is a real chance or real risk that the applicant will face serious or significant harm if returned to Iran for any of these reasons advanced.

    [14] Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 June 2018 at 2.3

25. For the reasons above, considered individually and cumulatively, the Tribunal finds the applicant does not face a well-founded fear of persecution on return to Iran on any of the grounds advanced, or a real risk of significant harm if removed from Australia to Iran. Accordingly the Tribunal is not satisfied that the applicant’s removal from Australia would be in breach of its non-refoulement obligations under relevant international agreements if his visa is cancelled. 

26. Mandatory legal consequences to a cancellation decision: If the applicant’s visa is cancelled, the applicant will be an unlawful non-citizen and may be detained and liable for removal.  There are provisions in the Act which would prevent him from making a valid application for any visa without the Minister personally intervening. For the reasons set out above, the Tribunal has found the applicant’s removal from Australia would not be in breach of Australia’s non-refoulement obligations under relevant international agreements. It considers that as an Iranian citizen he will be able to safely return to Iran and the Tribunal does not accept that indefinite detention is a likely consequence of the cancellation decision.

27. Any other relevant matters: If the applicant’s visa is cancelled his extended family in Australia whom he, his wife (and their children) are close to will be adversely affected.  Specifically his sister-in-law[15] and her two daughters, aged [age] and [age], and his brother- in-law[16] and his children aged [age] and [age].  The Tribunal is satisfied that a significant degree of hardship may be caused to the applicant and in particular his three young children by separating from these family members in Australia, as well as to his relatives in Australia themselves.

    [15] The applicant’s sister-in-law’s permanent visa was cancelled as a consequence of her husband’s visa being cancelled: his case is the subject of a separate review (AAT No. [number])

    [16] The applicant’s brother-in-law’s permanent visa was cancelled: the AAT set aside that decision on 18 July 2016 (AAT No. [number]). 

    EXERCISE OF DISCRETION

28. In exercising its discretion, the Tribunal gives significant weight to the fact that the applicant intentionally misled the Department on a number of matters at the visa application stage, including his statement that he was a stateless Faili Kurd which was central to the decision to grant him a protection visa and that decision was based in large part on the incorrect information he provided.  As discussed, the Tribunal considers that had the correct information been known he may not have been found to engage Australia’s protection obligations and the Tribunal considers it is inappropriate that he should benefit as a result of this incorrect information. 

29. However, in this case, having given careful consideration to all the relevant circumstances, the Tribunal considers that other matters to which it is required to have regard outweigh those matters which favour cancelling the applicant’s visa.  In particular the Tribunal gives weight to the following matters.

    a.For the reasons above the Tribunal has found that it is in the best interests of the applicant’s children (including two Australian citizens) to remain living in Australia with both parents.  The Tribunal is obliged to treat the best interests of the children as a primary consideration and to consider Australia’s obligations under the CROC.

    b.The applicant and his wife appear to have worked hard to establish their lives in Australia over almost a decade; they are hoping to buy a business shortly; and references have been provided to the Tribunal attesting to their commitment to their children in particular and the community broadly, for example.

    c.Although the Tribunal has found cancellation of the applicant’s visa would not be in breach of Australia’s non-refoulement obligations, it accepts that there is a significant degree of discrimination and related hardship for ethnic minorities, including Kurds in Iran, as shown in the country information set out above (earlier).  This includes institutional discrimination which adversely affects their access to services and other opportunities.

    d.The applicant has consistently claimed that life was harsh in Iran – which is why they left initially – and would be on return.  The applicant left school in grade four and was required to work and help support his family in a number of semi-skilled or unskilled jobs thereafter.  Whilst not persecutory, the Tribunal is satisfied that given these considerations life would be difficult for the applicant and his family to a certain extent on return to Iran, particularly to a predominantly Kurdish area, which is impacted by ongoing sanctions and limited government services and resources, for example.

    CONCLUSION

1. 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 not be cancelled.

   DECISION

2. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

   Nicole Burns
   Member

   
   

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)     purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

   97Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

   98Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

   101Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   107Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)     giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)      stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)      requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

   108Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.