1806127 (Refugee)

1806127 (Refugee) [2019] AATA 3415 (7 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1806127
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 4:06pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – Ethnicity – Kurdish Faili – gender discrimination – does not accept that discrimination rises to level of serious harm – Iran progressive in relation to women’s rights – returnee/failed asylum seeker – perceived as westernised – does not accept applicant would come to adverse attention of authorities – claim of Stateless – inconsistent and incorrect information – bogus documents – non-compliance – applicant’s failure to provide documentation to support claimed identity – advised to destroy identity documents – best interest of children – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5J, 36, 101-105, 107, 109(1), 438
Migration Regulations 1994 (Cth), r 2.41
CASES

MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that they were satisfied that the applicant provided incorrect answers on her 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.
The applicant appeared before the Tribunal on 28 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from her husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by her registered migration agent. He participated in the hearing via the telephone.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Non-disclosure certificates
The Tribunal has before it the applicant’s Departmental files, including the files relating to her 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.
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.
In this case the Departmental file contains two non-disclosure certificates issued under s.438 of the Act dated 14 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 she 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
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.
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 her visa may be cancelled under s.109 because of concerns that she did not comply with s.101(b) (Visa applications to be correct) of the Act. She was advised to respond in writing. On 1 December 2017 the applicant’s representative responded in writing to the NOICC.
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 her an opportunity to respond.
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?
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
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 her protection visa application, lodged on 24 January 2011.
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 her 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 she left Iran and why she 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 always wanted to study and pursue my interests but was not able to because I am Kurdish Faili and not permitted to study in Iran.
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. The Basij also have a lot of spies in the community which adds to our pressure.
When I was due to give birth to my child, we could not get a doctor or a hospital to attend to me because I was Kurdish Faili. We are told that we are a burden on the Iranian society financially and so was told that by me having a child I was adding another burden to the society.
My husband had to get a local mid-wife to assist me I experienced horrific pain and caused me to be severely damaged.
My child was sick last year with a high fever, we were taking him to a private doctor, the Basij stopped us and assaulted us, they beat my husband savagely, they demanded to see identity documents of course we didn’t have any. They insulted me, pushed me while I was holding my child and caused him to be terrified.
We returned home and did not pursue to see a doctor. The Basij came to our house on a regular weekly basis harassing us, they would search our house. They would accuse us of being members of Pejak. They would ransack our barn, our food. The threats and abuse caused my mother in law to suffer further from her heart.
We constantly lived in fear of them turning up.
Approximately six years ago my father was taken by the Basij and tortured, they pulled his nails out, he was falsely accused.
Due to that incident when the Basij were constantly harassing us I was afraid that one day they would take my husband like my father.
My husband used what savings he had and our families helped to pay for us to leave.
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.
However, subsequently, based in large part on inconsistent information about key matters provided by the applicant and her husband 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 her protection visa application. This was in relation to her 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 her husband (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 her claimed identity, apart from producing – at the conclusion of the 2015 interview – an Iranian driver’s licence in the name and date of birth she had provided in her 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
In her written response to the notice which sets out this information, the applicant (via her representative) acknowledged that she did provide incorrect information in her protection visa application and acknowledged that she 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).
In response the representative also provided identity documents which indicate that the applicant’s name is [the Applicant], born on [date] in Iran.
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.
At hearing the applicant acknowledged that she provided incorrect information at the visa application stage about her 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)).
The Tribunal finds that the applicant provided incorrect information in her protection visa application about her 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 her under s.107 of the Act in this respect.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations, as follows.
The correct information: is that the applicant was an Iranian national (of Kurdish ethnicity) when she applied for protection, not a stateless Faili Kurd; her name is [the Applicant]; her date of birth is [date]; and her brother and sister (and their family members) were present in Australia at the time of the protection visa application. The applicant’s case was based on her claim that she was owed protection obligations because she 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 her status as a stateless Faili Kurd.
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).
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 she was not stateless, the delegate may have concluded that she did not meet the criteria for the grant of the visa, given this was central to her claims.
The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in her visa application and accompanying statutory declaration.
In response to the NOICC the applicant claims (via her representative) that on their way to Australia, she and her husband 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.
At hearing the applicant explained that they left Iran because they wanted somewhere peaceful to live, particularly for their children, along with her sister and brother and their families who are all Kurds from Kermanshah, northwest Iran. They were told by the smuggler at the time that they would be rejected (by the Australian government) if they said they were Iranians, which is why they said they were stateless. Because they all had the same surname they also changed their names and dates of birth to accord with when Failis were exiled from Iraq, also on advice from the smugglers. The applicant said she was deeply sorry.
The present circumstances of the visa holder: The applicant has been resident in Australia for around nine years; she lives with her husband and three sons born in [various dates]; her two eldest sons attend [school]; she has studied a number of courses here including [Course 1], [and various courses] with the hope to work in that field in the future. Her husband’s work involves [working in an occupation] [and] the applicant and her husband are planning to buy the business from the current owner. At hearing the applicant’s husband said he works hard – around 16 hours most days (in two shifts) and has always paid his taxes and abided by the law in Australia. He said his priority is to support his family. The applicant’s brother and sister whom she came to Australia with (in 2010) live nearby and she is close to them and their children, some of whom she regularly cares for whilst her sister (for example) studies.
The representative submits that the applicant has shown a strong record of integration and contribution to the Australian community, evidenced by her attempts to develop her professional skills and regular donations to UNHCR and other charities[1], in addition to her role as a mother.
[1] Receipts were provided to the Tribunal.
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 obligation 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 her obligations under this subdivision.
In response to the NOICC the applicant (via her representative) acknowledges that the applicant provided incorrect information at the protection visa application stage in relation to her 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.
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.
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.
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.
Any contribution made by the holder to the community: In response to the NOICC the representative submitted that the applicant has integrated well into the Australian community. She has obtained a [qualification in Course 1] and attended English courses. As a mother of three young children, she has raised them to uphold Australian values. Apart from her maternal responsibilities, she has been assisting her spouse with setting up their new business. At hearing the applicant clarified that her husband plans to buy a new business, but has not yet done so.
At hearing the applicant said she primarily cares for her three young children as well as studies and helps look after her siblings’ children at times.
Other factors: Departmental guidelines
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[2], as follows.
[2] PAM3 ‘General visa cancellation powers’.

Whether there would be consequential cancellations under s.140: There are no consequential cancellations in this case. The applicant’s eldest son’s visa was cancelled as a consequence of the cancellation of her husband’s protection visa under s.140 of the Act: that matter is subject to a separate review.[3]
[3] AAT No. 1806126
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.[4]
Best interests of the applicant’s children
[4] PAM3 Visa cancellation instructions - General visa cancellation powers (s.109, s.116, s.128, s.134B and s.140).
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[5] and health and disability considerations[6] 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.[7]
[5] Article 28
[6] Articles 23 and 24
[7] Article 22
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[8].
[8] Departmental Policy Guidelines, Guiding Principles – Treatment of Children at A122
In response to the NOICC and in his written submission to the Tribunal the representative submits that the applicant’s children – the youngest 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.
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 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[9]. The applicant 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.
[9] Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 June 2018 at 3.13 and 3.14
The applicant has a [age] year old son who was born in Iran and came to Australia with the applicant and her husband when he was around [age]. If the applicant’s husband’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 her husband’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.
At hearing the applicant said the main reason she left Iran was to ensure a peaceful and more secure life for her children. They only know Australia and she said she does not want her children to go where they do not belong.
The applicant’s eldest son is currently in grade [number] and has spent [the majority] of his [number] 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 [number] years in Australia (with respect to the applicant’s eldest son) and his entire life in Australia for her 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 in [specific] year of [school], 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
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 her receiving country for purposes of this assessment under s.5 of the Act.
The Tribunal notes at hearing the applicant confirmed that her claims at the protection visa stage to fear harm from the Basij and others as a stateless Faili Kurd and alleged problems she, her husband and other family members experienced as a result were not true.
It has been submitted that the applicant faces a well-founded fear of persecution on return to Iran for a number of reasons, including her Kurd ethnicity, on the basis of her gender, and as a returnee/failed asylum seeker, considered separately below.
Kurd ethnicity
In response to the NOICC the representative submits that being from the Kurdish ethnicity in Iran, the applicant’s and her husband’s entire ethnic community have been treated as second class citizens 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.
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.
These contentions were repeated in the representative’s written submission to the Tribunal. He stated as well that the applicant’s husband had been detained by the Iranian authorities for no reason several times, and the level of harassment and discrimination against the applicant’s husband and his family had reached a point that they could no longer tolerate. However at hearing neither the applicant nor her husband indicated that the applicant’s husband had been detained by the Iranian authorities (including when asked specifically) and the Tribunal does not accept that this was the case.
At hearing the applicant made general statements about being discriminated against and facing problems as a Kurd in Iran however was unable to provide any specific examples. She said her brother – who is a [professional] – had difficulties with his studies and establishing his own [business], noting that there is no room for progression or being offered decent positions in [organisations] for those who do not have an affiliation with the regime. However she gave evidence that her brother now has his own [business] and whilst the Tribunal accepts he may have experienced some level of discrimination in the past as a Kurd, it does not accept that any difficulties he experienced in the past amounted to persecution on the basis of his Kurd ethnicity.
The applicant also said that her husband’s younger brother, who has completed his master’s degree and applied for hundreds of jobs, is unemployed: she thinks he was rejected when prospective employers saw that he originated from Kermanshah, which is predominantly Kurdish. She said in general it is a very difficult situation for Kurds in Iran, noting that some family members had to move to the south – where it is very hot – to find work.
The applicant also referred to the fact that despite people in her home area of Kermanshah being the victim of floods two years ago, many are still living in tents and do not receive any social service or other government support.
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 as submitted, although notes this could be for a number of reasons.
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.[10] 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.[11]
[10] Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 June 2018 at 3.1 and 3.3
[11] Ibid at 3.6
With respect to the situation for Kurds in Iran, 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.[12]
[12] Ibid at 3.12
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))[13] 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.[14] However the applicant has not indicated that she has ever been involved in such activities, and the Tribunal finds that she has not and would not on return.
[13] Heard 20-22 February and 25 May 2018 and promulgated 12 December 2018
[14] UK Home Office, Country Policy and Information Note, Iran: Kurds and Kurdish political groups, January 2019, at 2.4.3 - 2.4.5,
At hearing the applicant said that there are nearly 40 million Kurds living in Iraq, Iran and Syria and because some activists want to unite the Kurdish population under one flag (‘Kurdistan’) the Iranian officials blame all Kurds and are tough on Kurds. She said that international agencies such as DFAT collect whatever information they can find through the media and from the Iranian government, but the actual story is totally different. Her concern is that people like her husband with limited education and lacking specific skills may be forced to work on the streets selling fruit for example, and in doing so become vulnerable to being approached and mistreated by the authorities.
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 her ethnicity.
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 she will suffer significant harm as defined in s.36(2A) of the Act, because she is a Kurd, if she returns to Iran now or in the reasonably foreseeable future.
Women in Iran
The Tribunal has considered the applicant’s claims to fear persecution as a woman in Iran.
The representative submits that the applicant will suffer harshly as a woman who has to obey Sharia law on return to Iran. He submits that Iran has engaged over three decades in systematic and often egregious discrimination against women and that since the Islamic Revolution, Iran’s clerical rulers have been preoccupied with setting limits on the rights and role of women and has imposed gender discrimination under the rubric of applying Islamic law. He referred to laws that restrict women’s educational and professional opportunities, reinforce male control over the women in the family, impose gender segregation in many areas such as sports activities, requiring all women to wear dark and concealing uniforms, and adding discriminatory features to the criminal code.
At hearing the applicant said she felt restricted when she lived in Iran, in particular in the last city where she lived [which] was oppressive: she said she felt people’s gaze if she did not wear a proper hijab and preferred to stay at home. She referred to a number of websites which contain posts from Iranian citizens, and videos showing what happens to women who do not wear a proper hijab, including lashings and having acid thrown at them, and being raped in custody. She clarified that this has not happened to her in Iran, but she has heard many stories. When she was in Year [number] she was slapped by her school principal for not wearing the correct socks.
Furthermore, although she was not targeted by the Basij in the past as incorrectly claimed in her protection visa application, the applicant said the Basij are an ongoing matter for everyone in Iran but particularly for females. She said they can pick on women for anything. She added that the whole system imposes limitations on women, including there being no female judges; a woman without a husband is paralysed and cannot do anything by herself; a wife needs her husband’s (or her father’s) consent to go overseas; polygamy is lawful and legal; women are unable to do anything against their husband’s wishes including divorce; and women are punished for not wearing a proper hijab.
The Tribunal accepts there is discrimination against women in Iran and notes DFAT’s advice that, notwithstanding the government’s official commitment to women’s equality, hard-line Sharia interpretations and conservative cultural and social norms continue to limit the extent to which women are able to participate in Iranian society.[15] DFAT states that women face considerable barriers to their full participation in society; require the permission of a male guardian to travel alone and face considerable societal harassment for doing so, particularly in more conservative rural areas; and married women require the permission of their husband to leave the country.[16] Iranian women are also required to adhere to restrictive dress codes in public, and there are penalties for failing to do so, even if rarely applied.[17] Overall DFAT assesses that:
...most Iranian women face persistent societal discrimination and the threat of gender-based violence. Legislation, long-standing traditional values and gender roles continue to restrict the participation of women in the workforce and community. Activists attempting to promote women’s rights face a high risk of official discrimination, which may include arrest, monitoring, harassment, and travel bans[18].
[15] Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 June 2018 at.3.79
[16] Ibid at 3.80
[17] Ibid at 3.82
[18] Ibid at 3.89
However, despite such discrimination against women in Iran and at times severe restrictions, DFAT also state that by regional standards Iran is reasonably progressive in relation to women’s rights; women enjoy considerable legal protections in many areas, including personal safety, participation in the workforce, and mandatory schooling for girls; and the President has identified gender equity as a key government priority[19].
[19] Ibid at 3.78
The UK Home Office in a February 2016 Country Information and Guidance note on women in Iran relevantly states that:
Whilst women play a considerable and visible role in public sphere they continue to face systematic discrimination (in law and in practice), but this in itself does not generally amount to persecution.[20]
[20] UK Home Office, Country Information and Guidance, Iran: Women, February 2016 at 3.1.1,
Based on such country information the Tribunal accepts that discrimination against women occurs in Iran and there is a persistent threat of gender based violence. However it does not accept on the evidence before it that such discrimination and threat of violence amounts to persecution or a real risk of significant harm for all women there. In the applicant’s case, she has not indicated specific problems directed at herself in the past as a woman, apart from general claims about the requirements to wear restrictive clothing, and punishments if she does not. It accepts she was slapped by her principal at school for not wearing the correct socks but notes this incident occurred decades ago and is not serious harm. At hearing the Tribunal discussed with the applicant DFAT’s advice that whilst there are penalties under the Penal code for women who appear in public without a proper hijab including a fine or imprisonment, these penalties are very rare and DFAT understands ‘in practice women accusing of having bad hijab would most likely be escorted to police stain and asked to have a family member bring acceptable hijab, after which they could leave without sanction’.[21]
[21] Ibid at 3.82

Given these considerations and having regard to the evidence before it and country information about the status of women in Iran, including restrictions on dress, the Tribunal finds remote the chance the applicant would face serious harm or significant harm as a woman on return to Iran, including if she fails to wear a proper hijab as claimed.
Returnee from the west and failed asylum seeker
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.
The representative submitted that the applicant (and her husband) 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.
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 she may be questioned, given she 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 her children.
As discussed at hearing, with regard to the 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.[22]
[22] Ibid at 5.25
At hearing the applicant said she thinks DFAT accepts whatever the Iranian authorities claim however the Iranian authorities are skilful at targeting, arresting and torturing people. She referred to a friend of the family who went missing and six months later their burnt corpse was found on the side of the road (when she lived in Iran).
Given such country information, the fact the applicant has no adverse profile, and given she 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 she will be accused of having collaborated with terrorists, as submitted.
Other (protection-related) claims
At hearing the applicant referred to the ongoing sanctions in Iran and said that the likely war between Iran and the United States (US) is another reason why she is fearful about returning there. The sanctions have resulted in harsh conditions, and family and friends talk about their inability to buy fruit for their children, for example.
DFAT reports 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.[23] 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.
[23] Department of Foreign Affairs and Trade DFAT Country Information Report: Iran 7 June 2018 at 2.3
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 her visa is cancelled.
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 her 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 she 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.
Any other relevant matters: if the applicant’s visa is cancelled her extended family in Australia whom she (and her children) are close to will be adversely affected. Specifically her sister[24] and her sister’s two daughters, aged [age] and [age], and her brother[25] and his children aged [age] and [age]. At hearing the applicant gave evidence that she often helps look after her sibling’s children on weekends. The Tribunal is satisfied that a significant degree of hardship may be caused to the applicant and in particular her three young children by separating from these family members in Australia, as well as to her relatives in Australia themselves.
[24] The applicant’s sister’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.1718073).
[25] The applicant’s brother’s permanent visa was cancelled: the AAT set aside that decision on 18 July 2016 (AAT No. 1516843).
EXERCISE OF DISCRETION
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 her statement that she was a stateless Faili Kurd which was central to the decision to grant her a protection visa and that decision was based in large part on the incorrect information she provided. As discussed, the Tribunal considers that had the correct information been known she may not have been found to engage Australia’s protection obligations and the Tribunal considers it is inappropriate that she should benefit as a result of this incorrect information.
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 her husband 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 Kurds and for women in Iran, as shown in country information set out above (paragraphs [62] and [72]). For women in particular the country information indicates that there are severe restrictions placed upon them by law and practice, including their inability to freely move outside the home without the permission of their husband or another male relative, and constricting dress code requirements. The Tribunal notes DFAT’s statement that in Iran ‘Legislation, long standing traditional values and gender roles continue to restrict the participation of women in the workforce and community’[26]. It accepts that on return to Iran it would be expected that the applicant would adhere to these societal norms – including gaining her husband’s permission to travel alone and restrictive dress codes – and there would be consequences – sometimes serious and enshrined in law – if she defied such norms and expectations.
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 finished high school but has never worked there and her husband left school in grade four and was forced to work and help support his family in a number of semi-skilled or unskilled jobs thereafter. Whilst not of itself persecutory, the Tribunal is satisfied that given these considerations life would be difficult for the applicant and her 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.
[26] Ibid at 3.89
CONCLUSION
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
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.

[2019] AATA 3415

7 June 2019

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